Saturday, March 25, 2017

Kissing Cousins: MERS and DTC

This semester, I’m teaching a seminar on the financial crisis.  And because my specialty is corporate and securities law, not property, I brought in a ringer – in the form of Chris Odinet of Southern University Law Center – to talk to my class about the Mortgage Electronic Registration System (MERS) and foreclosures.  MERS is a private organization that mortgage bankers have used to track mortgage assignments in the age of securitization, but after the housing bubble burst, it wreaked havoc in the foreclosure process because of sloppy recordkeeping and its inconsistency with the traditional manner in which interests in land have been recorded.  See generally Christopher Lewis Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory, 53 Wm. & Mary L. Rev. 111 (2011).

As Chris Odinet described it to my class, MERS was formed when several financial institutions (including, as it turns out, the Mortgage Bankers Association, Fannie Mae, Freddie Mac, the Government National Mortgage Association, the Federal Housing Administration, and the Department of Veterans Affairs) decided that publicly recording mortgage assignments in county property offices was too expensive and cumbersome.  Instead, these institutions decided to form a shell corporation that would “own” all mortgage interests.  Then, instead of formally transferring mortgages from one financial institution to another, MERS would electronically track transfers of ownership.  That way, expensive and anachronistic paper recording systems could be bypassed, and mortgages could be quickly transferred to meet the needs of the age of securitization.

It occurred to me that this is exactly what occurred with stock ownership.  Stock transfers, too, used to be conducted via paper endorsements, which created a literal paper crisis in the 1960s.  See In re Appraisal of Dell.  In response, Congress and the SEC adopted a system of “share immobilization,” namely, that almost all stock today is actually owned by a company called DTC.  DTC is owned by broker dealers, and DTC electronically tracks which shares are allocated to which brokerage.  Those brokerages, in turn, allocate the shares among their clients. 

After class, I looked into the history, and it turns out I wasn’t wrong to draw the comparison: MERS was actually explicitly modeled on DTC.   See Phyllis K. Slesinger & Daniel McLaughlin, Mortgage Electronic Registration System, 31 Idaho L. Rev. 805 (1995).  But – and I suppose hindsight is 20/20 – it’s easy to see why the stock transfer system could not simply be wholesale transferred to mortgages,  which is precisely why MERS has created so many headaches.

For starters, the share immobilization system was mandated by Congress, to deal with a federally-regulated system of stock ownership.  As a result, the regulatory system adapted to the change, and federal rules were created to allow a “look-through” to the beneficial owner of the security instead of focusing on the formal record holder.  See, e.g., 17 C.F.R. § 240.14a-13.  Nothing like that happened with MERS, because it was created without the imprimatur of any legislative or regulatory body.  As a result, there are no formal procedures that permit a look past MERS to the beneficial owner of the mortgage, which is part of the reason why MERS’s legal status has been so uncertain.

Relatedly, MERS often includes only the name of the servicer in its system, and does not require its members to record transfers between mortgagees (although, Chris tells me, MERS recently has tried to improve its practices in this regard).  As a result, MERS records simply do not contain information about who actually owns the mortgage, and these private transfers create opportunities for confusion and mischief.  By contrast, stock transfers are heavily regulated, and settlement is required by SEC rule – within 3 days (soon to become 2).

Beyond these regulatory points, mortgage ownership is simply more complex than stock ownership.  A stock transfer is a personal property transfer.  There is a relatively minimal ongoing relationship with the issuing corporation – more on that below – but for the most part, it’s just property being transferred from A to B.

Mortgages, however, involve transfers between lenders, who must carry on complex and financially significant relationships with borrowers and servicers.  Payments from the borrower must be made and applied to the loan; two-way lines of communication must be maintained; in extreme cases, foreclosures must be managed.  On top of that, arcane rules govern the distinction between the mortgage itself and the note that represent the debt.  It is precisely in these areas that MERS has broken down.

Additionally, America has long had a commitment to creating public, transparent records of interests in real estate, including the chain of title; MERS destroyed that by creating an opaque system that fails to keep track of past transfers.  Stock ownership, by contrast, has never been publicly accessible, and the only area where chain of title is relevant is Section 11 (which, incidentally, has also been undermined by DTC).

That said, even the DTC-share immobilization system has been plagued by recordkeeping and legal problems; it is simply that at the end of the day, these problems are far less devastating to the lives of individual people than are the problems with MERS.

For example, stock ownership does involve an ongoing relationship with the issuing corporation (though one far more attenuated than in the ongoing relationships between borrowers and lenders in a mortgage loan), and errors/gaps in recordkeeping can affect that relationship.  Marcel Kahan and Edward Rock wrote about the “Hanging Chads of Corporate Voting,” detailing how voting procedures may be inadequate to keep up with share immobilization.  Moreover, the DTC system – which operates at the federal level – has created uncertainty with respect to state-level recordkeeping systems.  See In re Appraisal of Dell; Dole Case Illustrates Problems in Shareholder System.

But ultimately, a lost or miscounted shareholder vote, or even lost payments in a merger, are peanuts compared someone losing their home in a legally defective foreclosure, or simply the inability of a homeowner to develop a workout plan.

Perhaps fundamentally, then, the difference is about the power imbalances.  The corporate issuer of stock - the constant at the center of shifting shareholder bases - ultimately is the one with control over resources; shareholders' rights and powers are fairly minimal.  By contrast, the "issuer" of the mortgage note - the individual borrower who remains constant at the center of shifting lenders - is the most vulnerable player in the lending system, at the mercy of a rotating cast of sophisticated mortgagees and servicers.  A trading scheme like DTC/share immobilization, designed to accommodate those with very little power vis a vis the obligor, is not one that will do justice when the power relationships are reversed.

Point being, there were a lot of red flags - that might have been evident earlier - in trying to privately model a mortgage transfer system on the federally-mandated system for transferring stock, but here we are.  The banks weren't wrong about the problems with dealing with local recording systems in today's economy; but a true fix will require public mandates and coordination across all jurisdictions.

