Current Commentaries

2017

A Counterproductive Constraint: How the Volcker Rule Undermines its Purpose by Discouraging Hedging

Renée Dudek

The Volcker Rule was designed to prevent banks from engaging in proprietary trading, which is investing for their own direct gain as opposed to earning commissions by trading on behalf of clients. The purpose is to insulate banks from the risks of proprietary trading. In theory, proprietary trading is distinct from hedging, a practice that reduces risk. However, there is no clear distinction between proprietary trading and hedging in practice. Classification largely depends on how a bank packages a transaction. Thus, it is unlikely that regulators could enforce the ban on proprietary trading while leaving hedging unscathed. By deterring hedging, regulators undermine the purpose of the Volcker Rule: to reduce banks’ exposure to risk. Yet, if regulators under-enforce the ban to encourage hedging, they will essentially fail to deter any proprietary trading. Banks will be able to artfully package their trading activity into compliance, with the Volcker Rule operating like a tax to be collected by bank lawyers.

Andrew G. Malik

Corporate inversions, a method by which U.S.-based companies relocate to lower-tax countries, have recently been the subject of heated debate and media coverage. President Obama criticized corporate inversions as one of the “most insidious tax loopholes out there.” The President’s desire to crack down on corporate inversions was reflected by a new set of Treasury Department regulations that make inversions much less appealing for U.S. companies. The regulations had the desired effect; a merger between Pfizer Inc. and Allergan PLC valued at over $150 billion, which would have been the largest merger in history for the pharmaceutical industry, was called off days after the regulations were announced. Allergan’s CEO criticized the Treasury regulations as “un-American” and “capricious.”

Interrogatory Practice Under the Federal Rules of Civil Procedure: What is the Basis for the Speculative and Argumentative Objections?

Corey LaBrutto and Jason Kanterman

We have all seen them: the poorly drafted interrogatory question purporting to require the adverse party to disclose every bit of information in its possession, and the subsequent responses reciting a litany of pre-drafted objections before answering the question posed. Most of those objections stem directly from provisions in the Federal Rules of Civil Procedure (“FRCP”). Two common objections however—that the interrogatory propounded is either argumentative or calls for speculation—do not find explicit support in any specific Federal Rule. This article will explore the history and foundation of those two objections and make recommendations as to their usage.

Reviewing the Port Authority of New York & New Jersey’s Whistleblower Protection Plan: Added Protections for Whistleblowers?

Sean Fulton and Jason S. Kanterman

Whistleblower litigation has become increasingly more popular in recent years, but increased litigation has made it clear that whistleblower protection is not universally shared by all members of the American working-class; legislative bodies throughout the United States have molded laws that differ widely in scope, goal, and protection offered. This creates gaps in the protections, because states often disagree on the purpose and scope of these protections. Moreover, applying whistleblower protection to Compact Clause entities—also known as bi-state entities—such as the Port Authority of New York & New Jersey (the “Port Authority”), to which individual state laws do not apply, presents quite the problem, potentially leaving Port Authority employees without sufficient protection. However, that gap in protection may be narrowing with the enactment of the Port Authority Whistleblower Protection Plan.

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