Emory Law Journal

Volume 68Issue 2

A Snapshot of Dual-Class Share Structures in the Twenty-First Century: A Solution to Reconcile Shareholder Protections with Founder Autonomy

Zoe Condon | 68 Emory L.J. 335 (2018)

Dual-class share structures—either an autocratic restraint on shareholders or a protector of founder autonomy—present a long-standing, though hotly contested debate both within the United States and around the world. Recent global developments have pushed the debates to new extremes. This comes after several jurisdictions have lost key initial public offerings to other jurisdictions, resulting in a myriad of responses from stock exchanges, stock indices, and government bodies. As a result of the significant change in regulatory landscape, this Comment considers how the United States should respond. In turn, this Comment offers a framework to offset the extremes on both sides of the debate. The proposed solution balances minimal safeguards that protect shareholders from the most egregious failings of the dual-class structure while safeguarding founders’ vision for the future of their companies.

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Off-Key Regulation: Examining the SEC’s and the DOL’s Dissonant Regulation of Broker-Dealers

Richard J. Kubiak | 68 Emory L.J. 369 (2018)

In 2016, the DOL forecasted that retirement investors were at risk of losing upwards of $189 billion over the next ten years due to receiving conflicted investment advice from broker-dealers. Later that year, the DOL issued a final rule, known as the fiduciary rule, that aimed to prevent conflicted investment advice and consequent losses. But after nearly two years of an uncertain fate, the rule was vacated by the Fifth Circuit in March 2018. And while the SEC is currently finalizing a rule that could fill the void created by the DOL’s fiduciary rule being vacated, the details of that rule remain unknown. This Comment explores how the SEC should fill the void; namely, it argues that the SEC should impose a fiduciary standard on broker-dealers who provide personalized investment advice to investors.

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The FCC’s Preemption of State Limits on Municipal Broadband and the Clear Statement Rule

John T. Cobb | 68 Emory L.J. 407 (2018)

In 2015, the FCC preempted statutes in North Carolina and Tennessee that limited the powers of municipally owned internet service providers to expand their networks to nearby underserved communities. The FCC determined, pursuant to Section 706 of the Telecommunications Act of 1996, that these state limits on municipal broadband networks were anticompetitive barriers to infrastructure investment. The States appealed the FCC order, arguing that the FCC did not have the authority to interpose itself between the States and their political subdivisions. Relying on the Supreme Court’s earlier decision in Nixon v. Missouri Municipal League, the Sixth Circuit agreed with the States. This Comment argues that the Sixth Circuit should have applied a narrower reading of the clear statement rule, which would strike an appropriate balance between the FCC’s unmistakably clear authority to regulate the deployment of broadband technology against the legitimate sovereign interests of the affected states.

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