Journal of Business & Intellectual Property Law

By: Juliana S. Inman *| Staff Writer

On Thursday, February 8, 2018, Qualcomm Technologies, Inc., based in San Diego, California announced that its Board of Directors (“Board”) had unanimously rejected a 121 billion dollar buyout offer from Broadcom Limited. Broadcom’s 121 billion dollar offer was actually a revised offer, which increased the price per share from 70 dollars to 82 dollars. However, this increase was not enough to sway Qualcomm’s Board to accept the offer. The Board decided that Broadcom’s offer “materially undervalue[d]” Qualcomm and “fell short of the firm regulatory commitment the deal would demand, given the significant downside risk of a failed transaction.” Although Qualcomm adamantly rejected this offer, Broadcom remains committed to closing the deal and acquiring Qualcomm, as this acquisition of Qualcomm “would be the technology industry’s biggest-ever takeover, creating a tech giant whose products would be used in nearly all of the world’s smartphones.”

So, what exactly is this thing we call a “buyout”? As the name suggests, one company/corporation “buys out” or purchases some percentage of another company/corporation. When this type of purchase takes place, the acquired, or target company (i.e., the company being purchased) experiences a change of ownership and control. Often, the term “buyout” is used as a very general term to describe what is actually a merger, acquisition, or takeover. For example, in causal day-to-day conversation “buyout” may be used to describe what is actually a “merger”. Legally speaking, a merger occurs when two companies combine to form a single company. Mergers typically occur between “two business that are about the same size and which recognize advantages [that] the other offers in terms of increasing sales, efficiencies, and capabilities.” Furthermore, mergers are often a result of friendly negotiations and mutual agreement between the two companies, and sometimes the two companies become equal partners or stockholders in the “new” company.

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By: Christopher Lewis *| Staff Writer

The business world is predominantly focused on profitability and finding new ways to turn a profit; Uber and Waymo share in this focus. In their quest to build a self-driving car, their respective trade secrets are of the utmost importance as, in most contexts, trade secrets provide a powerful tool that when used properly can exponentially grow the profitability of a business. Trade secrets are often hard to quantify, however, particularly when the accused party did not show a bad faith intent to take the information and use it to their advantage. To help decipher this area of the law, there are many different definitions that have been promulgated by various Restatements. One of the most predominant definitions comes from the Uniform Trade Secrets Act, which states that a trade secret exists when two factors are met: the material derives independent economic value from not being readily ascertainable and the material is under reasonable efforts to keep it secret. This gives the general framework that courts will use in examining these trade secret issues.

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By: Juliana S. Inman *| Staff Writer

On January 26, 2018, in the U.S. District Court in Manhattan, the United State Securities and Exchange Commission (SEC) filed an insider trading lawsuit against “unknown traders” who allegedly engaged in “highly suspicious trading” ahead of an announcement about Sanofi’s acquisition of Bioverativ Inc. According to the SEC, the purchase and sale of options on Bioverativ stock began through a foreign brokerage firm, Credit Suisse (Switzerland) Ltd., and were executed through Credit Suisse Securities (USA) LLC. These sales and purchases generated a profit of about 4.9 million dollars. Aside from the profits and potential benefits to the market as a whole, the SEC is seeking “an order to freeze the assets of the traders, require the identification of defendants, and the repatriation of assets.”

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By: Andrew Homer *| Staff Writer

One out of four middle-aged men over 30 years of age suffer from low testosterone levels (“Low T”). The number of middle-aged men who are prescribed hormone treatment to increase testosterone levels have ballooned since 2001 and began to deflate after 2013.

This rise in Low T treatment might be due to the marketing strategies of the manufacturers of these hormone treatments. Or at least, that is one of the arguments made by the plaintiff in a case recently decided in Notle v. AbbVie, Inc., et al.