March 25, 2017 in Ann Lipton | Permalink | Comments (1)

Friday, March 24, 2017

Impact Esq. and Kickstarter's 2016 Benefit Statement

Attorney Kyle Westaway has started a monthly e-mail that compiles information about social enterprise and impact investing law. You can subscribe here.

In the latest Impact Esq. newsletter, Kyle included a link to the Kickstarter’s 2016 Benefit Statement. Kyle wrote that he had “never seen [a benefit report] as strong as Kickstarter’s.” Personally, I am not sure I would go that far. I think Greyston Bakery’s Report and Patagonia’s Report are at least as good. I do think the Kickstarter report is relatively good, but the bar is incredibly low, as many benefit corporations are ignoring the statutory reporting requirement or doing a pathetically bad job at reporting.

While the Kickstarter report is more detailed than most, it still reads mostly like a PR piece to me. The vast majority of the report is listing cherry-picked, positive statistics. That said, Kickstarter did note a few areas for possible improvement, which is extremely rare in benefit report. Kickstarter stated that they could do more to promote “sustainability,” that they could do more to encourage staff to “take advantage of the paid time off we provide for volunteering,” and that they wanted to “encourage greater transparency from creators, better educate backers about the risks and rewards of this system, and further empower our Integrity team in their work to keep Kickstarter safe and trusted.” These “goals” for improvement are quite vague, and I would have liked to see more specific goals.

A few other things to note:

  • University of Pennsylvania produced a study, which was cited and used in the report. I think involving universities in the creation of these reports could be a good idea, though possible conflicts should be considered.
  • “Including both salary and equity, our CEO's total compensation equaled 5.52x the median total compensation of all non-CEO, non-founder employees in 2016. For context, a 2015 study examining the executive pay gap found that the average CEO earns 204 times that of the median worker for the same company.” I would be interested in how Kickstarter’s number compares to companies in their industry, especially direct competitors. I imagine the CEO/Employee compensation ratio is lower in the technology industry, where the market demands fairly high employee compensation, but even considering the industry, Kickstarter's ratio still seems quite low.
  • “Kickstarter overall team demographics: 53% women; 47% men. 70% White/Caucasian; 12% Asian; 12% two or more races; 4% Hispanic or Latino; 2% Black/African American.” This seems to be a good bit more diverse, especially as to gender, than other technology companies who have released similar data.
  • “Everyone who works at Kickstarter receives an annual Education Stipend to explore their interests outside the office. In 2016, our employees used their stipends towards blacksmithing classes, a bookmaking class, a synthesizer, pottery courses, an herbal medicine workshop, art supplies, improv classes, a neon light making seminar, and embroidery.” I didn’t see how much the education stipend was, but this seems like a good perk.
  • “We donated 5% of our after-tax profits to six organizations working to build a more creative and equitable world.” Profits are easier to manipulate than revenues; I’d like to see a revenue floor (as Patagonia does – donating the greater of 10% of profits and 1% of revenues). That said 5% of profits can be significant and does show some commitment to these causes.

March 24, 2017 in Business Associations, Corporate Governance, CSR, Current Affairs, Haskell Murray, Social Enterprise | Permalink | Comments (0)

Thursday, March 23, 2017

ICYMI: SSRN Roundup (March 23, 2017)

March 23, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Wednesday, March 22, 2017

What does the EU know that the U.S. Doesn’t About the Effectiveness of Conflict Minerals Legislation?

Earlier this month, the EU announced plans to implement its version of conflict minerals legislation, which covers all “conflict-affected and high-risk areas” around the world. Once approved by the Council of the EU, the law will apply to all importers into the EU of minerals or metals containing or consisting of tin, tantalum, tungsten, or gold (with some exceptions). Compliance and reporting will begin in January 2021. Importers must use OECD due diligence standards, report on their progress to suppliers and the public, and use independent third-party auditors. President Trump has not yet issued an executive order on Dodd-Frank §1502, aka conflict minerals, but based on a leaked memo, observers believe that it's just a matter of time before that law is repealed here in the U.S. So why is there a difference in approach?

In response to a request for comments from the SEC, the U.S Chamber of Commerce, which led the legal battle against §1502, claimed, “substantial evidence shows that the conflict minerals rule has exacerbated the humanitarian crisis on the ground in the Democratic Republic of the Congo…The reports public companies are mandated to file also contribute to ―information overload and create further disincentives for businesses to go public or remain public companies. Accordingly, the Chamber strongly supports Congressional repeal of Section 1502 due to its all-advised and fundamentally flawed approach to solving a geopolitical crisis, and the substantial burden it imposes upon public companies and their shareholders.”

The Enough Project, which spearheaded the passage of §1502, submitted an eight-page statement to the SEC last month stating, among other things, that they “strongly oppose[] any suspension, weakening, or repeal of the current Conflict Minerals Rule, and urge[] the SEC to increase enforcement of the Rule….The Rule has led to improvements in the rule of law in the mining sectors of Congo, Rwanda, and other Great Lakes countries, contributed to improvements in humanitarian conditions in Congo and a weakening of key insurgent groups, and resulted in tangible benefits for U.S. corporations and their supply chains.”

I agree that the Rule has led to increased transparency and efficiency in supply chains (although some would differ), and less armed control of mines. But I’m not sure that the overall human rights conditions have improved as significantly as §1502’s advocates (and I) would have liked.

As Amnesty International’s 2016/2017 report on DRC explains in graphic detail, “armed groups committed a wide range of abuses including: summary executions; abductions; cruel, inhuman and degrading treatment; rape and other sexual violence; and the looting of civilian property... various ... armed groups (local and community-based militias) were among those responsible for abuses against civilians. The Lord’s Resistance Army (LRA) continued to be active and commit abuses in areas bordering South Sudan and the Central African Republic. In… North Kivu, civilians were massacred, usually by machetes, hoes and axes. On the night of 13 August, 46 people were killed … by suspected members of the Allied Democratic Forces (ADF), an armed group from Uganda that maintains bases in eastern DRC…Hundreds of women and girls were subjected to sexual violence in conflict-affected areas. Perpetrators included soldiers and other state agents, as well as combatants of armed groups…Hundreds of children were recruited by armed groups...”

