Wednesday, March 25, 2015
Today marks my return to blogging after a brief (3 weeks) respite, and what better way to be welcomed back than with news of a mega-merger?!? Today, Kraft Foods, a publicly traded company, and H. J.Heinz, owned by Warren Buffett's Berkshire Hathaway and Brazilian private equity firm 3G, signed a multi-billion dollar merger agreement to create what will become the third largest food company in North America.
Under the proposed merger Kraft shareholders will receive 49% of the stock in the newly merged company, plus a cash dividend of $16.50 per share, representing a reported 27% premium on Kraft's trading stock price as of Tuesday, March 24th which closed at around $61.33/share.
The stock market reacted positively to the news with Kraft stock opening around $81/share and climbing up to $87 and settling down in the low $80's (it was trading at $82/share around 2:00 pm). You can track the stock price here. The immediate bump in price casts some shadows on the Kraft stock premium agreed to in the deal.
Tuesday, February 24, 2015
On Monday the White House released a report on The Effects of Conflicted Investment Advise on Retirement Savings which highlights the unique constraints of many retirement investors. The current "suitable" investment advise standard leaves room for financial service provides to channel retirement investors into investments with higher fees paid by the investor but higher commissions earned by the professional. Higher fees paid on investments can reduce the return on savings an average of 12% over the life of the retirement account. In other words, paying less in fees could mean that retirement savings could last an average of an additional 5 years. This has major implications for individual financial stability as well as our national retirement policy, which is increasingly dependent upon self-directed retirement savings in the form of 401(k)s and IRAs.
To reduce the conflict of interest and lessen the likelihood that retirement investors will "select" higher-fee investment vehicles based on the self-interested advise of financial services providers, the White House is asking the Department of Labor to impose a fiduciary duty standard requiring the advise provided to be consistent with the best interests of the investor. This is such an intuitive position that many investors think that financial advisers and brokers are already subject to this requirement. The proposal would bring the legal reality and enforceable duty in line with the public perspective. This is not to say that there won't be significant opposition from financial services providers who argue that the industry is already highly regulated.
The announcement and the focus on both retirement investors and the impact of fees on retirement savings is of particular interest to me. I have written three law review articles on related topics.
- Citizen Shareholders and Modernizing the Agency Paradigm (2012) articulates the ways in which retirement investors (I call them Citizen Shareholders) are different from traditional corporate law shareholders;
- The Retirement Revolution (2013) describes how the fundamental shift in the retirement landscape imposed additional risks onto the retirement investors; and
- The Outside Investor (2014) explores how the intersection of corporate law and ERISA standards leave many retirement investors exposed to additional market risks rather than intuitive guess that these investors would be more protected.
Wednesday, February 18, 2015
My colleague at Georgia State, Cass Brewer, posted on SOCENT (social enterprise) Law, an update to his incredibly useful social enterprise map. On this blog and in other fora, I have discussed with many of you teaching BA whether you cover social enterprises and, if so, to what extent. This is a great resource if you do anything in the area.
How cool is this?
Wednesday, February 11, 2015
Only 23 women lead companies in the Standard & Poor’s 500-stock index. Yet at least a quarter of them have fallen into the cross hairs of activist investors.
The article references Patricia Sellers observations in Fortune last month regarding corporate raider Nelson Peltz and his targeted attacks on PepsiCo lead by Indra Nooyi and Mondelez International lead by CEO Irene Rosenfeld as well as his current demands on DuPont, with Ellen Kullman as chairman and CEO.
In the absence of correlating data about female CEO's and weaker company performance, the question lingers is there something besides performance that prompts the targeting of these companies? To explain the question the article references several studies that report perception differences in competence, risk and performance based solely on gender, with, women on the losing end of these perception biases.
