'Dealing With Disruption: Emerging Approaches to FinTech Regulation' by Saule T Omarova in (2020) 61
Washington University Journal of Law and Policy 25
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This article examines the emerging regulatory responses to an ongoing fintech disruption of traditional finance. Focusing primarily on the U.S. experience to date, it offers a three-part taxonomy of principal approaches to fintech taken by financial regulators: what I call the “experimentation” approach, the “incorporation” approach, and the “accommodation” approach. Within this framework, the article analyzes the pros and cons of establishing regulatory sandboxes and innovation hubs, issuing special fintech charters, and pursuing various regulatory-adjustment measures under a broad heading of RegTech.
'COVID-19 As a Force Majeure in Corporate Transactions' by Matthew Jennejohn, Julian Nyarko and Eric L. Talley
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This paper surveys the use of pandemic-related provisions in Material Adverse Effects ("MAE") provisions in a large data set of publicly disclosed M&A transactions spanning the years 2003-2020. We document a trend towards greater use of such provisions, taking off particularly after the H1N1 crisis in 2009, and spiking again in late 2019 and early 2020. These terms are invariably located in the exclusions/carve-outs to the MAE, and they are overwhelmingly accompanied by "disproportionate effects" language that tends to dampen the effect of the carve out. There is little discernible statistical relationship between the inclusion of a pandemic-related carve-out and the inclusion of a reverse termination fee ("RTF") granting optionality to the buyer; but when an RTF is present, its magnitude tends to be smaller in the absence of any pandemic-specific carve-out, suggesting some degree of observational complementarity between these terms.
