Posted by Arabella Moen.

This article from the American Bar Association writes about the considerations that emerging companies need to make when raising capital in a slowing economy. After the record levels of investment in 2021, emerging companies, particularly in the technology sector, have “enjoyed increased valuations driven by greater competition among investors”. With this responsibility, they have been able to gain more access to capital. Yet with market conditions changing in 2022 due to higher interest rates and a tightening of the credit markets, investors are altering their investment strategies. In light of these changes, emerging companies will find that raising capital and securing financing is difficult, so must consider scaling back spending to reduce their “burn rate”, and perhaps their eventual downfall.

As with all startups and emerging companies, there will always be an endless array of issues to be aware of. In terms of financing, one important factor to consider is liquidation preferences, in which holders of preferred shares may receive payments before any amounts are actually paid to the common shareholders, who are typically the founders. In the event that the investor has negotiated a liquidation preference where they receive a multiple of the original purchase price, the investor may walk away with more than they have invested. What the emerging company needs to consider is that the founders themselves, and other common shareholders, may end up with little or no payments. They should look to limit an investor’s liquidation preference where possible. For example, include “a cap on the total amount the investor can receive in the event of a Deemed Liquidation Event.” Through making a compromise that meets both parties’ interests, everybody will be able to benefit.

Another consideration for emerging companies is cumulative dividends. This is something that most people presumably know about, especially those starting up their own business or looking to invest in a company. However, it is not that simple. Dividends tend to be non-cumulative, (paid only as declared by the company’s board of directors) but there are some instances where the investor may deem the investment to be risky, so can insist on cumulative dividends. This is when the dividends increase at a specified rate, “regardless of whether or not the company actually declares dividends on those shares”. They also carry a right to receive those dividends in priority over any other shares. For the emerging company it is vital to carefully consider the impact any cumulative dividends have on future cash flows, along with their effect on distributions in the event of liquidation. Cash burn is a common mistake of emerging companies, so making considerations for cumulative dividends early on will enable them to survive with prosperity in the long run.

These two huge factors are regularly overlooked by startups. With interest rates rising and the possibility that a recession is approaching, emerging companies may have to make tough decisions when raising capital. In addition, they must ensure they understand the terms of any financing documents they agree that will help protect the interests of all stakeholders in the future. After all, emerging companies do not want to be known as ’emerging’ in the long run, they want to be known as a stable, growing, and profitable business that everybody wants to invest in.

https://www.americanbar.org/groups/business_law/publications/blt/2022/10/down-rounds/

Arabella is majoring in finance and technology at the Stillman School of Business, Seton Hall University, Class of 2025.

Posted by Oliwia Kempinski.

“Cryptocurrency is far more than just a financial innovation – it’s a social, cultural and technological form of progress.” (Cointelegraph) Now, that is just crazy to me. I am part of a shifting generation, one could say at the brink of a fourth industrial revolution. And one of its wonders is cryptocurrency.

Can we talk about this concept for a second? Currency that came out of nowhere, making people rich (or poor). Cryptographic algorithms creating these so-called digital assets. Blockchain technologies regulating these fascinating cash flows. Its effect on the economy surpasses national boundaries and enables transactions completely free from intervention of third parties, say banks. It is far more accessible to the average person. Especially, in our current time, with inflation at 8.5%, it is interesting how crypto plays into the economy. There are two types of investors. The first considers crypto an “investment vehicle as a haven against inflation.” They re-invest and re-invest. The other type prefers to secure themselves with “stablecoins,” if one considers it an alternative to failing monetary policy. On the other hand, during a recession, cryptocurrency, too, is having a hard time. Some call it “crypto winter.” Risk-aversion strategies and raised interest rates are generally lowering crypto investment demand.