As I think is a common tendency, I gravitate towards information that relates to what I am personally thinking about, experiencing or interested in at the moment. Earlier on this blog, I wrote about gender issues in the classroom. On my current reading list, is the book What Works for Women at Work written by Joan Williams and Rachel Dempsey, that (1) reviews the existing literature about pervasive gender bias, (2) articulates how unconscious bias influences outcomes (acknowledging that for the most part society has moved past explicit and overt gender discrimination), (3) identifies four patterns where these biases consistently emerge based in part on her interviews with 127 "successful" women, and (4) discusses how the workplace (meaning men and women) can move beyond the limitations of these implicit biases. Several colleagues and friends are reading this book along with me as well. And the best part: not everyone reading the book is (and not everyone should be) a women.
Wednesday, February 4, 2015
I am a list maker. I make daily to do lists, grocery lists, research plans, workout schedules (that quickly get jettisoned) and complicated child care matrices necessary in two-career families. How else am I supposed to remember and keep on my radar all of the things that I am supposed to be doing now, or doing when I have time, or things that I can't forget to do in the future? One area where I feel deficient is in planning my conference travel/attendance. It always feels either a little ad hoc (ohh I got an invitation and I never say no to those!) or a little out habit (once you have presented at a conference it is easier to be asked to participate in future panels). Rarely does it feel like a part of an intentional plan for the year where I set out to prioritize conference A or break into conference B.
Realizing that this year there are 3 corporate law events within 10 days of each other is seriously making me reconsider my approach. I need a conference list-- a way to plan for the coming year, prioritize opportunities and frankly, schedule grandparent visits (read: child care) when I need to travel for more than a night or two.
Below is my running list of annual or nearly annual events, but I know that I am missing big pieces of the conference puzzle. Please contribute in the comments so we can create a list of some standard corporate law events (great for new teachers, great for those looking to expand their research circles, etc.). Updated to reflect suggestions in comments & put in approximate order of timing.
- AALS Annual (and Mid-year) Meeting (January; call for papers and/or invited participation spring & summer)
- Society for the Advancement of Behavioral Economics "SABE" (January; call for papers summer/fall)
- C-LEAF Junior Faculty Workshop (Feb. 27-28, 2015, a call for papers in the summer)
- Law and Entrepreneurship Retreat (UGA, March 21, 2015, a call for papers was released late 2014)
- Tulane Corporate Law Institute (March 2015 workshop; paid attendance & invited participation)
- Institute of Law & Economic Policy (ILEP) symposium (in April, by invitation)
- Annual Transactional Clinical Conference (occurs annually; April 24, 2015; call for paper circulated fall 2014)
- Law and Society Association "LSA" (late May 2015; calls for papers & coordinated panel submissions and round tables Fall 2014)
- National Business Law Scholars ( June 2015; call for papers available Dec. 2014)
- Berle Center Symposium at Seattle University (schedule varies; invited papers & attendance)
- Emory Teaching Transactional Law & Skills Conference (every 2 years usually in summer; call for papers announced)
- American Law & Economics Association (May 15, 2015; call for papers late fall terminated January 2015)
- Southeastern Association of Law Schools "SEALS" (July/August 2015; call for papers in the fall & coordinated panel submissions; papers due in spring)
- Midwestern Law and Economics Association "MLEA" (usually in the fall; call for papers late summer)
- Canadian Law and Economics Association Annual Meeting (Toronto, Fall 2015, a call for papers in the spring)
- ABA LLC Institute (usually October conference; workshop attendance & invited participation)
- Conference on Empirical Legal Studies (Wash U, October 30-31, 2015, a call for papers in the late spring)
- Corporate and Securities Litigation Workshop (Boston University, early November, expect a call for papers in the spring)
- Henry G. Manne Programs at George Mason ( programs occur throughout the year; workshop attendance)
- Various Harvard Law Corporate Governance Round Tables (programs occur throughout the year; invited attendance/ participation)
Wednesday, January 28, 2015
Over the past few decades, officers have arguably become some of the most important individuals in the corporation. From the implosions of Enron and WorldCom, to the success of companies like Apple and Microsoft, to the Wall Street crisis that sunk the world into near global recession, corporate officers have played a role in each of these storylines and countless (albeit lesser known) others. In spite of the well-publicized scandals, officers continue to be given wide latitude to carry out their role of managing the day-to-day operations of their companies. The primary constraint on this power under state corporate law is the imposition of fiduciary obligations. Fiduciary duties thus play a vital role in checking the considerable power and authority of officers. Fiduciary duties will only affect officer behavior, however, if there is an effective enforcement scheme that holds officers accountable. This Article discusses how the development of corporate doctrine, coupled with the dynamic in today’s corporate management has created impediments and disincentives for the enforcement of officer fiduciary duties. In light of the problematic state of the current enforcement scheme, this Article evaluates possible changes that would alleviate deterrents in the enforcement process. This Article concludes that in order to regulate officer behavior with fiduciary duties, there must be a collective correction to the enforcement mechanisms in place for internal enforcers beginning with reevaluating stockholder derivative litigation burdens.