Human Rights Watch’s 2017 report isn’t any better. According to HRW, “dozens of armed groups remained active in eastern Congo. Many of their commanders have been implicated in war crimes, including ethnic massacres, killing of civilians, rape, forced recruitment of children, and pillage. In … North Kivu, unidentified fighters continued to commit large-scale attacks on civilians, killing more than 150 people in 2016 … At least 680 people have been killed since the beginning of the series of massacres in October 2014. There are credible reports that elements of the Congolese army were involved in the planning and execution of some of these killings. Intercommunal violence increased as fighters … carried out ethnically based attacks on civilians, killing at least 170 people and burning at least 2,200 homes.

Finally, according to a February 17, 2017 statement from the Trump Administration, “the United States is deeply concerned by video footage that appears to show elements of the armed forces of the Democratic Republic of Congo summarily executing civilians, including women and children. Such extrajudicial killing, if confirmed, would constitute gross violations of human rights and threatens to incite widespread violence and instability in an already fragile country. We call upon the Government of the Democratic Republic of Congo to launch an immediate and thorough investigation, in collaboration with international organizations responsible for monitoring human rights, to identify those who perpetrated such heinous abuses, and to hold accountable any individual proven to have been involved.”

Most Americans have no idea of the atrocities occurring in DRC or other conflict zones around the world. I have spent the past few years researching business and human rights, particularly in conflict zones in Latin America and Africa. I filed an amicus brief in 2013 and have written and blogged about the failure of disclosure regimes a dozen times because I don’t believe that name and shame laws stop the murder, rape, conscription of  child soldiers, and the degradation of innocent people. I applaud the EU and all of the NGOs that have attempted to solve this intractable problem. But it doesn't seem that enough has changed since my visit to DRC in 2011 where I personally saw 5 massacre victims in the road on the way to visit a mine, and met with rape survivors, village chiefs, doctors, members of the clergy and others who pleaded for help from the U.S. Unfortunately, I don’t think this legislation has worked. Ironically, the U.S. and EU legislation go too far and not far enough. I hope that if the U.S. and EU focus on a more holistic, well-reasoned geopolitical solution with NGOS, stakeholders, and business.

March 22, 2017 in Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Human Rights, Marcia Narine Weldon, Securities Regulation | Permalink | Comments (0)

Tuesday, March 21, 2017

Abolishing Veil Piercing Is for Legislatures, Not Courts

I write often about how courts often incorrectly treat LLCs as corporations.  Last week, I reported on a case about a court that misstated, in my view, the state of the law regarding LLCs and veil piercing.  When I do so, I often get comments about how veil piercing should go away. Prof. Bainbridge replies similarly here

I am on record as being open to the elimination of veil piercing (I am actually, at least in theory, working on an article tentatively called Abolishing Veil Piercing Without Abolishing Equity), and I am especially open to the idea of abolishing veil piercing with regard to contract-based claims.  (Texas largely does this by requiring "actual fraud" for cases arising out of contract. For a great explanation of Texas law on the subject, please see Elizabeth Miller's detailed description here.)

Several courts over the years, most notably the Wyoming court in Flahive, have extended the concept of veil piercing to LLCs, even where a statute did not explicitly provide the concept of veil piercing. Although I think these courts got it wrong, now that concept of veil piercing is well established for corporations and LLCs in virtually all (if not all) U.S. jurisdictions, I think any rollback must properly be done by statute. 

In the past, I have been critical of courts like the one in Flahive, because I agree with Prof. Bainbridge and others who argue that veil piercing, when not expressly stated, may well have not been intended.  Minnesota, for example, has at least made the concept clear. Minnesota LLC law provides: 

322B.303 PERSONAL LIABILITY OF MEMBERS AS MEMBERS.

Subdivision 1. Limited liability rule. 

Subject to subdivision 2, a member, governor, manager, or other agent of a limited liability company is not, merely on account of this status, personally liable for the acts, debts, liabilities, or obligations of the limited liability company.

Subd. 2. Piercing the veil.

The case law that states the conditions and circumstances under which the corporate veil of a corporation may be pierced under Minnesota law also applies to limited liability companies.  . . . .

Like most states, Minnesota courts are willing to pierce the corporate veil where (1) an entity ignores corporate formalities and serves as the alter ego of a shareholder and (2) enforcing the liability limitations of the corporate form leads to injustice or is fundamentally unfair. I have often used this example of how a state should, if they want to have LLC veil piercing, proceed. That is, although I would not advocate for doing so, if a state is going to have veil piercing of LLCs, it should be expressly stated. The statute may be flawed in concept, but that's a call for the legislature.  

The Minnesota statute is well crafted to achieve its apparent goals, in that it makes clear that one can, in fact, be "personally liable for the acts, debts, liabilities, or obligations of the limited liability company" merely on account of being a member of an LLC.  That is, the general rule is that members are not liable for the LLC's debts, but where an LLC veil is pierced, all members become personally liable for the debts, regardless of the their actions.  In Minnesota, this includes "corporate formalities" as a factor for corporate veil piercing and thus it applies to LLCs, even though LLCs have few, if any, statutory formalities (and many states disclaim formalities as an obligation to maintain limited liability for an LLC).  

This seems wrong to me, especially the part about making those who did not participate in the bad behavior potentially liable and adding a corporate-formalities requirement to an entity that is not supposed to have them.  As Prof. Bainbridge argues in Abolishing Veil Piercing,  "Abolishing veil piercing would refocus judicial analysis on the appropriate question-did the defendant-shareholder do anything for which he or she should be held directly liable."  I agree.  

Still, because veil-piercing of entities is well-settled law, I don't think judges have latitude to eliminate it. Judges must focus on proper limitations and clarity of the law that is still subject to interpretation (or plainly inconsistent with the law), where possible.  At this point, abolishing veil piercing must be done by statute. Maybe some bold legislators will heed the call.