Cybercurrency encourages, surprise, cyber criminals. However, not as much as the overall assumption. Ever since legitimate crypto usage increased, cyber criminalism started to decrease. 2021, mere 0.15% of crypto transactions were illicit. But crypto currency’s biggest disadvantage is probably volatility. Many currencies can lose their value in the blink of an eye. One must be aware, that “the value of cryptocurrencies is not guaranteed because of the lack of commerical or central bank involvement,” among other things. Apart from the central bank digital currency (CBDC), of course. Invest at your own risk!

Of course, there are ways of “reading” the currencies. My father is very good at it. He has set rules when investing. He is always informed. The currencies he owns and trades with, he knows absolutely everything about. He knows what happens in the economy. He follows the value of the currency daily. He never sells at the peak and never buys at the low. He leaves himself margin for error. He puts calculated risk over greed. And he is always aware he may incur loss. Despite the best of calculations, there is no assurance of profit.

Oliwia is a Mathematical Finance major at the Stillman School of Business, Seton Hall University, Class of 2024.

“What is the economic impact of cryptocurrencies?” by Alexandra Overgaag: https://cointelegraph.com/explained/what-is-the-economic-impact-of-cryptocurrencies

Posted by Zaina Murad.

Elon Musk is the CEO of the company Tesla Motors and had previously made a bid statement on purchasing Twitter. However, soon after he rescinded his statement and stated that he was not given crucial information regarding the nature of the company. Musk stated that he wanted to terminate the deal due to being misreported the amount of spam and fake accounts on the social media platform. The CEO of Tesla had collected testimony from Twitter chief executive Parag Agrawal and the former head of security at Twitter, Peiter Zatko. Twitter, as a result, filed a suit against Musk by stating that Musk did not have proper evidence to terminate his bid.

An article published by Washington Post states that weeks before the trial, Musk suddenly became very willing to close the deal at its original price of $54.20 a share. According to legal experts, this is likely due to Musk realizing he was not in a great position to go into the trial and realized he would likely lose due to the depositions that were collected. In the article, Dave Ives who is an analyst at Wedbush Securities wrote, “This $44 billion deal was going to be completed one way or another.” This implies that Musk would have had to go through with the deal through legal proceedings or through going back to his original bid with the company. Twitter has not only dealt with problems regarding this deal in the past year but had also struggled with a stock decline and the loss of many senior executives and rank-and-file workers. Musk’s sudden decision to reinstitute this offer can prove to be a turning point for Twitter’s success.

Due to Musk’s offer, Tesla’s stocks have dropped which is detrimental to Musk’s personal wealth. Washington Post stated, “He had planned to finance the deal through a combination of loans and a $33 billion equity commitment tied to his own wealth, which would draw on investors.” Hence, the deal would be a large deal that Musk would be taking. Interestingly enough, Musk had also sold close to $7 billion of Tesla stock after the deal was going to court and before he had reinstituted his bid. His motives for doing so are unclear.

Overall, Musk’s ownership of the company would come with large changes to the social media platform. The platform would likely have no restrictions on the freedom of speech and unblock the former President of the United States from using the social media platform.

Zaina is a finance major at the Stillman School of Business, Seton Hall University, Class of 2024.

https://www.washingtonpost.com/technology/2022/10/04/elon-musk-twitter-deal/

Posted by Samantha Goldfarb.