This is a great article for the arguments advanced and careful observations made. It also provides such a thorough and useful discussion of officers that I plan to add it to a seminar reading list. Professor Shaner's article also earned the top prize at the 2014 George Washington University C-LEAF Junior Faculty Workshop.
Megan Shaner at the University of Oklahoma College of Law first workshoped this paper at George Washington's CLEAF Junior Faculty Workshop last spring.
Wednesday, January 21, 2015
One week after the SEC levied the largest dark pool trading violation fine against USB, a group of nine banks (including Fidelity, JP Morgan, BlackRock, etc.) introduced a new dark pool platform, an independent venture called Luminex Trading & Analytics. Dark trading pools are linked to the role of high frequency trading and the notion that certain buyers and sellers should not jump the queue and shouldn't be the first to buy or sell in the face of a large order. The financial backers of Luminex were quoted in a Bloomberg article describing it as a platform "where the original purpose of dark pools, letting investors buy and sell shares without showing their hand to others, will go on without interference."
The announcement raises public scrutiny about dark pools, but among financial circles (like those at ZeroHedge, it is being touted as a smart self-regulatory move by the major mutual funds to prevent the money leach to HFT's, which some seeing as the beginning of the end for HFTs.
If you are looking for more resources on dark pools and HFTs-- there are two brand new SSRN postings on the subject:
- Chris Brummer's Disruptive Technology and Securities Regulation
- Andreas M. Fleckner, Regulating Trading Practices
Wednesday, January 7, 2015
I had very limited time at AALS this year (unfortunately) but I still walked away with some great ideas (and a chance to say hello to a few, but not enough, friendly faces). I am borrowing from many ideas shared in the panel cited below, as well as a few of my own. As many of you prepare to teach BA/Corporations for the spring (or making notes on how to do it next time), here are a few fun new resources to help illustrate common concepts:
- HBO's The Newsroom. A hostile takeover, negotiations with a white knight-- all sorts of corporate drama unfolded on HBO's Season 3 of The Newsroom. I couldn't find clips on youtube, but episode recaps (like this) are available and provide a good reference point/story line/hypo/exam problem for class.
- Related, for those of you who teach or encourage the use of Bloomberg services, the Bloomberg terminal was even featured prominently in the season.
- This American Life-- Wake Up Now Act 2 (Dec. 26, 2014). This brief radio segment/podcast tells the story of two investors trying to reduce the pay of a company CEO. The segment discusses board of director elections, board duties, board functions and set up some large questions about whether or not shareholders are the owners of the corporation and their profit maximization is the ultimate goal for a company. This could be followed with Lynn Stout's 2012 NYT Dealbook article proposing the opposite view.