March 21, 2017 in Corporate Personality, Corporations, Joshua P. Fershee, LLCs | Permalink | Comments (0)

Monday, March 20, 2017

What I Did On My Spring Break

Ringling1

No.  This is not a travelogue.  Rather, it's a brief additional bit of background on a case that business associations law professors tend to enjoy teaching (or at least this one does).

In Ringling Bros. Inc. v. Ringling, 29 Del. Ch. 610 (Del. Ch. 1947), the Delaware Chancery Court addresses the validity of a voting agreement between two Ringling family members, Edith Conway Ringling (the plaintiff) and Aubrey B. Ringling Haley (the defendant).  The fact statement in the court's opinion notes that John Ringling North is the third shareholder of the Ringling Brothers corporation.

I spent two days in Sarasota Florida at the end of Spring Break last week.  While there, I spent a few hours at The Ringling Circus Museum.  It was fascinating for many reasons.  But today I will focus on just one.  I noted this summary in one of the exhibits, that seems to directly relate to the Ringling case:

Ringling2

Interestingly, 1938 is the year in which the plaintiff and defendant in the Ringling case created their original voting trust (having earlier entered into a joint action agreement in 1934).  The agreement at issue was entered into in 1941.  Could it be that, perhaps, the two women entered into this arrangement as a reaction to John Ringling North's desire to acquire--or successful acquisition of--management control of the firm?  I want to do some more digging here, if I can.  But I admit that the related history raised some new questions in my mind.  John Ringling North was all but forgotten in my memory and teaching of the case, until the other day . . . .  The case takes on new interest in my mind (more broadly as a close corporation case) because of my museum visit and discovery. 

[Postscript - March 21, 2017:  Since posting this, I have been blessed by wonderful, helpful email messages offering general support, PowerPoint slides (thanks, Frank Snyder), a video link (thanks, Frances Fendler), and referrals to/copies of Mark Ramseyer's article on the Ringling case, Ringling Bros.-Barnum & Bailey Combined Shows v. Ringling: Bad Appointments and Empty-Core Cycling at the Circus, which offers all the detail I could want (thanks, again, Frances, and thanks, Jim Hayes) to help fill in the gaps--while still creating a bit of mystery . . . .  I am a much better informed instructor as a result of all this!  Many thanks to all who wrote.]

March 20, 2017 in Business Associations, Corporate Governance, Corporations, Joan Heminway, Shareholders, Teaching | Permalink | Comments (0)

Sunday, March 19, 2017

ICYMI: Tweets From the Week (March 19, 2017)

March 19, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Saturday, March 18, 2017

[Insert Clever Snap-Related Subject Line]

One of the hottest topics in business news today is the Snap IPO.

It’s the biggest tech IPO in some time (although some smaller ones apparently will be close behind), the company has so far been losing money and its growth has slowed, and oh yeah – its public shares do not have any voting rights.

In some ways, the disenfranchisement of Snap’s shareholders is the natural culmination of the dual-class share structures that have been popular with tech companies for a while.  But Snap is obviously taking things to extremes.  With no votes, there are no proxy statements.  Most of that information will be disclosed in Snap’s 10-K, but it also means there will be no say-on-pay votes and no shareholder proposals.  Sure, these are – or tend to be – nonbinding anyway, but Snap has shut down the mechanism by which shareholders as a group initiate conversations with the companies in which they invest. 

Some commenters call Snap a one-off; after all, even now, Snap’s shares have fallen well below their first day trading price, and analyst reaction has been less than enthusiastic.  But Snap is still trading higher than its offering price (at least for now), and Snap’s founders made hundreds of millions just from the IPO itself, without sacrificing control of the company – plenty of incentive for new players to try to replicate Snap’s results.  The matter has caused enough concern that the SEC has begun to examine it, though it’s unclear what – if anything – they expect to be able to do.  (I mean, the SEC’s power to directly regulate voting rights is a bit limited, but theoretically listing standards for NYSE and NASDAQ could be modified.).

One of the most interesting developments, at least to me, is the effort by institutional investors to have Snap excluded from major indexes (with a parallel effort across the pond); otherwise, they’d be forced to buy Snap’s shares despite their objections to Snap’s structure, and Snap would get a bit of a boost in its stock price - along with a class of shareholders who cannot vote with their feet.  I don’t know what the indexes are likely to do, but if they include Snap, will that open a space for alternative indexes that exclude no-vote shares – like Snap and perhaps Google Class C?  I have to admit, that would be an elegant free market solution.

One other interesting aspect of the Snap IPO concerns the nature of its shareholders: millennials.  Apparently, millennials have snapped up Snap shares, eager to invest in a company that plays such a role in their lives.  Snap doesn’t love them quite as much, of course, but if you view investing as consumption rather than a way to profit, I suppose it’s no worse than any other recreational activity.

In fact, there’s a whole startup devoted to encouraging consumers to buy stock in their favorite companies – and the companies will pay your brokerage fees.  (Joan posted earlier about a similar type of program at Domino's Pizza.) The theory is, stockholder-consumers are more loyal customers (and, I assume, more pliant voters), so it’s worth it to companies to cultivate a consumer shareholder base.  It happened before, that retail investors helped management fend off attacks; I wonder if the next would-be Snap might consider a less draconian approach to shareholder voting, but a more aggressive approach to marketing shares to its user base.

March 18, 2017 in Ann Lipton | Permalink | Comments (2)

Friday, March 17, 2017

Q&A with the Managing Editor of the Peer-Reviewed Atlantic Law Journal

Professor Keith Diener of Stockton University School of Business, who is a former law school classmate of mine and the current managing editor of the Atlantic Law Journal, agreed to answer some questions related to the journal.  

The flagship journals for the Academy of Legal Studies in Business ("ALSB") are the American Business Law Journal (ABLJ) and the Journal of Legal Studies Education (JLSE, primarily pedagogy articles and teaching cases). In addition to these two journals, each regional association is generally responsibly for at least one journal with the Atlantic Law Journal coming out of the Mid-Atlantic region.

