The Limits Of Gatekeeper Liability PDF Download
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Author | : Andrew F. Tuch |
Publisher | : |
Total Pages | : 23 |
Release | : 2017 |
Genre | : |
ISBN | : |
Download The Limits of Gatekeeper Liability Book in PDF, ePub and Kindle
Gatekeeper liability - the framework under which actors such as law firms, investment banks and accountants face liability for the wrongs committed by their corporate clients - is one of the most widely used strategies for controlling corporate wrongdoing. It nevertheless faces well-recognized flaws: gatekeepers often depend financially on the clients whose conduct they monitor; to carry out their gatekeeping function, gatekeepers rely on individuals - often their employees - whose interests diverge from their own; and major transactions typically involve multiple gatekeepers, each with specific areas of expertise and information, which produces both gaps and overlaps in the gatekeeping net.In this paper, I assess a recently proposed strategy intended to address the core challenges that afflict gatekeeper liability. Proposed by Professor Stavros Gadinis and Mr. Colby Mangels in "Collaborative Gatekeepers," 73 Wash. & Lee L. Rev. 797 (2016), the strategy would require gatekeepers to report their suspicions of wrongdoing by their clients to regulators - a duty that is analogous to rules that have proven effective in anti-money laundering regulation. I assess the proposal's likely effectiveness by, first, distinguishing it from conventional gatekeeping regimes. I argue in favor of the proposal but suggest that its success is likely to depend on the particular ways in which it interacts with conventional gatekeeper regimes - because the proposal would be overlaid on these existing regimes, rather than amending or replacing them. I also examine the basic difficulty in justifying any gatekeeper liability regime that stems from the need to establish its superiority over more direct forms of liability - namely, individual and enterprise liability - a task that hinges on the satisfaction of numerous complex conditions that cannot be established - easily, or at all (at least to the satisfaction of those inclined to oppose new liability regimes). Arguing that the Gadinis-Mangels proposal nevertheless holds strong promise, I suggest an extension designed to overcome defects associated with the fragmentation of the gatekeeping net that results from the presence of multiple gatekeepers in major business transactions.
Author | : Frank Partnoy |
Publisher | : |
Total Pages | : 9 |
Release | : 2004 |
Genre | : |
ISBN | : |
Download Strict Liability for Gatekeepers Book in PDF, ePub and Kindle
This article responds to a proposal by Professor John C. Coffee, Jr. for a modified form of strict liability for gatekeepers. Professor Coffee's proposal would convert gatekeepers into insurers, but cap their insurance obligations based on a multiple of the highest annual revenues the gatekeepers recently had received from their wrongdoing clients. My proposal, advanced in 2001, would allow gatekeepers to contract for a percentage of issuer damages, after settlement or judgment, subject to a legislatively-imposed floor. This article compares the proposals and concludes that a contractual system based on a percentage of the issuer's liability would be preferable to a regulatory system with caps based on a multiple of gatekeeper revenues.Both proposals mark a shift in the scholarship addressing the problem of gatekeeper liability. Until recently, scholarship on gatekeepers had focused on reputation - not regulation or civil liability - as the key limitation on gatekeeper behavior. Indeed, many scholars have argued that liability should not be imposed on gatekeepers in various contexts, and that reputation-related incentives alone would lead gatekeepers to screen against fraudulent transactions and improper disclosure in an optimal way, even in the absence of liability. From a theoretical perspective, this article is an attempt to move the literature away from a focus on reputation to an assessment of a potential reinsurance market for securities risks, where gatekeepers would behave more like insurers than reputational intermediaries.
Author | : Frank Partnoy |
Publisher | : |
Total Pages | : 44 |
Release | : 2004 |
Genre | : |
ISBN | : |
Download Barbarians at the Gatekeepers? Book in PDF, ePub and Kindle
This article attempts to fill a few of the gaps in current scholarship about gatekeepers, and sets forth a proposal for a modified strict liability regime that would avoid many of the problems and costs associated with the current due diligence-based approaches. Under the proposed regime, gatekeepers (investment banking, accounting, and law firms) would be strictly liable for any securities fraud damages paid by the issuer pursuant to a settlement or judgment. Gatekeepers would not have any due diligence-based defenses for securities fraud. Instead, gatekeepers would be permitted to limit their liability by agreeing to and disclosing a percentage limitation on the scope of their liability for the issuer's damages.For example, a gatekeeper for an issue might agree ex ante to be strictly liable for 10 percent of the issuer's liability related to the issuance, measured by the present value of any payment by the issuer pursuant to a settlement or judgment. A particular gatekeeper's liability would be limited to the issuer's liability related to that gatekeeper's role (e.g., counsel for the issuer or the underwriters generally would not be liable for material misstatements or omissions in audited financial statements). The percentage for each gatekeeper could range based on competitive bargaining and market forces, with a minimum limit (e.g., the amount of the gatekeeper's fee, or perhaps a fixed amount of 1 to 5 percent) set by law. This modified strict liability proposal is intended to solve two important and parallel problems in securities regulation. The first problem is the rapidly increasing and substantial costs related to the role of gatekeepers in securities fraud, including both the costs of behavior designed to capture the benefit of due diligence-based defenses and - more importantly - the costs of resolving disputes about gatekeeper behavior. The second problem is that the value of gatekeeper certification is declining at the same time costs are increasing. The article gathers evidence to demonstrate these two problems, and shows how a strict liability regime might ameliorate them. Throughout this discussion, the article challenges the assumption that gatekeepers act as reputational intermediaries.