The article The 2022 Midterm Congressional Elections and Their Impact on Business Lawyers, discusses the increasing polarization of Congress and how this idea effects the jobs of  business lawyers. One event in particular that has fueled this partisan nature in recent times is the capital breach of Jan. 6th (Anderson). Most people immediately think about how events like this will alter the nature of our country, yet do not think about how events like this will specifically influence the way business’s function. With the Midterm Elections, attention is being brought to the fact that there is a strong possibility that the chambers of Congress will shift. This forces business lawyers to think about how their employment opportunities will adapt to this. “Business lawyers will have to adjust their expectations and ‘asks’ accordingly depending upon their clients’ and/or company’s interests, which may or may not be in vogue under a new regime” (Anderson). The important thing for them to keep in mind is how they will position themselves with people in control.
Since the Democratic party only holds a slight majority, Anderson argues that the midterms will be sure to stir up alterations in Congress. The vice president is currently able to break the deadlocked tie in Congress. One third of the Senate will be up for election this term and all of the House will be up for election. The uneasiness of the upcoming election creates concern for businesses because if Congress switches hands, guidelines and practices of businesses could be unaligned with the new party that emerges to power. Companies will have to deal with the politics that are to come. The Dobbs decision is a prime example of current legislation that could cause tension for businesses. “For example, we have seen dozens of companies offer to pay for the travel expenses of employees, their spouses, and their partners to receive reproductive healthcare access if they live in states that have tightly restricted such access in the wake of Dobbs v. Jackson Women’s Health Organization” (Anderson). Depending on which political party you are associated with, this could either be a major advantage for businesses or a major disadvantage. How will businesses change their policies regarding this issue if Congress changes hands?
In terms of abortion, it is hard for give and takes to occur because Congress is in such gridlock over this issue. However, there is still hope that negotiation can occur and the area of business law will be impacted. The article stresses that since this bureaucratic environment is always developing, business lawyers need to keep up with these policy alterations. This is the best way for them to accurately direct their clientele in the right direction. I think that this article has a lot of interesting points that I did not previously think about if Congress changes hands.

Samantha is a political science major at Seton Hall University, Class of 2023.

https://businesslawtoday.org/2022/09/2022-midterm-congressional-elections-impact-on-business-lawyers/
Anderson, Caitlin A. “The 2022 Midterm Congressional Elections and Their Impact on Business Lawyers.” Business Law Today from ABA, Business Law Today, 21 Sept. 2022, https://businesslawtoday.org/2022/09/2022-midterm-congressional-elections-impact-on-business-lawyers/.

Posted by Steven Higgins.

On Thursday, October 6th, President Biden announced that he will be pardoning all prior federal offenses of simple marijuana possession. The move comes after there has been immense pressure on the administration to release those imprisoned on marijuana charges after it has been fully legalized in thirty-eight states across the country. The pardon decision will make an impact on over 6,500 individuals with prior convictions for simple marijuana possession, a White House official said, along with thousands more through pardons under D.C. law. However, the pardons will not be extended to those who weren’t U.S. citizens and were illegally in the country at the time of their arrest.

In addition to the pardon decision, President Biden has also called on the Secretary of Health and Human Services Xavier Becerra, and Attorney General Merrick Garland to commence a review of how marijuana is classified under federal drug laws. Maijuana is currently a schedule one substance under federal drug sentencing guidelines the same as heroin, LSD and is more serious than fentanyl. Biden also commented on the issue on Thursday “Just as no one should be in a federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either,” (CNBC). The remarks further cemented the presidents stance on issue as he reiterated that no one should be behind bars on marijuana charges as it has been legalized in various states over the past few years.

Cannabis companies also greatly benefited from the news of the pardons being implemented as it could be a indication of good things to come for the industry if the deregulation of cannabis continues. Companies such as Tilray Brands and Canopy Growth both saw surges as the pardons were announced gaining 30% and 22%, respectively (CNBC). However each stock still traded for less than four per share showing that there is still much room for growth throughout the industry.

Citations:

https://www.cnbc.com/2022/10/06/biden-to-pardon-all-prior-federal-offenses-of-simple-marijuana-possession-.html

https://www.foxnews.com/politics/biden-pardoning-all-prior-federal-offenses-simple-marijuana-possession

Steven is a finance major with a minor in wealth managmeent at the Stillman School of Business, Seton Hall University, Class of 2024.

Posted by Jamie Hamalainen.