- HBO's Silicon Valley. For all things tech, start up, entrepreneurship and basic corporate formation, clips (you will want to find something without all of the swears, I suspect) and episode recaps from this popular show illustrate concepts and connect with students. Again, great for discussion, hypos, and exam fact patterns.
- The Shark Tank!. I have to thank Christyne Vachon at UD for this idea. There are tons of clips on youtube and most offer the opportunity to talk about investors bringing different things to the table, how to apportion control, etc. Here is an episode involving patent issues. I think that I am going to open my experiential Unincorporated/Drafting class with a Shark Tank clip on Monday.
- Start Up Podcasts. These 30-minute episodes cover a wide range of topics. Here is one podcast on how to value a small business. At a minimum, I will post some of these to my course website this spring. (Thank you Andrew Haile at Elon for this recommendation.).
- Planet Money. The podcasts are a great resource, but what I love is the Planet Money Twitter page because it is a great way to digest daily news, current events and topical developments that may be incorporated into your class.
- Wall Street Journal--TWEETS. (that felt like an oxymoron to write). Aside from the obvious, I find the Twitter feed to be the most useful way to use/monitor the WSJ. I will admit it, I don't "read" it every day, but this is my proxy.
Special thanks to the participants in the Agency, Partnership & the Law's panel on Bringing Numbers into Basic and Advanced Business Associations Courses: How and Why to Teach Accounting, Finance, and Tax
Moderator: Jeffrey M. Lipshaw, Suffolk University Law School
Lawrence A. Cunningham, The George Washington University Law School
Andrew J. Haile, Elon University School of Law
Usha R. Rodrigues, University of Georgia School of Law
Christyne Vachon, University of North Dakota School of Law
Eric C. Chaffee, University of Toledo College of Law
Franklin A. Gevurtz, University of the Pacific, McGeorge School of Law
And Happy New Year BLPB Readers!
Wednesday, December 31, 2014
We are all familiar with a distinguishing features of investing in operating companies and investing in mutual funds: sale of stock in operating companies and redemption at NAV (net asset value) in mutual funds. An interesting article (Mutual Fund Liquidity and Fiduciary Conflicts of Interest)1 was recently brought to my attention which argues that the liquidity costs of the redemption model disadvantages long-term investors-- those investors who stay in the fund.
Redemption of mutual fund shares requires the fund to maintain liquidity (uninvested assets) in order to supply the NAV to any departing investor. The required liquidity extracts a small cost on the fund for each exit. This cost, small when evaluated for a single trade, becomes significant in the aggregate. Trading and liquidity cost estimates range from $10-17 billion annually, costs that are born exclusively by the investors who stay in the fund. This means that long-term investors, particularly those investors who are relatively locked into their mutual funds such as retirement investors (a group I refer to in my scholarship as Citizen Shareholders) are subsidizing the dominance of the exit strategy for other retail investors. This has deep implications for the arguments advanced by John Morley and Curtis Quinn in their 2010 article Taking Exit Rights Seriously,2 where they argue that exit is the dominant strategy over voting and litigation in mutual funds. If exit is the dominant strategy for mutual fund investors, and there is a cost associated with that exit, who should bear the cost? I have an essay forthcoming this spring that further addresses question of exit rights as they pertain to Citizen Shareholders.
One novel solution advanced by Sacks Equalization Model, Inc., is a patented algorithm that assigns a small liquidity cost to all selling investors and to all new investors to push the transaction cost on those investors engaging in the transaction, not the stable, long-term investors.
 Miles Livingston and David Rakowski, Mutual Fund Liquidity and Conflicts of Interest, Journal of Applied Finance, Vol. 23, No. 2, pp 95-103 (2013).
 John Morley & Quinn Curtis, Taking Exit Rights Seriously: Why Governance and Fee Litigation Don’t Work in Mutual Funds, 120 Yale L.J. 84 (2010).
