University of Richmond Law Review

Regulating from the Ground Up: Controlling Financial Institutions with Bank Workers’ Unions

Emma Cusumano*

In the Wells Fargo accounts scandal, millions of banking accounts were created for customers without their consent. The scan dal cost Wells Fargo customers millions of dollars in direct and indirect charges. Investigations revealed that employees were pressured into creating these false accounts through abusive bank- ing practices promulgated from the top. These practices are not unique to Wells Fargo; instead, they are ubiquitous in the financial services industry.

Current financial regulations do not adequately address how to mitigate banks’ harmful practices. This comment explores the premise that bank worker unionization could serve as a much-needed check on the power of financial institutions and the directors and officers who run them. The comment provides an overview of why large financial institutions are incentivized to engage in harmful and economically unsound banking practices. The comment then outlines the potential for unions to constrain abusive commercial banking interests and recounts current efforts to unionize bank workers. Finally, the comment argues that threats to dismantle current consumer protection enforcement and banking regulations call for a new, worker-centered approach to hold financial institutions accountable to the public.

* J.D. Candidate, 2019, University of Richmond School of Law. B.A. & Sc., 2013, McGill University. I owe my gratitude to Professor Ann Hodges not only for her guidance in writing and researching this comment, but also for introducing me to the world of labor law with enthusiasm and insight. I would also like to thank the University of Richmond Law Review staff and editors for their excellent work in preparing this comment for publication.

Obtaining and Enforcing a Security Interest in Local Currency Under Article 9 of the UCC

Marina C. Leary*

Community currency is known by many names including complementary currency, alternative currency, and parallel currency. Community currency operates alongside an official or national currency (e.g., dollars or euros) with the purpose of circulating within a small geographic area to facilitate the sale of goods and services. In other words, community currency refers to a privatized form of currency that is not backed by a government entity. With the increased use of community currency, it has the potential to serve as collateral for a security interest under the Article 9 of the Uniform Commercial Code. Although there are several types of community currency, this article will focus on obtaining and enforcing a security interest in local currency. After analyzing local currency under the UCC in its current form, this comment will offer several suggestions to better handle a security interest in local currency under the UCC.

* J.D. Candidate, 2019, University of Richmond School of Law. B.A., 2014, Virginia Polytechnic Institute and State University. I would like to thank Professor David Frisch for his invaluable guidance and support throughout the writing process. I would also like to thank Jonathan Lazarow and Frances Lazarow for their thoughtful feedback on my comment. Lastly, I would like to thank the University of Richmond Law Review staff and editors for their assistance during the publishing process.

Evaluating a Permanent Court Solution for International Investment Disputes

Emily Palombo*

Despite the original objective of investor state dispute settlement (“ISDS”)—to create an unbiased arbitration mechanism to resolve conflicts between states and foreign investors—ISDS tribunals have gained the reputation of being one-sided, nontransparent, and inconsistent in decisions rendered. A major reform proposed to address the criticism of ISDS is the creation of one permanent tribunal, rather than numerous ad hoc tribunals constituted separately for each investment dispute. Discussion of ISDS reform in light of its historical context poses the question: is ISDS really a broken system, or have our global priorities and concerns changed over time? While improvements can be made, the current ISDS system is still faithfully serving its original purpose as a neutral tribunal where disputes can be arbitrated. In contrast, the creation of a permanent investment tribunal may thwart the principles envisioned for ISDS at its inception, most importantly, the balance between the protection of state sovereignty and the recognition of the investor as an autonomous private entity. This comment discusses a permanent court solution to international investment disputes in light of the European Council’s 2018 directive authorizing the European Commission to negotiate, on behalf of the European Union, a convention to establish a permanent body to settle investment disputes called the multilateral investment court (“MIC”). It compares the proposed MIC with the structure of the permanent investment tribunal, known as the Investment Court System, contemplated by the Comprehensive Economic and Trade Agreement. Ultimately, this comment concludes that ISDS tribunals can address many concerns through reform to the existing ad hoc system without requiring permanency, thus continuing to respect the original aims of the ISDS system and to foster international investment.

* J.D. Candidate, 2019, University of Richmond School of Law. B.A., 2014, Christopher Newport University. I am grateful to Professor Chiara Giorgetti for her thoughtful comments on my draft, and to Emma Greger and the rest of the University of Richmond Law Review staff for their time and effort spent ensuring this comment was ready for publication.

Civil Practice and Procedure

Christopher S. Dadak*

This article addresses changes and notable analyses in approximately a year’s worth of Supreme Court of Virginia opinions, passed legislation, and revisions to the Rules of the Supreme Court of Virginia affecting Virginia civil procedure. This article is not meant to be all encompassing, but it does endeavor to capture the highlights of changes or analyses regarding Virginia civil procedure. The opinions discussed throughout this article do not all reflect changes in Virginia jurisprudence on civil procedure. Some address clarifications or reminders from the court on certain issues it has deemed worthy of addressing (and that practitioners continue to raise). The article first addresses opinions of the supreme court, then new legislation enacted during the 2018 General Assembly Session, and finally approved revisions to the Rules of the Supreme Court of Virginia.

* Associate, Guynn & Waddell, P.C., Salem, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2008, Washington and Lee University. The author thanks the University of Richmond Law Review editors and staff for their patience and perseverance in bringing the Annual Survey book to fruition and particularly their efforts on this article.

