Business Law Prof Blog

Bschool.com Names BLPB One of 40 Best Corporate Law Blogs

BSchool.com describes itself as "the leading online resource for MBA programs and top online business schools."  See who else is on the list here.

SJP

Dean Search Announced: University of North Dakota School of Law

The University of North Dakota School of Law just announced its search for our next dean. Obviosuly, I'm biased, but I think it's a great place to work and live. We have a small faculty and a small student body, and we all tend to know each other (and that's usually a good thing).  We're the only law school in the state, a finanically healthy state I might add, and that comes with great responsibility and great opporunity.  If you're interested, please take a closer look at being a part of legal education in the Northern Plains.    

Dean of the School of Law: University Of North Dakota 

Location: Grand Forks, ND  Apply Now

The University of North Dakota School of Law seeks an exceptional leader as its next Dean. The new Dean will have the opportunity to lead and enhance traditions of excellence and public service that have characterized the School of Law since its founding in 1899. As the only law school in North Dakota, the School of Law and its Dean enjoy a unique relationship with the North Dakota Bar and judiciary. The Dean will have the opportunity to lead the School of Law to the next level of excellence.

The Dean is the chief academic, fiscal, and administrative officer for the School of Law with responsibility for academic direction, faculty and staff development, fiscal and personnel management, student academic affairs and alumni relations. Enhancing relationships with external constituencies, including the State and Federal judicial system, the North Dakota Legislative Assembly and the state’s lawyers shall be a significant objective for the Dean. The School of Law has 240 students and 17 full-time faculty.

The successful candidate should possess demonstrated administrative ability, a collaborative leadership style, a commitment to diversity, effective communication skills and an ability to develop trust and good working relationships within the School of Law and with the University and the School’s external constituencies. Candidates with prior law school teaching, administrative and scholarly experience are preferred.

Candidates should submit a letter describing how their background, skills and education match the needs of the School of Law, a current résumé or curriculum vitae, and the names and contact information of three professional references. Applications should be submitted electronically (Adobe PDF or MS Word format) to: UNDLaw@academic-search.com. Applications should be received by April 15, 2011. For a more complete description of the position, see www.academic-search.com/search.html.

For further information about the University of North Dakota and the School of Law, see www.law.und.edu.

Assisting in this search is: Peter H. Ruger, Senior Consultant Academic Search, Inc. phr@academic-search.com 314-537-1448

The University of North Dakota is an affirmative action, equal opportunity employer and actively seeks applications from women and minority candidates.

--JPF

Veil-Piercing Redux

My previous post on piercing the corporate veil has received some attention here  and here.

Steve Bainbridge argues that veil piercing should be eliminated.  See his full paper on this subject here.

I’m sympathetic to this view, especially with respect to the claims of consensual creditors.  But I think that claimants who have not chosen to deal with the corporation (many tort claimants) raise different issues.  Contractual self-protection is not an option for those people, and the argument for having them bear the cost of limited liability is weak.  In that context, if the company is undercapitalized, piercing makes sense to me.  Even in the contractual setting, veil-piercing might be justifiable where there have been post-contract withdrawals of funds from the corporation, but most of those situations could be covered by fraudulent conveyance laws.

The problem is that veil-piercing is not limited to cases where plaintiffs can’t protect themselves against unwanted corporate externalities.  Absent a rational, consistent theory of when to pierce the veil, the doctrine may do more harm than good and Bainbridge’s argument makes sense.

Jeff Lipshaw admits that veil-piercing cases are “idiosyncratic”, but says they involve “some outrageous conduct that makes the decision, in retrospect, not particularly surprising.”  Lipshaw seems to think that we shouldn’t expect deductive rationality from the cases.

I’m afraid I can’t accept either Lipshaw’s factual premise or his conclusion.  I have seen a number of decisions piercing the corporate veil that, to me, seem surprising—or where I think a decision not to pierce would make just as much, if not more sense, as a matter of policy.  And if the results in the veil-piercing cases are uncertain, unpredictable, and can’t be explained by the courts ex post on the basis of any coherent principles, then I don’t know what it is, but it isn’t my vision of the rule of law.

-Steve Bradford

Random Thoughts

First, let me say that I also consider it to be very good news that Prof. Bradford is joining us on a full time basis.  I'm not sure when the legal blog trading deadline is, but I have to believe that this is one of the top acquisitions of the season.

Second, when I last reported back from the recent Chapman symposium on Dodd-Frank, the video of the panel I participated in was not yet up.  However, you can now view it here.  Obviously, I encourage you to view all the panels, and all of the particular panel I participated in--but if you only have 20 minutes, I get introduced shortly after the 6 minute mark (as always: Why blog, if not to shamelessly self-promote?).