The Coronavirus has brought about many worldwide issues since 2019, causing detrimental effects on the economy and many other aspects that affect people’s everyday lives. In order to combat these issues, there has been a great amount of work done to efficiently produce a vaccine and hopefully control the outbreak and lower the number of cases and hospitalizations. However, because of how contagious COVID-19 is and how the severity of the symptoms varies from person to person, companies began to require proof of vaccination to enter certain places or partake in events. Thus, businesses also started to require employees to become vaccinated and if they refused, the penalty would sometimes be job loss. There are two sides to the situation which are both difficult to argue against and personally, I understand both opinions and why people are very passionate about it. On one side, the employer is trying to keep everyone safe and healthy by requiring vaccination because it has proven to decrease the number of cases over time and has been extremely effective. Nonetheless, there are people who have certain exemptions to the vaccine mandate which could include religious, medical, etc. Therefore, the following question arises: should a business have the right to fire employees who refuse vaccination despite them having a valid reason to object?

According to The Wall Street Journal, a state judge ruled that “New York City police officers can’t be fired for refusing to get vaccinated against Covid-19” (Vielkind). In October of 2021, the former Mayor of New York City, Bill de Blasio, introduced vaccination requirements shortly before the Omicron variant caused a spike in cases. Because of this, many workers requested exclusion from the mandate because of religious reasons or, some decided to simply not follow it. Despite many employees’ opposition to the mandate, the federal judges upheld it, and “the current case, brought by the Police Benevolent Association of the City of New York, argued that penalties for noncompliance, including suspension and termination, could be arrived at only through collective bargaining” (Vielkind). Along with this, Justice Frank noted in his four-page opinion that the court agreed with the vaccine mandate and declared that it was “appropriate” and “lawful.’” However, in reference to employment, “‘the Court however does not see, nor have respondents established a legal basis or lawful authority for the [Health Department] to exclude employees from the workplace and impose any other adverse employment action as an appropriate enforcement mechanism of the vaccine mandate’” (Vielkind). This decision was announced shortly after New York City Mayor Eric Adams declared that the city would no longer demand vaccinations for the private sector but would maintain the obligation of some of the public workers in the city.

As stated by the city’s Health Department, the amount of COVID cases on September 23, 2022, was significantly lower than the amount in January and the number of people hospitalized dropped as compared to the number in April 2020. Therefore, there is evidence that the vaccination and other important factors, like masks and social distancing, have helped states slowly recover and keep citizens healthy. Relating back to the connection between the vaccine and employment, the city’s legal department finally filed an appeal since the verdict contrasted with each previous court that chose to keep the mandate as a requirement for employment. But the number of officers who have been fired or placed on leave due to the vaccine mandate has not been disclosed by the NYPD and PBA and PBA President Patrick Lynch stated that the mandate was, “‘an improper infringement on our members’ right to make personal medical decisions in consultation with their own health care professionals’” (Vielkind). In my opinion, I do agree that requiring workers to get vaccinated would ultimately be beneficial, but I think that certain exemptions should be allowed before firing an employee. There should be a compromise, which I believe they have eventually come to, which is only requiring workers to get vaccinated if their job forced them to come in close contact with others, like healthcare workers and some others. Overall, the Coronavirus has caused many issues in relation to not only health, safety, and the economy, but to law and ethics.

Link: https://www.wsj.com/articles/nypd-officers-cant-be-fired-for-refusing-covid-19-vaccine-judge-rules-11663971932

SHU Library Subscription: https://www.proquest.com/newspapers/nypd-officers-cant-be-fired-refusing-covid-19/docview/2717162428/se-2

Jamie is an accounting major at the Stillman School of Business, Seton Hall University, Class of 2025.

Posted by Thomas Cowden.

Everything changed on July 8th when Elon Musk decided he no longer wanted to purchase the $44 billion company Twitter. Elon Musk had been slowly growing his position of Twitter until he became the largest individual investor and agreed to purchase the company. As his concerns of Twitter grew, he pulled back on his decision to buy the company. He backed out of the deal. This has led to a court date on October 17th where Musk and Twitter will faceoff in Delaware Chancery Court. The case will be decided by Chancellor Kathaleen McCormick.