Corporate and Business Law

Christopher L. McLean*

The past two years have produced a number of pieces of legislation from the Virginia General Assembly that serve to bring the set of Virginia business entity statutes up to date with its peers around the country. Part I highlights changes to the Virginia Stock Corporation Act (“VSCA”) and the Virginia Nonstock Corporation Act (“VNSCA”). Part II highlights changes to the Virginia Securities Act (“VSA”) and other statutes affecting Virginia business entities. Part III reviews two significant cases that the Supreme Court of Virginia decided over the past two years with respect to Virginia corporate law. Those decisions provided guidance on the concept of a foreign company “transacting business” in Virginia, the ability of a foreign company to maintain a suit in Virginia without properly obtaining a certificate from the Virginia State Corporation Commission (“Commission”) as a registered foreign company, and the survival of the “futility exception” with respect to derivative suits by members of a limited liability company (“LLC”).

* Member, Kaufman & Canoles, P.C., McLean, Virginia. J.D., 2010, University of Richmond School of Law; B.A., 2007, University of Virginia.

Criminal Law and Procedure

Aaron J. Campbell*, John I. Jones, IV** & Rachel L. Yates***

This article surveys recent developments in criminal law and procedure in Virginia. Because of space limitations, the authors have limited their discussion to the most significant appellate decisions and legislation.

* Assistant Attorney General,Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2009, University of Richmond School of Law; B.A., 2002, Concord University.
** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2015, Regent University School of Law; B.S., 2009, Central Christian College of Kansas.
*** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2013, University of Richmond School of Law; B.A., 2009, University of Virginia.

Family Law

Allison Anna Tait*

Once again this year, the Virginia courts and legislature have been occupied with a range of family law matters—from divorce, to custody, to support. Spousal support, in particular, has been much discussed in legislative chambers, as well as in courtrooms, and significant legislative changes will redesign how divorcing couples draft settlement agreements in the coming years. In other areas, there has been less activity and fewer results. Both the House of Delegates and the Senate of Virginia failed to move out of committee bills that would repeal “the statutory prohibitions on same-sex marriages and civil unions or other arrangements between persons of the same sex purporting to bestow the privileges and obligations of marriage.” Similarly stuck in committee was a bill to repeal the crime of adultery, and one to make “parenting and marriage terminology gender-neutral in the relevant law regarding adoption.”

* Associate Professor, University of Richmond School of Law. Thanks to the University of Richmond Law Review and Emily Palombo for inviting me to write this overview and to the staff for their excellent editorial work. Thanks also to Hayden-Anne Breedlove for her research assistance.

Professional Responsibility

James McCauley*

This article briefly describes some recent amendments to the Virginia Rules of Professional Conduct adopted by the Supreme Court of Virginia in 2016 and 2017. The changes affect the lawyer’s duty to protect confidential client information in this digital age, lawyer advertising and solicitation, and candor with a tribunal. The article also discusses two legal ethics opinions adopted by the court addressing a lawyer’s obligations when faced with another lawyer suffering from an impairment.

* Ethics Counsel for the Virginia State Bar. J.D., 1982, University of Richmond School of Law.

Taxation

Craig D. Bell* & Michael H. Brady**

This article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its sections cover legislative activity, judicial decisions, and selected opinions or pronouncements from the Virginia Department of Taxation and the Attorney General of Virginia over the past year.

* Partner, McGuireWoods LLP, Richmond, Virginia. LL.M., 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University.
Mr. Bell is the immediate past chair of McGuireWoods Tax and Employee Benefits Department, practices primarily in the areas of state and local taxation, and civil and criminal tax litigation. He is a Fellow of the American College of Tax Counsel, a Fellow of the Virginia Law Foundation, a Fellow of the American Bar Foundation, a Master of the J. Edgar Murdock Inn of Court (United States Tax Court), an adjunct professor of tax law at the College of William & Mary School of Law, and a past chair of both the Tax and Military Law sections of the Virginia State Bar and the Tax Section of the Virginia Bar Association. Mr. Bell is an emeritus director of The Community Tax Law Project, a nonprofit pro bono provider of tax law services for the working poor, and is its recipient of the Lifetime Pro Bono Achievement Award for his pro bono work in representing hundreds of Virginians before the IRS and in United States Tax Court and federal district court, as well as developing and training many lawyers in the area of federal tax law to expand pro bono tax representation for low-income taxpayers.
** Counsel, McGuireWoods LLP, Richmond, Virginia. J.D., 2009, University of Texas School of Law; B.S., 2006, Liberty University. Following law school Mr. Brady clerked for Chief Justice Cynthia D. Kinser of the Supreme Court of Virginia from 2009 to 2011. He then served as the assistant solicitor general in the Office of the Attorney General of Virginia from 2011 to 2014, joining McGuireWoods LLP in 2014.

Wills, Trusts, and Estates

Read Full Article (PDF)

J. William Gray, Jr.* & Katherine E. Ramsey**

The 2018 Virginia General Assembly enacted legislation to conform the interpretation of wills with trusts, revised the recent trust decanting and augmented estate statutes, and provided a procedure for resolving doctor/patient disputes over appropriate medical care. It also confirmed the creditor protection available for life insurance and annuities, and addressed certain entities’ eligibility for real and personal property tax exemptions, annual disclosures of charitable organizations’ administrative and charitable service expenses, virtual nonstock corporation member meetings, bank directors’ stock holdings, the disposition of unused tax credits at the taxpayer’s death, and fiduciary qualification without surety. The Supreme Court of Virginia handed down eight recent decisions addressing the presumption of undue influence, requirements for estoppel and preclusion, the signature requirement for a proper codicil, trust governing law and interpretation, the fiduciary duties of agents, the jurisdiction of Commissioners of Accounts, and appraisal requirements for state tax credits.

* Partner, McGuireWoods LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.
** Partner, Virginia Estate & Trust Law, PLC, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

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