Author | : Assaf Hamdani |
Publisher | : |
Total Pages | : 66 |
Release | : 2003 |
Genre | : Accountants |
ISBN | : |
Download Gatekeeper Liability Book in PDF, ePub and Kindle
Discusses third-party liability, especially the liability of "gatekeepers" (such as accountants, auditors, underwriters, lawyers, etc.) for a client's misconduct.
Author | : John C. Coffee |
Publisher | : Oxford University Press, USA |
Total Pages | : 398 |
Release | : 2006-06 |
Genre | : Business & Economics |
ISBN | : 0199288097 |
Download Gatekeepers Book in PDF, ePub and Kindle
John Coffee traces the evolution of the four main gatekeeping professions: auditors, lawyers, securities analysts and credit-rating agencies, in the wake of corporate governance disasters, such as Enron and WorldCom.
Author | : Gerhard Wagner |
Publisher | : |
Total Pages | : 30 |
Release | : 2013 |
Genre | : |
ISBN | : |
Download Gatekeeper Liability Book in PDF, ePub and Kindle
The first financial crisis, triggered by the burst of the U.S. housing bubble, has many causes. One such cause is the failure of gatekeepers, i.e. accounting firms and rating agencies. Consequently lawmakers on both sides of the Atlantic tightened the regulatory regimes for accountants and rating agencies, following the same path they had walked earlier, in response to financial scandals such as the one involving Enron and Worldcom. However, the liability rules for these institutions remained untouched once again so that accountants and rating agencies continue to work under skewed liability regimes. Incentives to err on the side of customers remain strong and unbalanced by adequate liability towards third parties. This article explores legislative strategies for a more symmetrical liability regime. In doing so, it takes a critical view of the recent EU Regulation No. 462/2013.
Author | : Steven Shavell |
Publisher | : Harvard University Press |
Total Pages | : 327 |
Release | : 2007-03-31 |
Genre | : Law |
ISBN | : 0674024176 |
Download Economic Analysis of Accident Law Book in PDF, ePub and Kindle
Accident law, if properly designed, is capable of reducing the incidence of mishaps by making people act more cautiously. Since the 1960s, a group of legal scholars and economists have focused on identifying the effects of accident law on people's behavior. Steven Shavell’s book is the definitive synthesis of research to date in this new field.
Author | : M. Stuart Madden |
Publisher | : Cambridge University Press |
Total Pages | : 508 |
Release | : 2005-09-26 |
Genre | : Law |
ISBN | : 9780521851367 |
Download Exploring Tort Law Book in PDF, ePub and Kindle
This is a collection of scholarship from the most influential contributors regarding Torts law.
Author | : Robert Bork |
Publisher | : |
Total Pages | : 536 |
Release | : 2021-02-22 |
Genre | : |
ISBN | : 9781736089712 |
Download The Antitrust Paradox Book in PDF, ePub and Kindle
The most important book on antitrust ever written. It shows how antitrust suits adversely affect the consumer by encouraging a costly form of protection for inefficient and uncompetitive small businesses.
Author | : Pamela J. Shoemaker |
Publisher | : Routledge |
Total Pages | : 305 |
Release | : 2009-09-10 |
Genre | : Social Science |
ISBN | : 1135860599 |
Download Gatekeeping Theory Book in PDF, ePub and Kindle
Gatekeeping is one of the media’s central roles in public life: people rely on mediators to transform information about billions of events into a manageable number of media messages. This process determines not only which information is selected, but also what the content and nature of messages, such as news, will be. Gatekeeping Theory describes the powerful process through which events are covered by the mass media, explaining how and why certain information either passes through gates or is closed off from media attention. This book is essential for understanding how even single, seemingly trivial gatekeeping decisions can come together to shape an audience’s view of the world, and illustrates what is at stake in the process.