City Sustainability Reporting: An Emerging & Desirable Legal Necessity

This article will begin with a brief history of sustainability reporting, including recent developments related to its adoption by cities. The author will then review two major trends that, considered together, indicate sustainability reporting should be viewed as an emerging legal necessity for municipalities in the United States. First, the exemption shielding cities from the disclosure requirements of securities laws has eroded. Second, sustainability disclosures now fit the definition of what must—as a matter of materiality, if not specific mandates—be reported to investors. This means that the cities that have collectively issued over $3.67 trillion in securities2 should all be disclosing sustainability data. The author concludes that this emerging legal requirement is in the interest of all stakeholders and is pragmatic public policy

A Bridle, a Prod and a Big Stick: An Evaluation of Class Actions, Shareholder Proposals and the Ultra Vires Doctrine as Methods for Controlling Corporate Behavior

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that result. A third means for influencing corporate behavior would not involve the same theoretical or structural limitations. The ultra vires doctrine historically allowed a shareholder to sue to prevent a company from engaging in an activity outside of the specific parameters of its corporate charter. While the doctrine was almost done away with during the 1900s inasmuch as companies are now free to alter their field of business as they wish, a narrow slice of this doctrine remains. Namely, corporate charters typically are required to limit a corporation to “lawful activities,” and forty-nine states have statutes empowering the state to enjoin or dissolve the corporation for illegal acts. Therefore, shareholders still have the power to sue a company to prevent the violation of laws. In the context of a company such as Wal-Mart, for example, a well-documented pattern of widespread illegal gender discrimination could therefore be grounds for a shareholder bringing an ultra vires lawsuit. Unlike a shareholder proposal, the available remedies could include a court order to cease the activity and to adopt a detailed monitoring, training and compliance plan. Unlike a class action, the high hurdles of certifying the plaintiffs as class representatives would not exist. Nor would there be the same mix of practical concerns that contribute to class action attorneys emphasizing monetary rewards over long-term, disciplined equitable relief that is geared to actually altering company practices in the future. The only limitation on using the ultra vires doctrine is that there must be evidence that a company is in violation of an actual law in a jurisdiction where it operates. In those contexts, ultra vires can effectively enable a form of shareholder enforcement suit to ensure compliance with the federal laws of the United States or the statutes of foreign nations or individual states’ laws

Cyber-Extortion: Duties and Liabilities Related to the Elephant in the Server Room

This is a comprehensive analysis of the legal frameworks related to cyber-extortion – the practice of demanding money in exchange for not carrying out threats to commit harm that would involve a victim\u27s information systems. The author hopes it will catalyze an urgently needed discussion of relevant public policy concerns. Cyber-extortion has, by all accounts, become a common, professionalized and profit-driven criminal pursuit targeting businesses. 17% of businesses in a recent survey indicated having received a cyber-extortion demand. An additional 13% of respondents were not sure if their business had received such a demand. Awareness of the risks of cybercrime has spread. Advancements have been made in the field of cyber-security. Furthermore, statutes, regulations and recent FTC settlements have begun to articulate a minimum standard of care that businesses should maintain with regard to the security of information systems. Yet not all businesses have taken readily available precautions. To complicate matters, cyber-extortions often involve a threat to commit a harm using hijacked networks of computers owned by other businesses. Thus, an analysis specifically dedicated to cyber-extortion is required because of the unique web of liabilities that may arise from a typical cyber-extortion scenario. This article first reviews the available means for prosecuting or recovering damages from a cyber-extortionist. The article then considers the duties and potential liabilities of businesses that are victims of cyber-extortion. For example, an extortionist may follow-through on a threat to disclose or sell private customer data, resulting in the targeted enterprise being liable to its customers. However, a victimized business could conceivably be able to recover damages against a business that failed to take adequate steps to secure its information systems, such that its systems became the tools of the crime. This article reviews current trends and possible theories for recovering damages in such a scenario. The article concludes with a discussion of the public policy implications of finding businesses liable for damages caused by their unsecured information systems

Through the Looking Glass: What a Comparison with the New Polish Legal Framework of Arbitration Reveals about the U.S. Legal Framework of Arbitration

In Poland, domestic and international arbitrations are regulated by the Civil Procedure Code. A completely new set of regulations concerning arbitration went into effect in October, 2005. A comparison of the Polish and American legal frameworks of arbitration reveals many similarities and a few key differences. The differences involve the powers of arbitrators to decide upon their own jurisdiction, the arbitrability of employment disputes and the consequences of failure to consider applicable national law. Comparing how similar cases would be resolved under the new Polish standards and U.S. standards raises the question of how U.S. standards evolved and whether they are truly the most desirable and practical. Ultimately, the author concludes that Congress should ammend the Federal Arbitration Act to eliminate certain troublesome ambiguities

Through the Looking Glass: What a Comparison with the New Polish Legal Framework of Arbitration Reveals About the U.S. Legal Framework of Arbitration

Domestic and international arbitration in Poland is regulated by the Civil Procedure Code. In October of 2005, a new set of regulations went into effect that completely altered the Polish legal framework for arbitration. A comparison of this framework with that of the United States reveals several similarities and a few key differences. These differences involve the power of arbitrators to decide upon their own jurisdiction, the arbitrability of employment disputes and the consequences of an arbitrator\u27s failure to consider applicable national law. A comparison of how similar cases would be resolved under new Polish standards versus U.S. standards raises the question of how U.S. standards evolved and whether they are truly the most desirable or practical. Ultimately, as a result of this comparison, the author concludes that Congress should amend the Federal Arbitration Act to eliminate certain troublesome ambiguities. Reprinted by permission of the publisher

Employee satisfaction and environmental reputation

Companies around the world are investing in both reducing their negative environmental impacts and in communication efforts to improve their reputation for being green. Scholars, managers, and others have been trying to determine the effects of such investments