Tuesday, December 16, 2014
Yale, Stanford, and Harvard Law Schools announce the 16th session of the Yale/Stanford/Harvard Junior Faculty Forum to be held at Harvard Law School on June 16-17, 2015 and seek submissions for its meeting. The request for submissions is available at this link: Download JFF final call for submissions.
Wednesday, November 26, 2014
This is the time of year when we craft exam questions and grading grids in anticipation of exams.
Aside from Teaching Law by Design (a fabulous resource that I recommend for all new teachers as a great continuing resource for even those grizzled from years in the trenches), I have used few formal resources to guide my exam writing and grading process. Fortunately, I work with creative, collaborative and generous colleagues who all shared lots of samples and tips when I first started writing exams. Before committing myself to my Corporations exam this year, I decided to see what is out there to guide exam construction and grading. Finding little that was useful on SSRN or Westlaw, I turned to a broader search, which brought me to a general test instruction guideline produced by Indiana University, aptly titled: How to Write Better Tests. It had the following information regarding essay exams that serve as a useful reminder about why we are so meticulous in constructing our grading rubrics and creating grading schemes that, to the greatest extent possible, reduce our individual biases.
Consider the limitations of the limitations of essay questions:
1. Because of the time required to answer each question, essay items sample less of the content.
2. They require a long time to read and score.
3. They are difficult to score objectively and reliably. Research shows that a number of factors can bias the scoring:
A) Different scores may be assigned by different readers or by the same reader at different times
B) A context effect may operate; an essay preceded by a top quality essay receives lower marks than when preceded by a poor quality essay.
C) The higher the essay is in the stack of papers, the higher the score assigned.
D) Papers that have strong answers to items appearing early in the test and weaker answers later will fare better than papers with the weaker answers appearing first.
To combat these common issues the guidelines recommend:
- anonymous grading (check)
- grading all responses to question 1 before moving on to question 2, and so on (check)
- reorganizing the order of exams between questions (check)
- deciding in advance how to handle ambiguous issues (check, thanks to my grading rubric)
- be on the alert for bluffing (CHECK!)
If anyone has found a particularly useful resource regarding exam construction and grading, please share in the comments. I am sure everyone would benefit.
Happy Thanksgiving BLPB readers!
Wednesday, November 19, 2014
In June 2014, the Supreme Court decided Fifth Third Bancorp v. Dudenhoeffer holding that fiduciaries of a retirement plan with required company stock holdings (an ESOP) are not entitled to any prudence presumption when deciding not to dispose of the plan’s employer stock. The presumption in question was referred to as the Moench presumption and had been adopted in several circuits. You may have heard of these cases as the stock drop cases, as in the company stock price crashed and the employee/investors sue the retirement plan fiduciaries for not selling the stock. The Supreme Court opinion didn’t throw open the courthouse doors for all jilted retirement investors, and limited recovery to complaints (1) alleging that the mispricing was based on something more than publically available information, and also (2) identifying an alternative action that the fiduciary could have taken without violating insider trading laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.
The Supreme Court in Fifth Third recognized the required interplay between ERISA and securities laws stating:
[W]here a complaint faults fiduciaries for failing to decide, based on negative inside information, to refrain from making additional stock purchases or for failing to publicly disclose that information so that the stock would no longer be overvalued, courts should consider the extent to which imposing an ERISA-based obligation either to refrain from making a planned trade or to disclose inside information to the public could conflict with the complex insider trading and corporate disclosure requirements set forth by the federal securities laws or with the objectives of those laws.
The Ninth Circuit decided Harris v. Amgen in October based upon the Fifth Third decision. In Harris, the plaintiffs’ claim alleged a breach of fiduciary duty based on the failure to stop buying additional stock in the ESOP based on non-public information. The Ninth Circuit found that plaintiffs alleged sufficient facts to withstand a motion to dismiss that defendant fiduciaries were aware (1) of non-public information, which would have affected the market price of the company stock and (2) the stock price was inflated. These same facts supported a simultaneously-filed securities class action case.