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By: Christopher Lewis *| Staff Writer

The arrival of cheap music streaming services like Spotify has created a growing discontent between the music industry and those wishing to stream the music; however, this started long before Spotify became the predominant streaming service. Napster changed how people around the world accessed music on the internet, consequently, the music industry had to derive a new way to profit from these services. Instead of buying physical CDs, people were listening to music on the internet, and the music industry was missing out on a valuable source of income. While Napster was not technically a streaming service, it did help propel the music industry into this new age as people began to realize the immense potential that the internet contained in the music industry. However, the problem has now gone beyond artists simply trying to receive a wage for their work as artists now are tasked with obtaining a fair wage. The music industry has only slowly begun to realize the immense power that they hold within these discussions, as can be seen through their petitions to then President-elect Trump where they asked for tougher intellectual property laws in the music industry.

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By: Whitney Hosey *| Staff Writer

American Express is partnering with Ripple, a fintech startup, to introduce the option of instant blockchain secured payments between U.S. based businesses and U.K. businesses who bank with Santander UK.

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By: Jamie Burchette *| Staff Writer

Computers and technology are continually advancing. To match this advance, the programming techniques utilized by programmers have had to evolve to keep up. Sometimes these changes have been small and sometimes they have been large. Recently, a new project management software, Manuscript, has been released, which hopes to once again change software development by squashing bugs that may otherwise be ignored.

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By: Greg Volk *| Staff Writer

When Hurricane Maria hit Puerto Rico last year, it caused billions of dollars of destruction, but among the costly collateral damage is a highly controversial repair contract that has been called bad for Puerto Rico. No fewer than five governmental bodies, including the FBI, launched inquiries into the $300 million agreement between the Puerto Rico Electrical Power Authority (PREPA) and Whitefish Energy, an inexperienced Montana-based startup with two full-time employees, to restore the island’s devastated power grid. The whole ordeal could serve as a case study in how not to negotiate a contract. (Hint: Ignore advice from lawyers and accept all terms).

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By: Whitney Hosey *| Staff Writer

Before the final GOP tax bill was completed, many in the real estate industry were concerned over the fate of Section 1031 of the U.S. Tax Code, otherwise known as the “Like-Kind Exchange.” A Section 1031 Exchange “is a real estate transaction involving the sale of one property with the tax on the capital gain deferred because of the qualified purchase of another like-kind property in exchange.” While normally all sales of real estate are taxable, Section 1031 creates an exception where the parties to the transaction are not taxed or are taxed minimally, at the time of the exchange.

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By: Greg Volk *| Staff Writer

With over one-fifth of young adults streaming hit shows like “Game of Thrones” using another person’s account, password sharing is certainly popular. But is it illegal? According to a decision from the Ninth Circuit Court of Appeals last year, it theoretically could be. There is little chance the FBI will come knocking on your door, however. If there is any crackdown on streaming, it is more likely to occur in the marketplace.

News headlines about password sharing have been confusing (compare “Yes, Sharing Your Netflix or HBO GO Passwords Is Actually A Federal Crime” with “Relax, you’re not going to jail for sharing your Netflix password”), so it is important to understand what is really at stake for consumers. The confusion arises from the Computer Fraud and Abuse Act (CFAA), a vague thirty-year-old federal statute that’s been called “the worst law in technology.” Aimed at hackers, the CFAA makes it illegal to “access[] a protected computer without authorization, or exceed[] authorized access.” But what constitutes “access” and when is it “without authorization”?

In the Ninth Circuit case, United States v. Nosal (“Nosal II“), the court held that the defendant violated the CFAA when he used a former colleague’s password to take client data from a recruiting company in order to start his own. The defendant argued that such a broad interpretation of the CFAA could criminalize acts like sharing a password among family members, to watch Netflix, for instance, or to check-in for a flight. A dissenting judge agreed. The majority said their interpretation would not apply to those situations. The U.S. Supreme Court declined to review the case, so we are unlikely to get greater clarity anytime soon.

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