Articles

United We Stand: Antitrust Aspects of Collaboration Among Corporate Bondholders

67(2): 393 - 404 (February 2012)
Many observers over the years have commented on the various tactics employed by issuers of corporate debt seeking to restructure or repurchase their securities and the potentially coercive effects of these actions on bondholders. In response to issuer actions of this sort, large bondholders of a particular security often band together in groups or committees to try and negotiate collectively with the issuer and obtain morefavorable terms. In some circumstances, these collaborations bring togetherfirms that may be considered competitors in some aspects of theirbusinesses and have on occasion been challenged as unlawful price-fixingagreements or group boycotts under Section 1 of the Sherman Act. Thisarticle reviews the opinions in those cases and discusses the antitrust implicationsof collective action by bondholders or their representatives in dealings with a common issuer.

405 Resolving LLC Member Disputes in Connecticut, Massachusetts, Pennsylvania, Wisconsin, and the Other States that Enacted the Prototype LLC Act

67(2): 405 - 434 (February 2012)
Ten states have modeled their LLC statute on the Prototype LimitedLiability Company Act. The Prototype Act includes unique provisionsgoverning how LLC member disputes should be settled (intending toeliminate the need for derivative suits). This article explains the procedures,discusses interpretations of the statutory sections, and pays substantialattention to the problems that have arisen in states where courtshave applied these Prototype Act provisions. By analyzing the existingPrototype Act provisions, the article provides guidance to lawyers litigatingLLC member disputes, and recommends how states can improvetheir existing statutes by adopting provisions of the revised PrototypeLimited Liability Company Act.

The Rule of Reason Re-Examined

67(2): 435 - 470 (February 2012)
This article analyzes the application of the Rule of Reason as articulatedby Justice Brandeis in Chicago Board of Trade v. United Statesto alleged restraints of trade in violation of section 1 of the ShermanAct. It argues that the Brandeis formulation, which requires courts to consider a broad range of economic factors and then weigh precompetitivebenefits against anticompetitive effects, has proven unwieldyin the hands of trial judges. Because the Brandeis formulation provideslittle guidance as to how these factors should be weighed, courts havestruggled to develop clear, predictable, and consistent standards undersection 1. This article considers several alternatives to the Brandeis formulationand recommends that courts can revitalize the Rule of Reasonby using the highly structured approach of the D.C. Circuit in theThree Tenors case to develop antitrust rules that are clear, predictable,and administrable.

The False Choice Between Financial Transparency and Litigant Confidentiality

67(2): 471 - 472 (February 2012)