BLT: April 2019

 

Featured Articles

Business & Corporate

Creditor’s “Unreasonable” but “Good Faith” Belief as a Defense to an Alleged Discharge Violation

A bankruptcy court may use the contempt power to protect its jurisdiction and address violations of a discharge injunction. Is a creditor’s good-faith belief that the discharge injunction does not apply to its action relating to a discharged debt a valid defense? The U.S. Supreme Court will soon decide, resolving a split among the circuit courts in an upcoming case that will prove an important benchmark of accountability for creditors and debtors alike in the area of discharged debts.

Business & Corporate

Cannabis Deal Traffic Flows in Both Directions Across the Border: Considerations for U.S. Law Firms

With the spread of legalization of cannabis (in varying degrees) across U.S. states and full recreational legalization in Canada combined with rapid increases in investments from major U.S. corporations, there is a challenge for U.S. law firms to balance advising in an emerging and lucrative international industry, and keeping their hands out of an industry that is still federally banned in the U.S.

Business & Corporate

Must the Government Register Obscene Trademarks?

The U.S. Supreme Court will soon take up the issue of whether the “scandalous clause” in section 2(a) of the U.S. Trademark Act passes constitutional muster under the First Amendment. A previous Supreme Court decision struck down section 2(a)’s “disparagement clause” because it amounted to discrimination based on viewpoint. The “scandalous clause” survives First Amendment scrutiny, however, because the USPTO practice in exercising the provision is content-based and viewpoint-neutral.

Banking

Special Purpose National Banks: The New Frontier of Banking

Numerous fintech companies are considering becoming a special purpose national bank (SPNB). Prior to launching into the SPNB application process, any fintech company should be cognizant of some key points of the application, process and consequences. On July 31, 2018, the Office of the Comptroller of the Currency (OCC) released its Supplement to the Comptroller’s Licensing Manual (the Supplement), which describes the key factors the OCC will consider in evaluating charter applications to become a SPNB. Although becoming a SPNB is indeed an extraordinary undertaking, for many it may be worth the effort, and there are law firms that can assist every step of the way.

Consumers

The Rise of Risk Management in Financial Institutions and a Potential Unintended Consequence – The Diminution of the Legal Function

In the years since the global financial crisis ended, the financial community has responded to the identified causes of the financial crisis, adopting lessons learned and significantly reforming the financial system. Today’s financial system has considerably higher capital and liquidity, and there has been a revolution in the discipline of risk management. These changes in risk management have transformed the post-Dodd-Frank financial institution, and the financial industry. It is also important to contemplate whether the change has brought with it other, unintended consequences. Has the rise of the risk management function had one very specific unintended consequence – the diminution of the legal function? There is a potential inverse relationship here – it is not only that the legal function has declined in importance, but it is also that the decline has come as the direct result of the rise in risk.

Business & Corporate

Examining Technology Bias: Do Algorithms Introduce Ethical & Legal Challenges?

There is a new problem presented by the burgeoning use of advanced technology both in the practice of law and in the products and services produced by clients of legal service providers: how do we examine advanced technology for compliance with legal rules? What standards do lawyers have to meet when using or advising on advanced technology? Incomplete inputs to AI tools can create biases that render the tool an inaccurate and ineffective tool for the client’s purposes. In turn, the lawyer’s use of an inaccurate and ineffective tool could cause the lawyer to fail to fulfill his or her duty of competence.

Business & Corporate

The Parties Are Different, but the Song Remains the Same: Yet Another Attack on Real-Time Bidding

In behavioral advertising critics’ singular focus to amend software services to prevent any personal data from being transmitted at all, these parties advocate expanding the definition of controller so broadly as to render almost all companies in every industry as controllers. If they succeed, although they may accomplish their own goals, they may also stop (or diminish) the willingness of technology providers and standards bodies to engage in the European market.

Consumers

Tote That Search, Lift That Mail: A “Green” New Deal for Data?

What are “data”? To pose the question in economic terms, are data “capital” or “labor”? The “data as capital” (DaC) school considers data “the natural exhaust from consumption,” free for any capitalist with the means to exploit and profit from it. On the other hand, the “data as labor” (DaL) crowd sees data as the possessions of their creators, who should properly be compensated for producing them. The question of valuing data will be crucial in the face of two of the defining political issues of our day: rising income inequality and the oncoming (autonomous) train of artificial intelligence. In fact, to some academics, the very way we find purpose in our lives may well depend on the manner in which we as a society choose to give value to data.

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