Elon Musk became discouraged to purchase Twitter mainly because of fake account and spam bots. He claims that the company was not able to give him an accurate estimate of what percent of twitter users are spam bots. Spam bots pose several problems including spreading false information, incite violence, and influence politics. This Wall Street Journal article tells us that “Twitter estimates that such accounts represent less than 5% of its monetizable daily average users, but says that the actual number could be higher. Mr. Musk argues that the figure is far higher” (Needleman, 2022). Musk, already having a heavy following on Twitter, has likely been exposed to spam bots firsthand. Elon Musk also claims that he was not consulted on business changes Twitter made including matters regarding personnel. This combination of issues caused Musk to back down from the purchase. Here’s what twitter had to say about this.

Twitter makes the claim that Musk is putting too much of the blame on spam bots to get out of the deal. Twitter believes the underlying reason Musk backed out of the deal was because market conditions got worse, and it effected his wealth. Twitter is now reaching out to everyone from investors, friends, and banks for information on communication for the deal. They are trying to figure out if he had any other concerns around the purchase of the company. I find it unlikely that Twitter wins this case. If Chancellor McCormick finds that Twitter misled Musk on the topics of spambots he would be cut loose.

Thomas is a finance major at the Stillman School of Business, Seton Hall University, Class of 2025.

Article Link: https://www.wsj.com/articles/elon-musk-twitter-trial-delaware-court-11661809622?mod=article_inline

Posted by Andrea Gonzalez.

The New York City salary transparency law aims to reshape how companies hire new talent. City officials stress that the measure seeks to close gender pay gaps and other disparities by including salary ranges for New-York based and remote roles. The law applies to companies with four or more workers based in New York that must post “good faith” salary ranges for their listings but do not need to include information about stock compensation, bonuses, and potential benefits. The law takes precedence over Colorado, and California recently established transparency measures.
The law, which took effect on November 2, can bring about a wave of belligerent conversations between managers and existing employees about their current salaries, says The Wall Street Journal. Management has resisted sharing salary information because it makes hiring more difficult, creates disruptions among existing employees, and gives competitors a glimpse of a company’s pay structures. Some employers plan to weather contempt by removing job listings from their websites or using other third parties for new talent. The law may affect the access to talent by different companies because people with attractive portfolios will now be able to scrap positions based on salary ranges.
While many New York City-based companies have tried to prevent the law, they are coming to peace with it by highlighting that in some positions, “it is not typical for an individual to be hired at or near the top range,” according to The Wall Street Journal. Furthermore, some of the listings by companies like PricewasterCoopers LLP and CVS show salaries with ranges as wide as three-hundred-thousand dollars at base and maximum at high managerial positions. The measure will further assert the need for Human Resources to train managers to deal with difficult conversations about why employees may not be getting the maximum salary.
To establish the validity of the state measures, lawmakers looked at Executive Order 11246, which states that employees reserve the right to inquire about, discuss, or disclose their own pay or that of other employees or applicants. In contrast, this law applies specifically to all government-funded industries and companies. However, many private corporations are partially government-funded, allowing states and city officials to tap into the salary transparency law.

Andrea is a student at the Stillman School of Business, Seton Hall University, Digital Editor of The Diplomatic Envoy, Class of 2025.

https://www.wsj.com/articles/jpmorgan-macys-and-other-companies-reveal-what-they-pay-workers-as-deadline-looms-11667086200?mod=article_inline

Posted by Jocelyn Duallo.