As Keith explains below, these journals are open to a wide range of scholars, including professors from law schools. I would encourage legal scholars who have not published in a traditional peer reviewed journal to consider submitting to one of the ALSB journals. I have published in both the ABLJ and the JLSE, and I have had good experiences in both cases.

---------- 

Please provide us a brief overview of the Atlantic Law Journal and the MAALSB.

The Mid-Atlantic Academy for Legal Studies in Business (MAALSB) is an association of teachers and scholars primarily in the fields of business law, legal environment, and law-related courses outside of professional law schools with members from the Mid-Atlantic states, including Delaware, Maryland, Pennsylvania, Virginia & West Virginia.  Residence in those states is not required for membership in the MAALSB, and many of our members come from different regions and states. In addition to sponsoring the Atlantic Law Journal, MAALSB holds an annual conference for our region usually in April of each year, where our members meet, present papers, and exchange ideas. The MAALSB is one of the regional branches of the national Academy of Legal Studies in Business (ALSB).

For over a decade, the Atlantic Law Journal was tied to the MAALSB annual conference. Presentation at the conference provided an opportunity for publication in the journal. A few years ago, the journal restructured and began accepting articles on a rolling basis, year-round. We welcome submissions from law professors, whether in law schools or not, but generally do not accept student-authored articles. We are soon entering our twentieth year as a viable legal publication.

What is your current role with the journal and what roles do other faculty members play?

The Atlantic Law Journal has a dedicated team of editors who, depending on classification, perform different roles within the journal.

Our Editor-and-Chief, Professor Cynthia Gentile, leads the journal, manages its website, publishes the annual volume, manages its listings in Cabell’s and Washington and Lee’s Journal Rankings, and coordinates indexing and archiving on Westlaw. As Editor-and-Chief, Professor Gentile is primarily responsible for journal outreach, growth, and sustainability.

I currently serve the journal as the Managing Editor. In this capacity, I receive all submissions to the journal, sanitize them for double, blind peer review, send the sanitized articles to our staff editors for review, receive their recommendation and feedback forms, and notify authors of publication decisions.

We currently have two Articles Editors, Professors Laura Dove and Evan Peterson, who work with the accepted authors to prepare their manuscripts for publication, by editing the articles and making suggestions for improvement even after acceptance.

We also have a team of roughly 30-40 professors from around the country who serve the journal as Staff Editors. Without our Staff Editors, our journal would not function. They are responsible for peer-reviewing the submitted articles, and making recommendations for (i) acceptance, (ii) conditional acceptance, (iii) revision and resubmission, or (iv) rejection of the submitted articles.

What details can you provide about the submission process, including contact information, desired word-count range, typical article topics, etc.?

We generally publish annually, usually in July or August. September through January are typically the best months to submit if you are seeking to be published in the following summer. Spring semester submissions are also welcome, but are often more competitive. Although there are no per se word ranges, article lengths typically span 7,500 to 15,000 words. We publish a wide range of articles, but to be published in the Atlantic Law Journal, the article must have a nexus to business law theory or pedagogy, broadly construed.

The acceptance rate remains at or below 25%. This means that for every article we accept, at least three are initially turned down (although some are given the opportunity to resubmit).

You can submit by emailing the Managing Editor a complete copy and a blind copy, with Bluebook formatted footnotes, in accordance with the instructions and contact information found on our website.

What details can you provide about the review process and editing process?

Upon submission, you will receive a response, typically within a few days, confirming receipt of your article. From there, soon after, the article is typically sent to Staff Editors for peer review.   To the extent possible, we match article content with the expertise of our Staff Editors to ensure a fair and professional review. We also find that the feedback provided by Staff Editors to authors is most helpful when they have expertise related to the article.   Once appropriate and available Staff Editors are identified, they then review the article and return their recommendations to the Managing Editor. The Managing Editor then notifies the author of the publication decision. If an article is accepted, then the author is introduced to one of our Articles Editors for finalization of the essay.

We strive to inform authors of publication decisions within eight (8) weeks of submission.

In your opinion, what are the advantages and disadvantages of publishing with the Atlantic Law Journal?

In my opinion, there are many advantages to publishing with the Atlantic Law Journal.

The first advantage is that (unlike many law reviews today), if you submit to the Atlantic Law Journal, someone will respond to you when you submit it. Yet, not only will you receive a response, but you will also have your article read and reviewed by professional academics in the field of business law (who are also lawyers). We do not utilize law students in our publication process, and all our editors are professional academics.

Second, the Atlantic Law Journal is listed in Cabell’s, ranked by Washington and Lee, and available on Westlaw. This means that articles appear not only in our volumes linked on our website, but are also indexed, searchable, and fully archived on Westlaw. This produces the potential for a broad impact and increased author visibility.

Third, while there appears to be a trend towards some law reviews accepting shorter articles, the Atlantic Law Journal already accepts shorter pieces (circa 7500 words). Let’s face it, sometimes there’s just not 50,000 words to say about certain topics. If you have a shorter piece that might not be long enough for a law review, the Atlantic Law Journal may be interested in it.

Fourth, unlike many law reviews, the Atlantic Law Journal is interested in articles, not only as to theoretical and scholastic topics, but also topics related to business law pedagogy. If you’ve tried something new in the classroom, had good results, and desire to share it with others, the Atlantic Law Journal may be interested. Our primary readership includes business law professors, who are always looking for new and innovative pedagogical techniques. We also welcome scholarly and theoretical articles, and try to include a mix of both scholarly and pedagogical articles in each edition.

Finally, all articles are double, blind peer reviewed. If your article is not accepted, we endeavor to provide high quality feedback that will allow you to improve your article as you continue your work on it. Our blind review is a genuine process. As Managing Editor of the journal, I am committed to ensuring the journal’s integrity by sanitizing all submissions (removing all meta-data) prior to sending the articles for review.

For more on the MAALSB and the Atlantic Law Journal, see our website.