Third, Keith Bishop (who actually was the moderator of the Chapman panel I link to above) recently posted a short piece on the possibly interesting implications of California having failed to insert a reserve clause in its LLC statute.  My question is: Was this a conscious decision made to drive home the point that the LLC statute is literally nothing more than default rules, or did someone forget the lessons of Dartmouth College?

Finally, a couple of public service announcements (IMHO, must reads):  The New York Times reports that (1) New Hacking Tools Pose Bigger Threats to Wi-Fi Users, and (2) provides information on Security to Ward Off Crime on Phones.

SJP

 

Foreign Officials Under the FCPA

Over at FCPA Professor, Mike Koehler has posted a motion to dismiss in U.S. v. Stuart Carson, et al., as well as his declaration providing "a detailed and complete overview of the FCPA’s extensive legislative history on the 'foreign official' element." (Quite the impressive project.)

The Department of Justice has determined that, under the Foreign Corrupt Practices Act (FCPA), employees of state-owned or state-controlled entities are “foreign officials.”  As such, using this interpretation, if a defendant were found to have bribed an employee of a state-owned corporation, the defendant would have violated the FCPA.  Professor Koehler concludes that the DOJ’s interpretation "is contrary to the intent of Congress in enacting the FCPA."

I always find this state actor concept interesting and complex, although I tend to encounter it in other areas. (Thanks to my casebook authors for the following cases from Energy, Economics and the Environment, 3d edition.)

In my energy law course, I teach In re SEDCO, 543 F. Supp. 561 (S.D. Tex. 1982). In that case, Mexico's state-owned oil company, PEMEX, drilled the the exploratory IXTOC I well, which had a massive blow out. Texas-based plaintiffs sued because oil reached Texas beaches causing damage and requiring significant clean up.  The court found that PEMEX was immune from the action under the Foreign Soveriegn Immunities Act (FSIA) of 1976, 28 USC § 1602-1611.  FSIA excludes soveriegn immunity protection when a state actor is engaged in "commercial activity."  Because the well was drilled as part of Mexico's "long range planning and policy making process," the drilling was not the kind of activity Congress intended to exclude from the FSIA.  

Interestingly, in another PEMEX-related case, S. T. Tringali Co. v. The Tug PEMEX XV, 274 F. Supp. 227 (S.D. Tex 1967), the court found jurisdiction where a PEMEX tug and a shrimp boat collided.  The court detmerined that the

vessels are not entitled to the defense of sovereign immunity in the courts of the United States since they are not in the possession and ownership of a foreign sovereign, but are owned and operated by an independent corporation and its vessels were engaged in private commercial activity and are not engaged in a public or governmental function.

I wonder if a similar analysis and distiction should apply to the FCPA. That is, should the determination of whether an employee of a state-owned entity is a foreign offical turn on the employee's role and activities for the state-owned entity. 

On the margins, at least, it might be harder for a defendant to know whether he or she was dealing with a foreign official or not. It was already a murky area, though, so I'm not sure how much weight to give this concern.  

Here's one idea:  don't bribe anyone.  

--JPF

Barry and Hatfield on Takeovers

Jordan M. Barry and John William Hatfield have posted Pills and Partisans: Understanding Takeover Defenses on SSRN with the following abstract:

Corporate takeover defenses have long been a focal point of academic and popular attention. However, no consensus exists on such fundamental questions as why different corporations adopt varying levels of defenses and whether defenses benefit or harm target corporations' shareholders or society generally. Much of the disagreement surrounding takeover defenses stems from the lack of a fully developed formal analytical framework for considering their effects. Our Article presents several formal models built upon a common core of assumptions that together create such a theoretical framework. These models incorporate the reality that target corporate insiders have superior information about the target but are imperfect agents of its shareholders. They suggest that modern defenses enable target shareholders to extract value from acquirers by empowering corporate insiders, but that takeover defenses do not benefit society as a whole. They also suggest why corporations with different characteristics may choose to adopt varying levels of takeover defenses. Our findings have implications for the longstanding debate about who is best served by state-level control of corporate law and the desirability of increased federal involvement in corporate law.

-ECC

Good News (to me, at least)

My stint as a guest blogger on this blog is ending.  But the good news, at least for me, is that I have accepted an offer to join the blog on a permanent basis.  (I will leave it to the individual reader whether that's good news for anyone other than me.) I thank Stefan, Josh, and Eric for inviting me to join them, and I look forward to my continued association with the Business Law Prof blog.

-Steve Bradford

Veil-Piercing and Corporate Formalities

    My Business Associations class has been discussing piercing the corporate veil.  Every time I return to this material, I’m struck by how intellectually vacuous the doctrine in this area is.

