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61(2): 517 - 568 (February 2006)
This article updates an earlier article by Freeman that was published in the February 2002 issue of The Business Lawyer on the status of the United States Supreme Court’s rapidly evolving jurisprudence on constitutional constraints on punitive damage awards.
61(2): 569 - 588 (February 2006)
The high-visibility of Windstar cases have drawn attention to restitution as an alternative remedy for breach of contract, while reflecting the prevailing confusion at the intersection of contract and restitution principles. Current drafts of the ALI’s new Restatement Third, Restitution and Unjust Enrichment would resolve this confusion by taking a different approach to “restitution in a contractual context” from that taken by the Restatements of Contacts.
61(2): 589 - 606 (February 2006)
This article focuses on the vagaries of attorneys’ fees awards in arbitration proceedings and the decidedly hesitant review of such awards by the courts under the doctrine of manifest disregard of the law. The Authors conclude with a number of recommendations aimed at avoiding the issuance of unintended attorneys’ fees awards in arbitration proceedings.
61(2): 607 - 608 (February 2006)
Each year, the Section of Business Law sponsors the Mendes Hershman Student Writing Contest to encourage and reward law student writings on business law subjects of general and current interest. The winning essay for the 2004-2005 contest was submitted by David Ward. An abstract of Mr. Ward’s paper is contained within.
61(2): 609 - 609 (February 2006)
The Foreword explaining how the Task Force on Home Banking Services Agreement drafted their report.
61(2): 611 - 640 (February 2006)
This document is intended by the Task Force to provide insights into some of the issues related to providing financial services electronically, including those involving the bank-customer relationship. However, this document does not purport to be a platform for articulating the potentially differing interests or viewpoints of the bank and customer in the delivery of these services, and therefore this document should not be constructed as a model agreement or forum for analyzing the merits or value of these interests. Instead, this document aims to be a basic guide for the practitioner who advises banks offering home banking services, and as such, represents an attempt to outline the primary considerations in the delivery of these services from the perspective of the bank.
The Business Lawyer - February 2006, vol. 61, no 2; Home Banking Agreements: Don't Bank on Them
61(2): 653 - 658 (February 2006)
The Task Force, which drafted the report entitled “Home Banking Services Agreement” (“Report”) published in this issue, believes it appropriate to respond to certain claims and other statements made in the article entitled “Home Banking Agreements: Don’t Bank On Them.”
61(2): 659 - 678 (February 2006)
The Committee on Corporate Laws of the ABA Section of Business Law develops and from time to time proposes changes, the Model Business Corporation Act. The changes described in this Report relate to the extent to which a corporate action for which appraisal is available may also be challenged by a shareholder in a legal or equitable proceeding.
61(2): 679 - 696 (February 2006)
The TriBar Opinion Committee’s 1998 report, “TriBar 1998 Report” addressed opinions commonly included in a standard closing opinon relating to corporations. This report supplements the TriBar 1998 Report by addressing opinions on limited liability companies, specifically the opinions on status, power and action and, in a limited way, enforceability of operating agreements. Except as indicated, the terms used in this report have same meanings as in the TriBar 1998 Report.
The Business Lawyer - February 2006, vol. 61, no 2; Attorney Liability Under Section 707(b)(4) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
61(2): 721 - 744 (February 2006)
This Guide is intended to provide a framework for analyzing when and if a party is able to show “control” over electronic chattel paper (ECP) pursuant to UCC § 9-105.
The Business Lawyer - February 2006, vol. 61, no 2; Initial Report of the Joint Task Force on Deposit Account Control Agreements
61(2): 797 - 798 (February 2006)
This is the introduction to the survey that summarizes the significant legal developments Consumer Law and Protection since the Consumer Financial Services Committee’s last survey in 2005.
61(2): 799 - 808 (February 2006)
Things were busy for the TILA and Regulation Z in 2005. The U.S. Congress included several amendments to TILA in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. The Federal Reserve Board issued an Advance Notice of Proposed Rulemaking proposing the revise the open-end credit provisions of Regulation Z. The U.S. Supreme Court decided an important case concerning TILA’s statutory damages provisions for closed-end loans, and TILA cases covering many and varied topics continued to abound across the country.
61(2): 809 - 817 (February 2006)
Significant changes in the FRB requirements for reporting data on 2004 mortgage loans under the Home Mortgage Disclosure Act of 1975 have brought increased scrutiny to differences in mortgage loan pricing on the basis of race, ethnicity, and sex. For the first time, mortgage lenders are required to report the amount by which rates on home mortgage exceed rates on U.S. Treasury securities, and these data are being made publicly available. The unprecedented scope and level of detail of this information on home mortgage loan pricing are likely to impact fair lending regulatory enforcement, litigation, and mortgage lenders’ self-assessment practices.