  • Dr. Keith William Diener

                                                                                                                               

March 17, 2017 in Business Associations, Business School, Corporations, Haskell Murray, Research/Scholarhip, Writing | Permalink | Comments (1)

Thursday, March 16, 2017

William W. Bratton on "The Separation of Corporate Law and Social Welfare"

William W. Bratton has posted "The Separation of Corporate Law and Social Welfare" on SSRN. You can download the paper here. Here is the abstract:

A half century ago, corporate legal theory pursued an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. That vision was challenged on the ground during the 1980s, when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers. By 1990, it seemed like the institutions had won. But a different picture has emerged as the years have gone by. It is now clear that the market side really won the battle of the 1980s, succeeding in entering a wedge between corporate law and social welfare. The distance between the welfarist enterprise of a half century ago and the concerns that motivate today’s corporate legal theory has been widening ever since. This Essay examines the widening gulf. It compares the vision of the corporation and of the role it plays in society that prevailed during the immediate post-war era, before the fulcrum years of the 1980s, with the very different vision we have today, and traces the path we took from there to here. It will close with a brief prediction regarding corporate law’s future.

March 16, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Wednesday, March 15, 2017

Key governance issues for nonprofits

I'm too busy to blog today because I am preparing a training presentation on governance duties for nonprofits. The audience will consist of high level staff, not board members. I have served on many nonprofits and have advised others but I would be interested in your thoughts. Do you teach nonprofit law? Do you sit on nonprofits? What issues do you think nonprofit board members and staffer should know? Among other things, I plan to focus on fiduciary duties, maintaining 501(c)(3) exemption status, agency issues, the implications of Sarbanes-Oxley, conflicts of interest, document retention, code of ethics/whistleblower (to comport with 990),why nonprofits get sued, compensation issues, lobbying, insurance and indemnification, the role of different committees (particularly the audit committee), how to take good minutes, etc. I plan to use hypotheticals to help make the points stick. If you can think of other matters for my 3 hour module or some good case studies, please comment below or inbox me at mnarine@stu.edu. 

March 15, 2017 in Compliance, Corporate Governance, Nonprofits | Permalink | Comments (2)

Tuesday, March 14, 2017

Perpetuating the Hot Mess of LLC Veil Piercing Law

A new case, out just yesterday from the Southern District of Ohio, makes a mess of LLC veil piercing law. It appears that the legal basis put forth by the court in granting a motion to dismiss a veil piercing claim was probably right, but the statement of veil piercing law was not quite there.  

The case is ACKISON SURVEYING, LLC, Plaintiff, v. FOCUS FIBER SOLUTIONS, LLC, et al., Defendants., No. 2:15-CV-2044, 2017 WL 958620, at *1 (S.D. Ohio Mar. 13, 2017).  Here are the parties: the defendant is FTE Networks, Inc. (FTE), which filed a motion to dismiss claiming a failure to state a claim. FTE is the parent company of another defendant, Focus Fiber Solutions, LLC (Focus). The plaintiff, Ackison Surveying, LLC (Ackison) filed  a number of claims against Focus, added an alter ego/veil piercing claim against FTE. Thus, Ackison is, among other things, seeking to pierce the veil of an LLC (Focus). Focus appears to be a Pennsylvania LLC, based on a search here.

Pennsylvania law provides the liability cannot be imposed on a member of an LLC for failing to observe formalities. The law states: 

The failure of a limited liability partnership, limited partnership, limited liability limited partnership, electing partnership or limited liability company to observe formalities relating to the exercise of its powers or management of its activities and affairs is not a ground for imposing liability on a partner, member or manager of the entity for a debt, obligation or other liability of the entity.
15 Pa. Stat. and Consol. Stat. § 8106 (2017). 
 
However, the S.D. Ohio court states that a threshold question of whether an LLC's veil can be pierced includes an assessment of the following factors: 
(1) grossly inadequate capitalization,
(2) failure to observe corporate formalities,
(3) insolvency of the debtor corporation at the time the debt is incurred,
(4) [the parent] holding [itself] out as personally liable for certain corporate obligations,
(5) diversion of funds or other property of the company property [ ],
(6) absence of corporate records, and (7) the fact that the corporation was a mere facade for the operations of the [parent company].
ACKISON SURVEYING, LLC, Plaintiff, v. FOCUS FIBER SOLUTIONS, LLC, et al., Defendants., No. 2:15-CV-2044, 2017 WL 958620, at *3 (S.D. Ohio Mar. 13, 2017) (alterations in original). 
 
The opinion ultimately find that the complaint made only legal conclusions and failed to provide any facts to support the allegations of the LLC as an alter ego of its parent corporation, and further determined that a proposed amended claim was equally lacking.  As such, the court dismissed FTE from the case.  This conclusion appears correct, but it still suggests that, in another case, one could support a veil piercing claim against an LLC by showing that the LLC's "failure to observe corporate formalities," formalities it may have no legal obligation to follow.  
 
This remains my crusade. When courts get cases like this, they should (at a minimum) provide a clear veil piercing law for LLCs that accounts for the differences between LLCs and corporations.  I keep saying it, again and again, and I will keep beating the drum. If state law allows for LLC veil piercing, then fine, but get the law right. LLCs and corporations provide limited liability for their residual interest holders, but they are not the same entity. You Can’t Pierce the Corporate Veil of an LLC Because It Doesn't Have One, but the LLC does have a limited liability veil.  In cases such as these, courts should take the time make the law clearer so that future courts can stop applying the incorrect standards.  And lawyers bringing such cases could help, too, by framing their claims and responses appropriately.  Please.  

March 14, 2017 in Corporations, Joshua P. Fershee, Litigation, LLCs | Permalink | Comments (5)

Monday, March 13, 2017

More on the U.S. Private and Public Equity Markets

As you may know, I have had an abiding curiosity about the line between the U.S  private and public securities markets in large part because of my work on crowdfunding.  Almost three years ago, I published a post on the topic here at the BLPB.  I posted on the referenced paper here.  That paper recently was republished in a slightly updated form by The Texas Journal of Business Law,  the official publication of the Business Law Section of the State Bar of Texas (available here).

