Vol. 76 No. 2 -- Spring 2021

For Whom Is the Corporation Managed in 2020? The Debate over Corporate Purpose

Edward B. Rock

A high-profile public debate is taking place over one of the oldest questions in corporate law, namely, “For whom is the corporation managed?” In addition to legal academics and lawyers, high-profile business leaders and business school professors...

Business & Corporate

Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy: A Reply to Professor Rock

Leo E. Strine, Jr.

This reply to For Whom Is the Corporation Managed in 2020? The Debate Over Corporate Purpose by Professor Edward Rock supports his depiction of the current state of corporate law in the United States. But by contrast to Professor Rock, I do not...

Business & Corporate

Contracting COVID: Private Order and Public Good (Standstills)

Jonathan C. Lipson and Norman M. Powell

COVID (2019) rendered many contracts in or near breach. If commercial actors in these circumstances marshaled their presumptive legal rights—whether to sue or to shelter in bankruptcy—the result could be catastrophic for the legal system and for...

Will Loyalty Shares Do Much for Corporate Short-Termism?

Mark J. Roe and Federico Cenzi Venezze

Stock-market short-termism—stemming from rapid trading and activists looking for quick cash—is, a widespread view has it, hurting the American economy. Because stock markets will not support corporate long-term planning, the thinking goes...

Adding Insult to Death

Thomas E. Rutledge

Death is the one eventuality for which all individuals must account. Even as limited liability companies (“LLCs”) are now the most commonly used form for new business organizations, most participants therein fail to appreciate that absent express...

Summary of Mendes Hershman Student Writing Contest Prize Essay: Lien This Way or That

Tara A. Mollhagen Shepherd

Each year, the Business Law Section sponsors the Mendes Hershman Student Writing Contest to encourage and reward law student writings on business law subjects of general and current interest.

Changes in the Model Business Corporation Act— Proposed Amendments to Sections 1.40, 1.41, 7.20 and 16.01 Relating to Electronic Notice

Corporate Laws Committee, ABA Business Law Section

The Corporate Laws Committee of the ABA Business Law Section (the “Committee”) develops and proposes changes in the Model Business Corporation Act (the “Model Act”). The Committee has approved, on second reading, proposed amendments to sections...

Corporate Compliance Survey

Paul E. McGreal, Corporate Compliance Committee, ABA Business Law Section

This is the thirteenth survey from the Corporate Compliance Committee. This survey summarizes selected legal developments regarding corporate compliance and ethics programs, which consist of an organization’s code of conduct, policies, and...

Consumers

Consumer Financial Services Survey

Consumer Financial Services Committee, ABA Business Law Section

The past year has been more notable for the effects of the COVID-19 pandemic on the consumer finance industry than for any purely legal developments in statutes, regulations, enforcement actions, or litigation.

Introduction to the 2021 Annual Survey of Consumer Financial Services Law

John L. Ropiequet, Anna-Katrina S. Christakis, and Christopher K. Odinet

The past year has been more notable for the effects of the COVID-19 pandemic on the consumer finance industry than for any purely legal developments in statutes, regulations, enforcement actions, or litigation.

Notarization and Property Recording Requirements in the Age of Social Distancing

Brett J. Natarelli, Madelaine A. Newcomb, and A. Paul Heeringa

Even before the world was forced to confront COVID-19 and social distancing requirements, many were interested in conducting real estate closings remotely over the internet to eliminate the need to gather human bodies around a closing table in...

Default Mortgage Servicing of Litigated Matters in the COVID-19 Era

Shanna M. Boughton, Patrick T. Voke, and Dennis Amore

The COVID-19 pandemic has directly impacted the default mortgage servicing industry and has broadly affected default litigation matters nationwide. As state and federal governments seek to mitigate the impact of the virus, new regulations have...

Mortgage Regulation Developments in the COVID- 19 Era

Christine M. Acree and Peter L. Cockrell

The Consumer Financial Protection Bureau (“CFPB”) has been active during the past year issuing rules and other guidance applicable to the mortgage industry. This survey highlights many of these regulatory developments. In particular, this survey...

Consumers

The Supreme Court’s Ruling in Seila Law LLC v. CFPB: The End of CFPB Constitutionality Litigation?

