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Part Two: Using Corporate Tax Policy to Stop Corporate Inversions

By: John Sanders* | Staff Writer

New York City

New York City

Politicians, business leaders, and legal professionals have spent a great deal of time this year talking about corporate inversions.  As stated in a previous post, an inversion is a business transaction, perhaps a merger or acquisition, between a U.S. corporation and a foreign corporation with the objective of establishing the headquartering the new combined corporation in the foreign nation to take advantage of a better corporate tax rate.

Opposition to corporate inversions has been widespread and forceful in recent months.  However, it hit a fever pitch when American corporate icon Burger King announced plans to merge with Canada’s Tim Horton’s in order to take advantage of Canada’s lower tax rates.  Politicians, business leaders, and legal professionals were suddenly able to command the newspaper headlines and the lead segments of cable news shows if they had a proposal for how to stop inversions.

The interested parties began rallying support around three very different proposals.  The three proposals, which are not necessarily mutually exclusive, are changing the U.S. corporate tax code, using the bully pulpit to pressure corporations into staying put, and using existing provisions in the tax code to punish and deter inversions.

In a previous post, I described the proposals that Republicans and Democrats have put forward to amend and overhaul the tax code.  In the short time that has passed between post, there have been development on that front as well as others.  In this post, however, I will outline the competing proposal to use existing provisions in the tax code to punish and deter inversions. Continue reading »

JBIPL Board Spotlight: Editor-in-Chief and Managing Editor

Compiled By: Samantha Berner | Staff Writer 

Andrew Powell, Editor-in-Chief

What are the pertinent qualifications? Excellent time management and organizational skills.  Respect for deadlines and the ability to coordinate multiple moving parts and individuals through changing scenarios.  Strong editing skills and familiarity with the Bluebook and legal writing. 

Why did you apply for this position? I chose to apply because I wished to take a greater role in the Journal, practice my management skills, and help set the strategic direction for the Journal.  In my time in the MBA program, I have directed my studies toward strategic planning and change management.  The Journal has grown in the past few years, and when I applied to the position, the Journal was in the process of further evolving and experimenting with new ideas.  I saw it as a perfect opportunity to help guide the Journal through current issues, explore our strengths and growth opportunities, and set a firm direction for us to continue our mission of publishing top-notch legal research. Continue reading »

Self-Defense: Expediting the Patenting Process to Meet Emergency Demand

By: Austin J. Griffin* | Staff Writer 

“Radam’s Microbe Killer” Patent Medicine Advertisement

“Radam’s Microbe Killer” Patent Medicine Advertisement

The modern world faces many varied threats that require quick action.  Not the least of these are diseases like Ebola.  However, despite its media coverage and known mortality rates, many of the largest medical R&D groups have failed to act on Ebola until now.  A recent article in USA Today stated that although the threat of Ebola has been known since 1976, the monetary gain from the development of a cure has been so little that major drugmakers have ignored it.  Now that the threat is growing, several new treatments, from antiviral drugs to blood transfusion therapies, are being tested and readied for market.  However, they are not ready yet.

Why are these treatments not available?  One reason may be the lack of economic protection of the drugmaker’s final product through a patent.  The United States patent system, although useful in its protections of intellectual property, is notoriously slow.  In the face of anything other than a “sure deal”, a pharmaceutical company may be tentative to produce and subsequently patent an otherwise unneeded treatment.

So, how can a company expedite its protection so that new treatments for new illnesses can become economically available?  This article will use a broad hypothetical to follow a few options for such a process and find whether such a patent process may actually be effective in helping secure a company’s specific treatment. Continue reading »

Facebug: The Orwellian Expansion of Mobile Apps and the Law’s Protection

By: Austin J. Griffin* | Staff Writer

Google Image

Google Image

 

We know that no one ever seizes power with the intention of relinquishing it.

George Orwell,1984

The above quote, taken from George Orwell’s novel 1984, seems to speak to the recent rise in privacy-affecting mobile apps and the companies behind them.  The question remains, though, is the average user protected by the law?