As a result of this work, my interest was (perhaps unsurprisingly) piqued by a this paper by Amy and Bert Westbrook.  Enticingly titled "Unicorns, Guardians, and the Concentration of the U.S. Equity Markets," the article documents concentrations in both private and public equity markets in the United States and makes a number of interesting observations.  I was especially intrigued by the article's identification of a potential resulting peril of this market concentration: the aggregation of both corporate management and ownership in the hands of the few.

[W]ealth has concentrated and private equity markets have emerged that serve as alternatives to the public equity market. At the same time, the public equity market has become dominated by highly concentrated shareholding, in the form of institutional investors, especially index funds, and the occasional founder. Both developments have resulted in concentrations of capital that mirror the concentration of management that concerned Berle and Means. For Berle and Means, the concern was concentrated management and dispersed ownership. The concern now is that both management and ownership are concentrated in the hands of very few people.

Very interesting . . . .  And this is only one of the conclusions that the authors draw.  As a foundation for its assertions, the article documents the concentration of ownership in both private and public markets, tying current participation in both markets back to salient economic and social data and trends.  The full abstract from SSRN is set forth below, for your convenience.

Developments in the private and public equity markets are changing the role equity investment plays in the United States, and therefore what "stock market" means as a matter of political economy. During the 20th century, securities and other laws did much to tame the "animal spirits" of industrial capitalism, epitomized by the "Robber Barons." In order to raise large sums, businesses offered stock to the public, thereby subjecting themselves to the securities laws. Compliance required not only disclosure, transparency, but more subtly, that the firms themselves undergo a process of Weberian rationalization. A relatively broad middle class was comfortable investing in such corporations, and the governance of firms and thus much of the economy was understood to be answerable to this class. Citizens understood such arrangements as theirs, part of "the American way."

In recent years, in conjunction with rising inequality in the United States, there has been a decisive shift from broad-based ownership of firms to much more concentrated forms of ownership in both private and public markets. Private equity markets are concentrated by legal definition: relatively few people are qualified to participate directly. Yet private equity has become the preferred method of capital formation, epitomized by "unicorns," firms valued at over $1 billion without being publicly traded. Public equity markets are dominated by funds with trillions of dollars under management, and small staffs, who are in effect "guardians" for the portfolios that ensure long-term stability for individuals and institutions, notably through retirement and endowments. The governance of the U.S. economy has to a surprising degree become a matter of grace: the nation now relies on a small elite to make good decisions on its behalf about the allocation of capital, the governance of firms, and the preservation of portfolio value. This consolidation of ownership rivals that of the late 19th century, and may challenge the law to address the equity markets in new ways.

I think you'll enjoy this one.  At the very least, it's a great read for those of you who, like me, are interested in analyses of the U.S securities markets.  But perhaps more broadly, with contentious changes in federal business regulation in the offing under the current administration in Washington, this work should contribute meaningfully to the debate.

March 13, 2017 in Corporations, Current Affairs, Joan Heminway, Private Equity, Securities Regulation | Permalink | Comments (0)

Sunday, March 12, 2017

ICYMI: Tweets From the Week (March 12, 2017)

March 12, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Saturday, March 11, 2017

Trading Places: A True Story

Trading

A couple of days ago, Marcia put out a call for business movie/TV recommendations.  A perennial favorite on such lists is the 1983 classic, Trading Places.  That movie is about two brothers who make a bet to see whether they can pluck a man off the street and - by providing him with the proper environment - turn him into a successful commodities trader.  Its stature is such that a real-life statutory amendment, intended to plug the regulatory loophole exploited by the film's characters, is colloquially known as the "Eddie Murphy rule."  The CFTC first exercised its authority under the new rule in 2015.

Well, apparently the movie was just as inspiring to business aficionados in 1983 as it remains today.  After seeing the film, two prominent commodities traders of the era, Richard Dennis and William Eckhardt, decided to reenact the brothers' experiment.  (Except, rather than kidnap a homeless criminal and then frame one of their own employees for dealing PCP, Dennis just took out an ad in the newspaper).  Dennis selected people with a certain affinity for numbers and probability, but with no formal education in commodities, and trained them to trade.  The experiment panned out:  most of the participants (dubbed Turtles, for reasons that remain the subject of myth) not only generated extraordinary profits for Dennis and themselves, but eventually left for successful Wall Street careers.

The tale is recounted in the book The Complete Turtle Trader, and in this Bloomberg podcast.  For the podcast hosts, the unbelievable part of the story is how the methods taught to the Turtles are apparently still in use today - and remain profitable, for anyone disciplined enough to stick to them.  I'll add that I also find it kind of unbelievable that anyone decided to risk millions of their own dollars to reenact the events of Trading Places, but, to be fair, it is a very good movie.

March 11, 2017 in Ann Lipton | Permalink | Comments (0)

Friday, March 10, 2017

Assistant Professor of Legal Studies Position (Tenure-track) at University of Louisiana-Lafayette

Details about a legal studies assistant professor position at University of Louisiana-Lafayette are available here and below the break.  

Continue reading

March 10, 2017 in Business School, Haskell Murray, Jobs | Permalink | Comments (0)

The FairShares Model

On of the many interesting things discussed during the social enterprise law workshop at Notre Dame Law School was the "FairShares Model." Nina Boeger (University of Bristol-UK) brought the model to the group's attention, and the model was new news to me.

The FairShares Model was "created during a research programme on democratising charities, co-operatives and social enterprises involving academics at Sheffield Hallam University and Manchester Metropolitan University in the UK."

The FairShares Model cites the "Social Enterprise Europe Ltd" when noting that social enterprises "aim to generate sustainable sources of income, but measure their success through:

  • Specifying their purpose(s) and evaluating the impact(s) of their trading activities;

  • Conducting ethical reviews of their product/service choices and production/consumption practices;

  • Promoting socialized and democratic ownership, governance and management."