To understand the interplay between securities laws and ERISA fiduciary rules, as established in Fifth Third, one ERISA consulting firm observed that
The Ninth Circuit appeared to reach the conclusion that, if ‘regular investors’ can bring an action under the securities laws based on the failure to disclose material information, then ‘ERISA investors’ in an ERISA-covered plan may, based on the same facts, bring an action under ERISA:
"If the alleged misrepresentations and omissions, scienter, and resulting decline in share price ... were sufficient to state a claim that defendants violated their duties under [applicable federal securities laws], the alleged misrepresentations and omissions, scienter, and resulting decline in share price in this case are sufficient to state a claim that defendants violated their more stringent duty of care under ERISA."
The Harris opinion invokes a sort of chicken and egg problem. If the plan had dumped the stock it would have signaled to the market and pushed the share prices lower. In addressing this concern, however, the Ninth Circuit stated that:
Based on the allegations in the complaint, it is at least plausible that defendants could have removed the Amgen Stock Fund from the list of investment options available to the plans without causing undue harm to plan participants.
. . . The efficient market hypothesis ordinarily applied in stock fraud cases suggests that the ultimate decline in price would have been no more than the amount by which the price was artificially inflated. Further, once the Fund was removed as an investment option, plan participants would have been protected from making additional purchases of the Fund while the price of Amgen shares remained artificially inflated. Finally, the defendants' fiduciary obligation to remove the Fund as an investment option was triggered as soon as they knew or should have known that Amgen's share price was artificially inflated. That is, defendants began violating their fiduciary duties under ERISA by continuing to authorize purchases of Amgen shares at more or less the same time some of the defendants began violating the federal securities laws.
The argument, in part, is that if Amgen had stopped the ESOP stock purchases it would have signaled to the market regarding price inflation and perhaps prevented the basis for the securities fraud violations harm alleged in the separate suit.
For those who follow securities litigation, there is a potential for investors purchasing in an ESOP to have a secondary and perhaps superior claim for fiduciary duty violations based upon the same facts giving rise to company stock mispricing arising under securities laws.
This raises the question, as one ERISA consulting firm noted,
Are an issuer/plan fiduciary's disclosure obligations to participants greater than its disclosure obligations to mere shareholders? Isn't that letting the ERISA-disclosure tail wag the securities law-disclosure dog – will it not result in the announcement of market-moving material information to plan participants first, before it is announced to securities buyers-and-sellers generally?
I have long been interested in how what happens in the defined contribution (DC) context intersects with what we think of traditional corporate law and how, as the pool of DC investors grows, there will be an ever increasing influence of the DC investor in the corporate law arena.
Wednesday, October 22, 2014
Corporate Law Professors Comment on Proposed HHS Definition of "Eligible Organization" for Hobby Lobby Accommodation
In response to the Department of Health and Human Services' Proposed Regulation and Request for Comments regarding the definition of "eligible organization" (see earlier post here) at least two groups of law professors have weighed in on the issue.
The first comment letter, available here, was submitted by the U.C. Berkeley corporate law professors and encourages the Department to adopt a definition based upon the veil piercing theory. "We ... propose that for purposes of defining an “[W]e ... suggest that shareholders of a corporation should have to certify that they and the corporation have a unity in identity and interests, and therefore the corporation should be viewed as the shareholders’ alter ego." The comments argue that utilizing the veil-piercing theory avoids the consequences of a setting an arbitrary number of shareholders thus creating a rule that would be "seriously under-and-over-inclusive, capturing corporations that meet the numerical test but for which shareholders are not the alter egos of the corporation, as well as failing to capture corporations with a relatively large number of shareholders that are all united in their interests and are alter egos of one another."