The Business Lawyer - February 2006, vol. 61, no 2; Dealer Rate Participation Class Action Settlements: Impact on Automotive Financing
61(2): 829 - 842 (February 2006)
This article examines the text of the ECOA credit discrimination proscription, and these non-statutory references to the “effects test,” with a view toward discerning the meaning of the statutory text and the intent of the enacting Congress.
61(2): 843 - 854 (February 2006)
This article examines the use of starter interrupt devices in the context of laws currently in effect and concludes that, if the starter interrupt device is treated as a method of repossession for purposes of state law, though subject to limitations, every state permits the use of the devices in connection with credit collections.
61(2): 855 - 866 (February 2006)
This article summarizes newly enacted threshold based predatory lending laws, as well as changes to existing predatory lending laws and regulations.
61(2): 867 - 875 (February 2006)
This article discusses a variety of issues regarding credit card disclosures included the OCC’s activities to address credit card disclosure practices of the national bank credit card issuers, and describes why it is timely to rethink traditional approaches to developing consumer disclosures in order to achieve more consumer-useful and cost-effective disclosure rules for credit cards.
The Business Lawyer - February 2006, vol. 61, no 2; Survey of Consumer Financial Privacy Developments in 2005
61(2): 887 - 897 (February 2006)
This article summarizes recent major court decisions, consent decrees and other resolutions of regulatory enforcement actions and private litigation related to consumer privacy in the past year.
61(2): 899 - 909 (February 2006)
Your client’s business is down. Print ads don’t seem to have much impact in its markets. Its website doesn’t get enough traffic. Direct mail is too expensive. So it decides to pursue a telephone, fax, or e-mail campaign that goes directly into its customers’ home. These campaigns are focused, direct, personal, and not overly expensive. Unfortunately, they carry with them new and ever expanding compliance risks that your client will need to consider. This article will explore these risks and how they have expanded during 2005.
61(2): 911 - 921 (February 2006)
Congress and regulators, as well as state legislatures, have remained active in the electronic financial transactions arena. Of particular importance in the last year are legal developments affecting electronic transactions in the areas of stored value cards and data security. Stored value cards are one of the fastest growing products in the financial industry, and regulators and legislatures have struggled with the problem of how to protect consumers and the financial system without interfering with the development of new payment mechanisms and products. Data security has taken front and center recently has a result of several security breaches that raised questions about the effectiveness of current countermeasures and the wisdom of relying on unregulated merchants and processors to comply with industry standards in their data collection and security practices. Finally, growing concerns over “phishing” schemes and “account hijacking” are raising new questions about how to best address this risk.
61(2): 923 - 929 (February 2006)
This article covers the announcement by JAMS on class action waivers in arbitration agreements and the ensuing controversy following the announcement.
61(2): 931 - 940 (February 2006)
This article first highlights several recent decisions that have the potential to impact the scope and subject of FCRA class action litigation in the future, then explores the unique issues raised by the FCRA’s statutory damages scheme, the prominence that those damages issues have played in recent FCRA class certification decisions, and the implications of these decisions for future FCRA litigation.
61(2): 941 - 948 (February 2006)
This year’s survey of the federal FDCPA reviews cases dealing with perennial problems under the Act, including the validation of debts requirements, the definition of “debt,” and class action litigation, among others. The review is restricted to appellate decisions given space restrictions in the Survey and the sheer volume of the FDCPA district court cases.
61(2): 949 - 968 (February 2006)
On April 20, 2005, President Bush signed into law the 2005 Bankruptcy Reform Act. The new law constitutes the most substantial revision of bankruptcy law since the enactment of the Bankruptcy Code in 1978. The new law generally is effective as to cases filed on or after October 17, 2005. This article addresses selected major aspects of the bill that affect consumer financial services law; however, it is neither a complete listing of the changes nor an exhaustive analysis of those changes that were made.
61(2): 969 - 986 (February 2006)
With the consummation of the historic acquisition of the Citicorp by The Travelers in 1998, permitted by the GLB Act, many thought the long-awaited rewards of a marriage between banks had finally arrived. The benefits of this union had been highly touted, including higher fee income for banks and greater sales of insurance products due to more efficient distribution to a broader customer base, and lower costs due to the elimination redundant expenses. However, as with all rewards, there are risks.
61(2): 797 - 986 (February 2006)
Consumer Financial Services Survey Collection for February 2006
The Business Lawyer - February 2006, vol. 61, no 2; Annual Survey of Judicial Developments Pertaining to Mergers and Acquisitions