To address theses aims, the FairShares Model offers social audits and suggests the issuing some combination of (1) founder shares, (2) labour shares, (3) investor shares, (4) user shares.

While I agree that significant corporate governance changes should be considered, at first glance this model seems a bit unwieldy if all four types of shares are issued. Still, I am interested in learning more. 

March 10, 2017 in Business Associations, Corporate Governance, Corporations, CSR, Entrepreneurship, Haskell Murray, Social Enterprise | Permalink | Comments (0)

Thursday, March 9, 2017

Virginia E. Harper Ho on "The SEC's Sustainability Imperative"

Virginia E. Harper Ho has posted "The SEC's Sustainability Imperative" on SSRN.  You can download the paper here.  Here is the abstract:

In 2016, the Securities and Exchange Commission (SEC) for the first time sought public comment on whether financial disclosure reform should address indicators of firms’ sustainability risks and practices. Securities disclosure reform now appears poised to take a deregulatory turn, and innovations at the intersection of sustainability and finance appear unlikely in the face of new policy priorities. Whether the SEC should take any steps to improve how sustainability-related information is disclosed to investors is also deeply contested.

This Article argues that the SEC nonetheless faces a sustainability imperative, first to address this issue in the near term as part of its ongoing review of the reporting framework for financial disclosure, and second, to promote disclosure of material sustainability information within financial reports in furtherance of its core statutory mandate. This conclusion rests on evidence that the current state of sustainability disclosure is inadequate for investment analysis and that these deficiencies are largely problems of comparability and quality, which cannot readily be addressed by private ordering, nor by deference to policymaking at the state level. This Article highlights the costs of agency inaction that have been largely ignored in the debate over the future of financial reporting and concludes by weighing potential avenues for disclosure reform and their alternatives.

March 9, 2017 in CSR, Financial Markets, Securities Regulation, Stefan J. Padfield | Permalink | Comments (0)

Wednesday, March 8, 2017

Best Binge-worthy Movies on Business

Every year, I offer my students the option of writing an extra credit paper on what Hollywood gets wrong about business. They can also apply what they've learned to a popular movie, television show, or book (the Godfather, Game of Thrones, and Sex and the City have provided some of the more interesting analogies). Often I provide a list of TV shows or movies that they can consider. Today, I’m asking my co-bloggers and our readers for their binge-worthy movie or TV choices. Some movie lists for business students are here, here, here, and here but I welcome your suggestions. For those of you who aren’t in my class and just want a break from the news, these lists may come in handy.

March 8, 2017 in Corporations, Current Affairs, Film, Marcia Narine Weldon | Permalink | Comments (6)

Tuesday, March 7, 2017

Paper: Freedom of Corporate Purpose

George Mocsary has an interesting paper that is officially in print. He makes some great points, but I think it undervalues the role of the business judgment rule. More on that later. I disagee, at least on the margins, but it's worth a look.

 

Freedom of Corporate Purpose

77 PagesPosted: 13 Apr 2016Last revised: 2 Feb 2017

George A. Mocsary 

Southern Illinois University at Carbondale - School of Law

Date Written: 2017

Abstract

Every few decades, there erupt political and academic debates over the proper nature and purpose of the corporation. It is black letter law, according to most scholars, that corporations exist to maximize shareholder wealth. Others maintain that the corporation should exist for the benefit of multiple constituencies, regardless of what current black letter law may say. The current discourse of corporate purpose, however, is incomplete and misleading. The disarray has resulted from insufficient reliance on historical context in (1) analyzing the firm under modern theories of corporate governance, and (2) interpreting the “purpose” language in corporate charters and corporation-law statutes.

Modern conceptions of corporate governance, and by extension, corporate purpose, have failed to account for the historical evolution of the firm. Significantly, they characterize the corporation along too few dimensions, typically treating the firm as merely, and exclusively, a contract- or property-based entity; and they neglect to treat the later stage corporation as a historical entity that inherits characteristics and restrictions, including its purpose, from the time of its founding. 

Corporations are a triality of property, contractual, and associational rights. Firms can simultaneously and independently be described along each dimension. The triality of rights should entitle shareholders to form general corporations to pursue the ends of their choosing — shareholder wealth maximization or otherwise. Focusing on one aspect of the firm at the expense of the other two, however, obscures the central place of shareholder ends in the corporation. At its inception, the corporation is nearly indistinguishable from its shareholders, who possess the special talents or resources around which the enterprise is started. They possess all the property, financial, and control sticks in the corporate bundle of rights. They associate via the corporate form to better achieve some end than they could without it. Shareholders necessarily give up ever more control as the firm grows. But even at later stages in a firm’s life, shareholders retain enough rights to entitle them to have their corporations run in pursuit of the purposes they established at the firm’s founding (or later modified via the proper procedures).

This Article distinguishes two understandings of the corporate “purpose” language that is a statutorily required component of every corporate charter. The first is what the Article terms the corporation’s “tactical,” or operating, purpose. A corporation engages in its operations as it pursues its “strategic” purpose. The strategic purpose is the telos of the corporation or its board of directors. Shareholder wealth maximization is the archetypical strategic purpose, and the one most naturally derived from the corporate bundle of rights.

The Article addresses the assertion that corporate law does not, at least by default, require directors to maximize shareholder wealth, and concludes that this claim is indefensible when viewed in proper context. This fundamental stockholder right established, the Article proposes expanding existing law to allow stockholders to charter corporations for any lawful strategic purpose, given sufficient notice to potential mid-stream shareholders. It thus argues for a clarification of the marked uncertainty in corporate law as to whether nonwealth corporate ends are cognizable. Corporate law provides the pieces to maximize the social benefit enabled by the corporate form. This Article offers a flexible yet simple way to join those pieces together by permitting, but not requiring, stockholders to depart from the wealth maximization norm. 

 

Keywords: corporate governance,corporate law,shareholder wealth maximization,corporate purpose,shareholder primacy,director primacy,team production

 

Suggested Citation

March 7, 2017 | Permalink | Comments (0)