Failure to exhaust administrative remedies. Ravencraft v. UNUM Life Insurance Company of America

Ravencraft v. UNUM Life Insurance Company of America, 212 F.3d 341 (6th Cir. 2000): Although ERISA does not explicitly require it, the Sixth Circuit and most of the others require that a participant pursue all plan remedies before bringing suit. An action against a plan or plan fiduciary will be dismissed if the participant fails to exhaust the administrative remedies available to it under the plan unless he or she can show that pursuing those remedies would be futile, such as where the available remedies are inadequate or unfair. If a participant's case is dismissed solely because of the failure to follow the procedural steps for review under the plan, the dismissal should be without prejudice so that the participant can file suit again, if necessary, after he or she goes back to pursue the remedies available under the plan.     

Federal employees--random drug and alcohol testing--subject matter jurisdiction--issue preclusion--exhaustion. Whitman v. Department of Transportation

The Supreme Court, in a per curium decision, vacated a ruling against an air traffic controller in his claim that he was subjected to more than random drug testing and remanded the matter to the Ninth Circuit to determine whether the petitioner exhausted his administrative remedies and whether exhaustion is required, or, if necessary, whether the Civil Service Reform Act precludes employees from pursuing claims beyond those set out in that act, i.e., whether Congress intended to remove such actions from the general grant of subject matter jurisdiction under 28 U.S.C. paragraph 1331.     

Safety Products, Inc.: A case in financial analysis of a failing company

Safety Products, Inc. was a small, private corporation that manufactured acrylic sheet plastic. After a massive fire, the company filed a claim against its business interruption insurance for lost income. The policy covered profits that would have been earned, based on Safety’s financial records, had the disaster not occurred. The insurance company denied the claim on the grounds that Safety Products was not a going concern, and, therefore, there were no lost earnings.The basic learning objective of the case is to develop the students’ abilities to use and analyze a company history, along with its financial statements and ratios, to evaluate the going-concern assumption. The AICPA Core Competency Framework identifies a set of skills-based competencies needed to enter the accounting profession. The case provides a means to develop student skills in the Functional, Personal, and Broad Business Competencies, which are core skills relevant to long-term career opportunities. [American Institute of Certified Public Accountants (AICPA) (2001). AICPA core competency framework for entry into the accounting profession (the framework). Retrieved from < http://www.aicpa.org/edu/corecomp.htm > on April 3, 2006]The case is directed to an upper-division undergraduate or graduate course in Financial Statement Analysis. However, the case could be used in any accounting course that examines the going-concern or continuity assumption among the traditional assumptions of the accounting model.     

Tocqueville revisited. The meaning of American prosperity

Why is business so admired in the United States and so often denigrated in Europe? How has America created 30 million new jobs in the last 20 years while the European Union, with a bigger population, only managed 5 million? What is feeding America's apparently inexhaustible appetite for growth and its recent dramatic improvements in productivity? In 1831, French philosopher Alexis de Tocqueville came to America to examine its prison system and returned with a vision of democracy so profound it has become part of our cultural heritage. More than a century and a half later, renowned British business philosopher Charles Handy retraces Tocqueville's intellectual journey, this time focusing not on democracy but on capitalism. The result is an eye-opening look at some of the fundamental assumptions underpinning business in America today. It is America's optimism that Handy finds most striking, the unquestioned belief that tomorrow can--and should--be made better than today. He contrasts this with the Spaniards when they came to the New World: No haya novedades, those Spaniards would say, "Let nothing new arise." The energy engendered by American optimism, coupled with the Puritan belief in work and in the nobility of earned wealth (as opposed to Europe's furtive attitude toward its nobility's inherited wealth) lies, in Handy's view, at the heart of America's success. Will American capitalism, born as it was from a property-owning democracy, now adapt to a dematerialized world, where property is intellectual rather than physical? Handy draws no absolute conclusions, but rather lays out the challenges that must be overcome for tomorrow to indeed continue to be better than today in this still-young country.     

Creating the most frightening company on earth. An interview with Andy Law of St. Luke's. Interview by Diane L. Coutu

Though only five years old, employee-owned St. Luke's Communications has become one of the most talked about advertising agencies in the United Kingdom, winning numerous awards--though it doesn't enter contests--and increasing its profits eightfold. Chairman and cofounder Andy Law attributes the firm's success to its determination to continuously reinvent itself in a world populated by dot-coms and mega-ad agencies. St Luke's intends to revolutionize the way business is done and provide a credible alternative to the capitalism of both the old economy and the new. To that end, it pushes its people to take enormous risks. As Law says in this candid interview, "We're fundamentally convinced that there is a connection between co-ownership, creativity, collaboration, and competitive advantage." In this interview, Law comments on topics ranging from dot-coms--he calls them old-fashioned--to the hazards of St. Luke's environment. "When I see ... paranoia," he says, "it's a sign there's been too much change." Along the way, he provides concrete examples of how St. Luke's fosters its brand of "confrontative, angry creativity" and manages an organization that is run "like a radical democracy." Safety and fear play key roles. No one has ever been fired for poor performance, so employees can feel secure about their jobs, but the firm requires people "to peel away all the levels of their personalities.... That's truly frightening." Self-knowledge, Law says, "is the DNA of a creative company in the creative age."     

美国证券欺诈起诉标准的新发展——以Matrixx v.Siracusano案为中心

2011年3月美国联邦最高法院审结的Matrixx案,明确了原告提起私人证券欺诈之诉时应满足的"重大性"和"故意"两个起诉标准之具体含义。最高法院拒绝在"重大性"问题上适用黑白分明的判断标准,坚持从"是否有实质性可能性使一个理性的投资者认为被遗漏信息的披露将显著改变现有信息的全局"角度来判断某一信息是否重大。Matrixx案判决将进一步加强上市公司的披露义务,并在一定程度上为原告提起证券欺诈之诉提供便利。     

Medicare on the critical list. Understanding the etiology of the disease will help in the search for a cure.

Medicare, and its companion program Medicaid, came into being as part of Lyndon Johnson's Great Society. Their purpose was to provide the elderly with equal access to high-quality medical care. Though the goals were laudable, the magnitude of the costs and of the effects was unforeseen. As the two programs made medical care available to a large segment of the population, the demand grew. At the same time, private industry became more generous with its health insurance plans. Because of their emphasis on hospital care, the governmental and private industry plans helped push hospital prices up. Now that both sectors are finding the cost of medical care unacceptably high, Congress is proposing remedial legislation and corporations are trying alternative health care plans. These authors explore how well the maladies of Medicare may respond to the various cures that are being proposed.     

从“新华富时”案看证交所行情信息权益的保护

“新华富时”案是一起证券信息许可使用合同纠纷案件，以新华富时指数公司败诉结案。案件争议的焦点主要是证券交易所对行情信息的权利、证券信息许可使用合同限制性条款的效力等。本文认为，行情信息权利可归为现行法上的汇编作品著作权，将来可规定为数据库权利；应综合运用法律、合同和技术等手段对行情信息权利加以保护；应本着公平、有偿和成本原则，在交易所行情信息权利保护与其履行公共职责之间实现平衡。