Business Law Prof Blog

Judge Fight

Judges Estelle and Randolph of the DC Circuit issued an opinion refused to accept an amicus brief filed by seven former federal judges is the hot button Guantanamo detainee case.    Why? The Judges violated an ethical rule that prohibits the use of the title of "Judge" in court by former judges.  This is enough to chuckle. But it gets worse.  Reporters interviewing the spurned judges collected a variety of hilarious quotes on personal spats.  Judges treasure their reputations for being above reproach; this, taken to extreme (as is done by some who filed the brief) approaches arrogance and moral superiority.  So such a rebuff really stings.  Several of the rebuffed Judges responded in pique before they came to their senses and admitted a technical mistake.  Judge Mikva, for example, said that the sitting judges are just made because he stopped them (when he was Chief Judge on the court) from taking personal junkets to conferences.  Other comments also spilled out. 

I love it when the veil lifts on the judiciary occasionally. Judges are human and not the best of the humans to boot.  We are fortunate to have a judicial system that can operate successfully with average folks on the bench, doing average things.

There was a dissent by Judge Rogers who stated that Judges acting on their own behalf, as opposed to representing other clients, could use the title.  This brings to mind another use of the well- worn "a person who is her own lawyer has a fool for a client" saying.

Steve Jobs and Options Back Dating

Apple Computer has a problem.  The company's founder and star, Steve Jobs, may have participated in back-dating executive stock options.  The back-dating scandals are past history, as a change in the timing of disclosure of executive stock options under SOX in 2002 has take out the timing slack that made back-dating possible.  The task? How to keep Jobs in place at Apple.  The solution: an internal investigation, run by outside directors who are notable public figures (Vice President Al Gore is one of the three), that issues a statement with three claims 1) problems are corrected 2) the panel has complete confidence in Steve Jobs and 3) Jobs did not personally benefit from the back-dating.  A fourth claim is tactfully and skillfully noted but not highlighted -- we have fired those primarily responsible for the misdeeds (we have turned out the scapegoats).  The third claim is the problem.  First, It appears that Jobs still holds stock received in exchange for a cancellation of the tainted options.  He does not hold the options but he still holds their derivatives.  Second, the third claim acknowledges by omission that Jobs may have approved explicitly back-dating of executive options for others.  What is interesting is what Al Gore, et al. could not do -- the right thing.  The third claim should have been 3) Jobs apologizes for an error in judgment, has fully revealed his participation, recognizes it was the wrong thing to do, and has given back all the fruits of the grants and a substantial portion of his other compensation for those years as well as a penalty and asked the company to rescind any illegal grants to others.  Then the report could have concluded that the company is better off with Jobs still on the payroll.  If the panel had done this -- what was right-- the panel knew that would have encouraged the Justice Department and private plaintiff's attorneys to sue Jobs (and the company).  The threat of litigation makes the full private accounting problematic.  So the panel had to issue a report that minimized the threat of subsequent litigation -- spin the report.  The spin is what ordinary people do not understand; lawyers and sophisticated executives do.  This presents a monumental quandary: fess up completely and the company and its executives are maximally exposed in the subsequent litigation.  This loss of available defenses to the litigation, in essence, throwing oneself on the mercy of the court, is unpalatable to companies and their senior executives.  A potential solution to this mess is for the legal system to formalize some benefits for those who are honest with the capital markets.  We seem to have done so on the criminal side (criminal proceedings are less likely and penalties reduced) and need to do so on the civil side (both in administrative proceedings and in private actions).  One can argue that administrative proceedings are so muted (but it should be formalized) and we are left only with private litigation.  A full internal investigation followed by an accurate summary and effective internal penalties should provide an effective affirmative defense in some form to private actions.      

SEC Goof

The Friday before Christmas the SEC popped out a new rule, effective immediately (which is very, very unusual), even though the public comment period will run another 30 days.  The rule provides a new calculation for the valuation of executive stock options in the SEC's new rule forcing the disclosure of the total compensation of the CEO, the CFO and the top three highest paid executives.  When the disclosure rule was proposed, the SEC deviated from the calculation of value used in the new accounting rules on expensing options.  The SEC thought it had good reason to do so but introduced complications that main street felt overvalued the options in the disclosure rule.  The revision makes sense, better syncing up the disclosure rule to the accounting rule.  At issue however is the SEC's current tendency to out- think itself, get too cute, and promulgate too much detail in its rules.  This micro-management approach is risky and can often backfire, as it did here.