The Facebug

In the past year, the Internet giant Facebook released a new feature for its mobile app.  According to Yahoo! Finance, this feature allows Facebook to turn on your device’s microphone on its own, so that the app can listen to your surroundings.  Ideally, this app feature was meant to create automatic Facebook updates based on what your microphone picks up, such as Watching Once Upon a Time or Listening to Elvis Presley.  In light of its spying abilities, some have referred to the app as “breathtakingly creepy.

Facebook has released a statement clarifying that the privacy settings on your device decide its access, but the “creepy” factor has not faded for many.  This app and others like it are starting raise important questions.  Is this sort of intrusion widespread?  How might the law protect the average consumer?  This short post will attempt to provide an overview of these questions.  Continue reading »

Are you vaccinated against an unhealthy workplace?

By: Jaime C. Garcia* | Staff Writer

Enlargement of the tiny Ebola virions

Enlargement of the tiny Ebola virions

The United States is far removed from the Ebola epidemic ravaging West Africa.  At least, it was.  When Dr. Kent Brantly and Nancy Writebol, two Americans working in Liberia to help treat Ebola patients, were brought to Emory Hospital in Atlanta for treatment, some feared this move could bring the epidemic to American shores.  Despite these fears, it is unlikely an  Ebola outbreak ever was, or will be a large threat to the United States.  However, that does not mean Americans are safe from a viral outbreak.  More common viruses, such as the flu, may not receive as much attention as the Ebola outbreak, but they are far more likely to have a noticeable effect on the average person.  For example, the CDC estimates approximately 200,000 people are hospitalized with the flu each year.  While the public focused on the protections and precautions taken by healthcare workers who treated Ebola patients, few, if any, employees think about their rights, and the corresponding duties of their employers, to be protected from viruses they encounter in the workplace. Continue reading »

Baltimore Raven Ray Rice’s Domestic Violence Spurs New NFL Policy

By: John Hodnette* | Staff Writer 

Ray Rice, formally of the Baltimore Ravens

In March, then-current Baltimore Raven running back was indicted for aggravated assault against his now wife Janay Palmer.   A new video released shows the assault itself, which occurred in an elevator at the Revel Hotel and Casino in Atlantic City on February 15th and ended with Palmer being dragged, unconscious from the elevator.  The NFL’s initial response to Rice’s action was a two game suspension, but this resulted in massive outcries from the public on the inadequacy of this punishment.  Some of the most outspoken were women, who account for 45% of the league’s total fan base.  Commissioner Roger Goodell responded by creating a new domestic violence policy for the NFL, aided in part by Kim Gandy, the president of the National Network to End Domestic Violence.

Goodell sent a letter to each of the NFL owners with his new proposed policy, which is primarily based on stiffer penalties.  For the first domestic violence offense, the player would face a six-game suspension without pay, and for the second, a lifetime ban from the NFL.  This plan would apply to all personnel, including executives and owners.  Goodell writes in the letter, “I didn’t get it right. Simply put, we have to do better. And we will.”  A copy of the letter can be found here.

While initially unclear, the league has since attempted to help define some of the terms used in the policy.  For example an “offense” was said to not necessarily be limited to a conviction in a court of competent jurisdiction, but that each incident will be “judged on its own merits.”  Some criticize the new policy as mere puffery, as the Commissioner always had the power to suspend players for as long as he deemed reasonable. Continue reading »

Upcoming Publications: JBIPL’s Student Authors Discuss Their Work

By: Samantha Berner* | Staff Writer

One great aspect of the Journal of Business and Intellectual Property Law is the opportunity for law students to get published. Each semester, the Journal picks a select few submissions from within Wake Forest to be published and featured within each issue. The following three students were selected from the Spring 2014 submissions and tell us a little about their note or comment, their inspiration, and a little bit about themselves.

From Left to Right: Hannah Nicholes, Rebecca Winder, Chase Smith

From Left to Right: Hannah Nicholes, Rebecca Winder, and Chase Smith.