Jason W. McElroy and A.J. S. Dhaliwal

This past summer, as the Consumer Financial Protection Bureau (“CFPB”) celebrated its tenth birthday, the Supreme Court issued its long-awaited decision regarding the constitutionality of the CFPB’s structure.

Recent Developments in Valid-When-Made and True Lender Litigation

Ashley Simonsen, Andrew Soukup, David A. Stein, Matthew Q. Verdin, and Stefan Caris Love

National banks and federal savings associations have the power under section 85 of the National Bank Act (“NBA”) and section 4(g) of the Home Owners’ Loan Act (“HOLA”), respectively, to make loans at the rate of interest allowed by the laws of...

Consumers

The OCC’s Community Reinvestment Act Final Rule—A Work in Progress or Game Changer?

Scott A. Coleman and Lori J. Sommerfield

The Community Reinvestment Act of 1977 (“CRA”) was enacted to encourage depository institutions to help meet the credit needs of the communities in which they operate, including low- and moderate-income (“LMI”) neighborhoods, consistent with safe...

Consumers

Current Developments in Bank Deposits and Payment Systems

Ryan S. Stinneford and D. Patrick Yoest

This survey summarizes several recent developments affecting bank deposits and payment systems. These include payments-related consent orders and enforcement actions by the Consumer Financial Protection Bureau (“CFPB”) and the Federal Trade...

Arbitration Year in Review: Back to Basics (But with Some New Twists)

Alan S. Kaplinsky, Mark J. Levin, and Martin C. Bryce, Jr.

Although the past year did not feature “headliner” arbitration decisions such as AT&T Mobility, LLC v. Concepcion or Epic Systems Corp. v. Lewis, courts continued to issue important arbitration decisions focusing on both traditional and novel...

The California Consumer Privacy Act of 2018 Updated: More Protection in the Quest to Access and Protect Personal Information

Sanford P. Shatz and Paul J. Lysobey

After California hastily enacted the California Consumer Privacy Act of 2018, and the governor signed cleanup legislation in September 2018, Californians gained new privacy rights and protections.

Consumers

Fair Lending Developments: Disparate Impact Lives On

John L. Ropiequet and L. Jean Noonan

The fair lending cases filed by Miami against four major mortgage lenders, reported in several previous Annual Surveys, came to a sudden, anticlimactic end when the city voluntarily dismissed all of them in January 2020.

Consumers

Auto Finance Regulators Not Falling Asleep at the Wheel

Kevin M. McDonald and Kenneth J. Rojc

Federal and state regulators were definitely not asleep at the wheel in their recent regulation of automotive finance transactions, including direct loans, motor vehicle retail installment sale transactions, and consumer leases.

Fair Credit Reporting Act Litigation Developments on Standing

Joseph F. Yenouskas and Tierney E. Smith

This survey summarizes recent cases examining whether plaintiffs have Article III standing to maintain Fair Credit Reporting Act (“FCRA”) claims after the U.S. Supreme Court’s seminal decision in Spokeo, Inc. v. Robins.

Military Lending Act, Servicemembers Civil Relief Act, and State Military Law Updates

Robert Savoie and Sarah Edwards

The federal and state laws governing the special benefits and protections afforded to servicemembers have been amended in various ways over the past couple of years. In 2020, the U.S. Department of Defense (“DoD”) revoked a portion of a prior...

TCPA Update: Circuit Split on Automatic Dialer Definition Sets the Stage for Back-to-Back Supreme Court Rulings

Zachary D. Miller and Rachel R. Friedman

In the past year, the Telephone Consumer Protection Act (“TCPA”) caused a flurry of activity in the federal appellate courts, with several circuit courts of appeals taking positions on fundamental concepts underlying the statute’s ban on...

Tik Tok: The Compliance Clock Is Ticking for Small-Dollar Lenders in 2020

Justin B. Hosie, Hurshell K. Brown, Erica A.N. Kramer, K. Dailey Wilson, Andrea S. Cottrell, and Christopher J. Capurso

Small-dollar lenders waited through most of 2020 for the Consumer Financial Protection Bureau’s (“CFPB’s”) final rulemaking addressing payday, vehicle title, and certain high-cost installment loans.