RELAXING THE BAN: IT’S TIME TO ALLOW GENERAL SOLICITATION AND ADVERTISING IN EXEMPT OFFERINGS
William K. Sjostrom, Jr
Small businesses play a pivotal role in the United States economy. “They are the foundation of the Nation’s economic growth: virtually all of the new jobs, 53 percent of employment, 51 percent of private sector output, and a disproportionate share of innovations come from small firms.” A large portion of these numbers, however, is driven by a small subset of small businesses—specifically, entrepreneurial companies that start small and grow fast. These so-called emerging companies “represent the potential for innovation, job creation and high returns for investors claimed by the small business community.” Some of today’s most successful, established companies were small, emerging companies in the not-so-distant past. For example, in 1975 Microsoft Corporation was nothing more than a vision shared by two young men to put a personal computer in every home and office. Likewise, in 1971 Federal Express Corporation was nothing more than an idea set forth in a college economics term paper that received a “C” grade.6 In 2003 Microsoft and Federal Express employed 55,0007 and 134,0008 people and, in 2004, had market capitalizations of $306.85 billion9 and $24.29 billion,10 respectively. For fiscal year 2003, Microsoft’s net income was $13 billion on revenues of $32 billion,11 and Federal Express’s operating income was $786 million on revenues of $16 billion.12 For fiscal year 2003, Microsoft and Federal Express paid $4.7 billion13 and $258 million,14 respectively, in federal income taxes.
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POLITICS NOT AS USUAL: INHERENTLY DESTRUCTIVE CONDUCT, INSTITUTIONAL COLLEGIALITY, AND THE NATIONAL LABOR RELATIONS BOARD
Paul M. Secunda
The National Labor Relations Board (NLRB or “Board”) is a collegial administrative body whose adjudications are not significantly tainted by the blight of political bias. Nonetheless, most commentators assume that the Board engages in politically motivated decisionmaking because of the natural affinity between conservative Republican Board Members and employers on the one hand, and liberal Democratic Board Members and unions and individual employees on the other.
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AN ARGUMENT FOR IMPOSING DISCLOSURE REQUIREMENTS ON PUBLIC COMPANIES
Michael D. Guttentag
Disclosure requirements appear to offer a simple way to regulate complex markets. When disclosure is required, the parties to a transaction are more fully informed, and so, presumably, made better off without the need for a regulator to evaluate the merits of particular transactions. But the appeal of disclosure requirements is illusory. The costs and benefits of imposing disclosure requirements are complex, highly dependent on the context in which they are imposed, and generally difficult to measure. The ramifications of requiring disclosure usually range well beyond what is intended.
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SEEING OVER THE BRICK WALL: LIMITING THE ILLINOIS BRICK INDIRECT PURCHASER RULE AND LOOKING AT ANTITRUST STANDING IN CAMPOS V. TICKETMASTER CORP. THROUGH A NEW LENS
Seth E. Miller
In 1998, the Eighth Circuit Court of Appeals handed down its decision in Campos v. Ticketmaster Corp., which joined a group of Supreme Court and lower federal court cases which have, one by one, twisted and turned the Supreme Court’s holding in Illinois Brick Co. v. Illinois into an incomprehensible mess. The Eighth Circuit in Campos continued to muddy the waters of antitrust standing by reformulating Illinois Brick’s “indirect purchaser doctrine” to effectively create an insurmountable barrier to those plaintiffs injured by Ticketmaster’s antitrust violations who wish to find their redress through compensation under section 4 of the Clayton Act. These cases have helped not only to deny certain injured plaintiffs standing to sue but also to confuse the lower courts about how to apply this indirect purchaser analysis. It is also difficult for potential defendants to determine whether their actions violate Illinois Brick.
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PRICE SQUEEZE IN A DEREGULATED ELECTRIC POWER INDUSTRY
Greg Goelzhauser
The electric power industry is in the midst of spectacular change. Deregulatory efforts have moved the industry into a state of transition from a highly regulated era to one marked by increased competition. This transition era has brought numerous procompetitive changes to the industry, including, for example, increased competition in wholesale and retail markets and a move away from cost based ratemaking to market-based standards. These changes are profoundly important for their impact on the application of antitrust principles in a deregulated electric power industry. This Comment examines the changes deregulation has brought on the applicability of one antitrust claim important to the electric power industry—the price squeeze.
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CURING CAUSATION: JUSTIFYING A “MOTIVATING-FACTOR” STANDARD UNDER THE ADA
Seam Park
On July 26, 1990, Congress passed the Americans with Disabilities Act (ADA) to address the various forms of discrimination against approximately forty-three million disabled Americans in critical areas such as employment. Prior to the ADA’s enactment, individuals who experienced discrimination on the basis of their disability often did not have legal recourse to redress such discrimination.
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