  Continue reading »

Using Corporate Tax Policy to Stop Corporate Inversions

By: John Sanders* | Staff Writer

Politicians, business leaders, and legal professionals have spent a great deal of time this year talking about corporate inversions.  Inversion is the term for a business transaction, perhaps a merger or acquisition, between a U.S. corporation and a foreign corporation with the objective of headquartering the new combined corporation in the foreign nation to take advantage of a better corporate tax rate.

Opposition to corporate inversions has been widespread and forceful due to its known and suspected consequences.  For example, corporate inversions are lowering tax receipts in a time of great national debt, can result in the loss of U.S. jobs, and may change the cultures of the former U.S. corporations in unpredictable ways.  These are consequences which neither political party welcomes.

Moreover, neither side likes the political fallout from classic American companies  joining the movement and grabbing headlines.  When Burger King announced plans to merge with Canadian restaurant chain Tim Hortons in late August, it turned the nation’s attention to corporate inversions like never before.  Embarrassed politicians on the left and right were united after the Burger King announcement is declaring that something must be done to stop corporate inversions.

Despite consensus around the desire to stop inversions, there isn’t an obvious and workable solution.  However, various parties are trying to rally support around three very different proposals.  The three proposals are: changing the U.S. corporate tax code to make U.S. headquarters more attractive, using the bully pulpit to pressure corporations into staying put, and using existing provisions in the tax code to punish and deter inversions.  This blog post will address the proposal for changing the U.S. corporate tax rate to make it more globally competitive.  Continue reading »

Tommy Thompson: Modern Treasure Hunters & Why We Shouldn’t Do Business With Them

By: John Hodnette* | Staff Writer 

Around 1983, Tommy Thompson, an oceanic engineer at Battelle Memorial Institute in Columbus, became obsessed with tracking down the SS Central America.  This ship carrying up to 21 tons of gold in bars and coins sunk about 160 miles off the coast of North Carolina during a hurricane in 1857.  The amount of gold lost, historians say, contributed to the Panic of 1857, which led to a brief but severe economic depression in the United States.  This was a treasure worth finding.

When Thompson approached investors during this time, promising fame and fortune, it would be have been reasonable to consider this treasure hunt too risky of an investment.  Thompson knew this, and so he promised huge returns to the investors who backed his search for the SS Central America.  His gambit worked—Thompson convinced 161 people to invest in his hunt, raising $12.7 million, and on Oct. 1st, 1988, he found the treasure.  Its estimated value was about $50 million. Continue reading »

Ed O’Bannon v. NCAA: The First Domino to Fall?

By: Kyle Staggs*

Photo Credit: AP Photo/ESPN | NCAA President Mark Emmert

Photo Credit: AP Photo/ESPN | NCAA President Mark Emmert

Each spring, college basketball fans everywhere enjoy watching March Madness, the end-of-the-season tournament. In most ways, Ed O’Bannon is just like every other die-hard basketball fan, even though he is a former All-American UCLA basketball player and former NBA player. Unlike most basketball fans, however, during the 2009 tournament Mr. O’Bannon was shocked to see his likeness portrayed in a National Collegiate Athletic Association (NCAA) program. The NCAA profited from portraying O’Bannon without offering him compensation or even the opportunity to offer his consent.

Five years and over $30 million in legal fees later, this case is waiting on a ruling by U.S. District Judge Claudia Wilken to end a 108-prohibition year ban on student-athletes to license their names and likeness. Earlier in the case, O’Bannon and the other plaintiffs dropped their individual claims against the NCAA for $3.2 billion in personal damages to obtain a bench trial and seek an injunction preventing the NCAA from “profiting from the use of former college player likenesses in various forms of media and marketing.”

The Ed O’Bannon v. NCAA case is the closest student athletes have come to gaining the ability to market themselves. If O’Bannon wins, the NCAA as we know it would cease to exist.  A win for O’Bannon would create the precedent that student athletes should have the ability to market themselves instead of the NCAA and its members deciding for the players. This is likely to slowly expand to all NCAA sports, thus destroying the NCAA as we know it today: like a line of dominos falling over one after another, after the first sport is forced to change its rules, the rest will follow suit.  Continue reading »