Volume 12, Issue 2 (Spring 2015)
SLAPP DOWN: THE USE (AND ABUSE) OF ANTI-SLAPP MOTIONS TO STRIKE
Nina Golden
An older man retires (or is pushed out of the job, depending on whom you ask) after years of forecasting the weather on a major TV network. A man over forty with broadcast experience, as well as degrees in Geosciences and Broadcast Meteorology, applies for the position. The network gives the job to the young woman (with no such degrees) who had been the weather reporter at its sister station, thus creating a vacancy at that second station. The man applies for the position at the sister station, which the network gives to another young, attractive woman. The man sues on the bases of age and sex discrimination. The network counters by filing an anti- SLAPP motion, claiming that the man’s case — an employment discrimination case — constitutes a Strategic Lawsuit Against Public Participation, or SLAPP suit. In other words, a multi- billion dollar corporation files an anti-SLAPP motion to prevent one individual’s discrimination case from allegedly interfering with its (the corporation’s) free speech rights. Recent U.S. Supreme Court decisions have found in favor of expanding corporations’ rights, a trend seemingly followed by lower courts’ rulings on anti-SLAPP motions to strike. Based on its legislative history, the original intent of the anti-SLAPP motion was to encourage public participation. The anti-SLAPP motion to dismiss was designed to allow people to speak out against wrongdoings without being afraid that the defendant would engage in expensive legal maneuvers and machinations, solely for the purpose of wearing down (and possibly bankrupting) the plaintiff. How is it that a giant corporation could use such a tool against one individual? View More
Alexandra P. Everhart Sickler
The United States Supreme Court recently entertained an issue dividing the federal circuit courts of appeal over whether the federal Truth in Lending Act (TILA) requires a consumer borrower to file a lawsuit in order to exercise her statutory right to rescind, or cancel, certain types of mortgage loans where the lender fails to disclose information mandated by the statute. The Supreme Court ruled against the federal circuits’ majority- held view, holding that the statute does not require the filing of a lawsuit. Before the high court’s ruling, many commented on the appropriate interpretation of the statute and its implementing regulation, but there is a gap in the academic literature addressing the circuit divide. This article goes beyond interpretation of the relevant statute and regulation to explore and consider unarticulated explanations for the majority-held view. That view holds that TILA implicitly requires a consumer borrower to file a lawsuit to exercise her right to rescind even though the statute expressly provides that written notice is sufficient. Five circuits imposed this requirement even though Congress did not, explaining that they are constrained by Supreme Court precedent — precedent that the Supreme Court conclusively declared inapposite in its brief decision resolving the circuit split. This article posits that some evolving trend, beyond stare decisis, underlies the majority circuits’ rulings. Among the possibilities the article explores are: (1) the federal judiciary’s interest in regulating consumer litigation behavior; (2) a paradigm shift in agency deference doctrine, including the reconsideration of Seminole Rock/Auer deference; and (3) disagreement with Congress’s liberalization of common law rescission by statute. View More
CARRIED INTEREST: “THAT IS PURE POPPYCOCK!”
Daniel Feldman
Income classification with respect to private investment funds has been subject to heavy scrutiny over the past few years, as critics have attacked the management structures and compensation practices of fund managers. At the foundation of the debate lies the disparate characterization of income as either “ordinary income” or “capital gains income,” and the preferential tax rates afforded to capital gains income. In the context of private investment funds, fund managers are generally compensated with a “two and twenty” pay structure. The “two” refers to a small percentage of fund managers’ compensation, which is treated as a management fee and taxed as ordinary income. The major point of contention rests with the “twenty” portion of the pay structure, where fund managers are compensated with a 20% profits interest. It is this profits interest that has been given the term-of-art colloquially known as “carried interest.” Although proponents of carried interest have not gone so far as to label carried interest as a “tax shelter,” reformists point to the inequities of the status quo as a basis for legislative action. View More
Mike Papandrea
“A special circle of bankruptcy hell reserved for dads who avoid child support and tax evaders”— morbid as they may be, these words paint an accurate image of student loan debt and its respective bankruptcy laws in the United States today. Student loan debt shares a common evil with overdue taxes and child support obligations in that while most debts are treated relatively equally in bankruptcy, the laws governing these particular debts make them virtually impossible to discharge. With student loans constituting the largest form of consumer debt — clearing $1 trillion nationally — the inability to repay or discharge these loans creates an enormous burden for higher education graduates. View More