The Associated Press presents ongoing lawsuits in Pennsylvania about mail-in or absentee ballots. The federal court is dealing with the American Civil Liberties Union and a variety of other groups filing a suit, “seeking to have votes from mail-in or absentee ballots counted even if they lack proper dates on their return envelopes” (Associated Press). The concern over votes being rejected stems from the state Supreme Court ruling that requires by law the barring of ballots without accurate dates. The groups fighting over the ruling claim that the ruling “would violate provisions of the U.S. Civil Rights Act of 1964” because of a small dating error that is not used in the voting process (Associated Press). Hence, the lawsuit is to ask the court to continue the counting of all ballots regardless of the incorrect date or missing date on the ballot.
The groups fighting this ruling include but not limited to the American Civil Liberties union, NAACP, League of Women Voters, and Common Cause (Associated Press). Other groups such as the Philadelphians Organized to Witness, Empower and Rebuild, the Black Political Empowerment Project and Make the Road Pennsylvania have offered to put effort into fixing the ballots without dates and finding those voters (Associated Press). This moot subject has even the Supreme Court baffled with a 3-3 justice decision about counting the votes without date or wrong dates. There has been an official explanation to follow the new ruling that states that incorrectly dated ballots are when the dates are outside the range for mail-in ballots and range for absentee ballots. There is certainty in more litigations because of the Supreme Court’s uncertainty.
There are so many uncertainties when looking at the suit at hand. A date cannot determine the legitimacy of a voter but if the date is deemed to be an official step and an important component in a ballot then the story changes. But if this was officially the case, then this requirement should have been announced prior to the first date range for absentee ballots which would be before August 30th and as a courtesy, 2 weeks prior to that date. It seems that mail in and absentees voting rules and provision are meant to encourage citizens to vote in person instead of dealing with tons of important revisions to ensure one’s vote is not rejected on technicalities. It is both the state’s responsibility to ensure voters are aware of requirements and it is the voter’s responsibility to ensure they know what needs to be completed for their ballots.

Source:

https://www.usnews.com/news/best-states/pennsylvania/articles/2022-11-05/suit-seeks-to-have-mail-in-votes-lacking-dates-counted

Jocelyn Duallo is a double major in Mathematical Finance and IT Management, Seton Hall University Stillman School of Business, Class of 2024.

You may have read in the news recently the Supreme Court may end the 49 year ruling of Roe v. Wade, as this accouncement was made prematurely by an unprecedented leak.  Many legal scholars called for its reversal as it was considered to be bad law. The late Ruth Bader Ginsberg concluded the same, although she was pro-abortion. 

Certainly, the egregious ethical violation committed by the clerk or whoever leaked the draft opinion is a grave concern.  The justices make it clear to their new staff that unless they want a quick end to their legal careers, don’t even think about violating confidences as to what goes on in chambers.  In general, federal and state law clerks are on notice that no documents can be taken home, even to work on them, and they cannot speak to anyone about what goes on in chambers.  

The motivation behind the leaker appears obvious; but it’s hard to believe that as intelligent these clerks are, they would open themselves to so many problems. Perhaps they did not think about the probability of criminal charges in addition to the ethics violations. Even though a draft opinion may not be a classified document, section 18 U.S.C. § 641 makes it a crime to steal, sell, or convey “any record . . . or thing of value of the United States or of any department or agency thereof.”  The terms are interpreted broadly. 

Certainly, if there’s an investigation, the person who is questioned needs to be careful of running afoul of Section 1001, lying to investigators, which has no Fifth Amendment protection.  Moreover, Attorney General Barr made a comment in an interview that the person who leaked the document could be obstructing the administration of justice.  A grand jury would have to be convened. 

The Congress may not have the votes to codify Roe in a statute, and if they did, they would try under the Commerce Clause. As we know from our discussions, commerce at the founding meant trade, but now due to expansion of that meaning, the Tenth Amendment has eroded to a point where the government can tell a farmer what to grow on his or her farm.  

Even if the Court does not take the step in this case to follow the science and affirm or disaffirm when human life begins, a future challenge to a codified Roe may certainly bring that issue to the fore.  If the embryo or fetus is ruled to be a person, the law could not be upheld even under the Commerce Clause, beacuse all protected constitional rights would be vested in the embryo or fetus. 

Right now, it looks like if this passes, it’s only a state issue.