    Some of the factors courts consider in piercing have an obvious policy tie to the question at issue: whether the corporation’s creditors should be able to recover from one or more of the shareholders.  Undercapitalization, for instance, can have an obvious effect on the corporation’s ability to pay creditors.  There’s an argument that consensual creditors should protect themselves from any undercapitalization that exists at the time the debt is incurred, but at least there’s a tie between undercapitalization and harm to the creditors.  The same thing can be said for transfers of funds from the corporation to the shareholder after the obligation is incurred.  The harm to the creditors is obvious and, in the case of post-obligation transfers, the self-protection argument is more difficult.

    The factor that doesn’t seem to make sense is failure to follow corporate formalities.  In most cases, you cannot establish a causal link between the failure to follow corporate formalities and the creditor’s loss.  The creditor’s position is no worse because, for instance, the corporation didn’t hold regular board meetings or keep minutes of those meetings. 

    I understand the penalty argument—if you want a corporation, you have to comply with the rules for operating one, or we will penalize you.  But it’s a very uneven penalty.  Successful corporations are never penalized, no matter how blatantly they fail to follow corporate formalities.  They are able to pay their bills, so veil-piercing isn’t usually an issue.  Only corporations that fail to follow corporate formalities and are not successful are penalized.

    I think the drafters of the Revised Uniform Limited Liability Company Act (2006) got it right.  The Act doesn’t exclude piercing entirely, but section 304(b) does provide that “The failure of a limited liability company to observe any particular formalities . . . is not a ground for imposing liability on the members or managers . . .”

-Steve Bradford

Thinking Like a Lawyer

My former colleague Michelle Harner has written an interesting paper entitled The Value of “Thinking Like a Lawyer.”  Michelle recognizes that the market for legal services is changing, but argues for the preservation of that unique set of analytical skills that those in the legal profession call thinking like a lawyer.

Here’s the abstract:
“The legal profession was hit particularly hard by the recent recession. Law firms laid off lawyers in record numbers, and law school graduates found few if any employment opportunities. Clients also started rethinking the terms of the lawyer-client relationship, at least in the larger law firm context. Some commentators suggest that these changes are indicative of things to come; that the legal profession is undergoing a long-overdue paradigm shift that will permanently change the nature of the legal profession. This Essay examines these developments through the lens of Larry Ribstein’s The Death of Big Law and Richard Susskind’s The End of Lawyers?: Rethinking the Nature of Legal Services. It compares and contrasts Ribstein’s and Susskind’s analyses of the profession and assesses potential lessons for lawyers, clients, and legal educators. This Essay concludes by encouraging professionals to remain open to changes that improve efficiency and client service. It also stresses the value of preserving and promoting the hallmark of being a lawyer - that is, thinking like a lawyer.”

-Steve Bradford

CFTC Lacks Funding for Dodd-Frank Enforcement

The Hill reports that at a leading regulator likes Dodd-Frank, but lacks the funds to do much with it: 

"I think Congress did very well," said Gary Gensler, chairman of the Commodity Futures Trading Commission (CFTC). He was speaking at an event Friday exploring Dodd-Frank hosted by the George Washington University Law School and School of Business.

But he added the wry caveat that the increased funding for regulators implementing the law has yet to materialize.

"We could have got funding in there," he joked, adding that the CFTC, which is charged with regulating a derivatives market that is more than $300 trillion in size, is "sorely in need" of a larger budget and more resources.

It's hard to imagine that Chairman Gensler is wrong on this, and it's also hard to see how the funding need to implement Dood-Frank will be forthcoming as threats of a government shutdown loom large.

Chairman Gensler does seem to think Dodd-Frank can help the market in some ways (again thanks to The Hill):

"The Dodd-Frank Act includes essential reforms to...bring sunshine to the opaque swaps markets," he said in his remarks. "The more transparent a marketplace is, the more liquid it is for standardized instruments in the market and the more competitive it is as well, which lowers the costs for hedgers, borrowers and, ultimately, their customers."

Here's hoping that's true, and that all that sunshine comes nearly free of charge.   

--JPF

I'm Shocked -- Shocked I tell you ....

Apparently, an investment bank has "secretly and selfishly manipulated" a sales process in order to obtain "lucrative" additional fees.

A Delaware judge has delayed a shareholder vote on Del Monte Foods Co.'s planned $4 billion acquisition by a group of private equity firms .... In a ruling dated Monday [Feb. 14], Vice Chancellor J. Travis Laster blasted Del Monte's financial adviser, Barclays Capital, saying the investment bank misled Del Monte's board ....

You can read more here.

Writes Steven Davidoff:

This opinion raises the ghost of the storied Macmillan management buyout. In 1989, the Delaware Supreme Court halted the buyout of the book publisher Macmillan because its management had worked with K.K.R. to take the company private by manipulating the bidding process behind the board’s back. . . .  [W]hile Barclays’s actions appear egregious, this type of conduct has been under scrutiny for years. Investment banks too often try to steer takeover deals to private equity firms that can provide them additional fees.

Now watch this.

SJP