The second comment letter on which I worked and was joined by some editors of this blog as signatories, is available here. This comment letter, signed by 43 corporate law professors, was produced through the coordinating efforts of the The Public Rights / Private Conscience Project at Columbia Law School headed by Katherine Franke, and the project's executive director, Kara Loewentheil. This letter too encourages the HHS to adopt an approach that requires an "identity of interests." These comments suggest a blueprint for establishing an identity of interest, namely a focus on "entities (1) with a limited number of equity holders/owners, (2) that demonstrate religious commitment, and (3) submit evidence of unanimous consent of equity holders to seek an accommodation on an annual basis." The comments provide additional criteria under each of these three elements to operationalize the holding in Hobby Lobby.
Wednesday, October 8, 2014
Alibaba dominated the September business press coverage with its record-breaking IPO last month, and news of its stock price, trading at a 30% premium, continues to dominate coverage. I have been using the headline-hogging IPO in my corporations class to discuss raising capital, which I am sure many of you are doing as well. Here are a few creative uses for the class-friendly headlines:
- I used coverage of the IPO and its short-lived halo effect on other tech IPO's as a companion to the E-bay stock spinning case (taught under director fiduciary duties).
As we move into securities next week,
- Students will examine Alibaba's registration statement as we look at section 11 liability.
- Students will review portions of a 2012 10b(5) lawsuit against Yahoo alleging that Yahoo! made materially false and misleading statements regarding its holdings in Alibaba.
Please add to the list of uses in the comments section if you have any new ideas or suggestions.
Wednesday, October 1, 2014
Yesterday, I shared with my faculty during our teaching conversations* my research and thinking on gender equality in the classroom. How do we handle gender in the classroom? My guess is that most of us teaching honestly strive to achieve and believe that we create a gender-neutral, or more accurately an equally-facilitative classroom environment. You can image the horror I felt when I received voluntary, anonymous student feedback last spring that said “you may not mean to or know you are doing this, but you treat men and women differently in class.” From whose perspective was this coming? How differently? And who gets the better treatment? I was baffled. As a female law professor, I was hoping that I got a pass on thinking critically about gender because I am female, right? Wrong.
This feedback launched my research into the area and a self-audit of the ways in which I may be explicitly treating students differently, implicitly reinforcing gender norms, and unintentionally creating a classroom environment that is different from my ideal.
Below are some observations and discoveries about my own behavior and a summary of some relevant research.
Tuesday, September 23, 2014
Citing to Hobby Lobby, a U.S. District Court Judge in Utah ruled that an individual may refuse to comply with a federal subpoena in a child labor investigation because naming church leaders would violate his religious freedoms protected under RFRA. The court found that complying with the subpoena failed the least restrictive means prong under RFRA. The full court opinion, Perez v. Paragon Contractors, Corp., 2:13CV00281-DS, 2014 WL 4628572 (D. Utah Sept. 11, 2014), is available here and a a brief news summary is available here.
Wednesday, September 17, 2014
Practitioners and academics alike should be interested in yesterday's announcement by that the SEC that it is bringing an insider trading enforcement action against a law firm IT employee for allegedly trading based on the firm's merger work for clients. The employee allegedly made over $300,000 in a several year scheme of trading based upon client information. The U.S. Attorney's Office filed related criminal charges against the employee.
Donna Nagy at Indiana University Maurer School of Law, in her article, Insider Trading and the Gradual Demise of Fiduciary Principles, explains the theory of liability which extends the insider trading scope to law firm employees:
Under the alternative “misappropriation” theory endorsed by the Court in United States v. O’Hagan, persons “outside” the issuing corporation can likewise violate Section 10(b) and Rule 10b-5. Such a violation occurs when a fiduciary personally profits from a securities transaction through undisclosed use of a principal’s material nonpublic information. Thus, as the Court explained, whereas the classical theory “premis[es] liability on a fiduciary relationship between company insider and purchaser or seller of the company’s stock, the misappropriation theory premises liability on a fiduciary-turned-trader’s deception of those who entrusted him with access to confidential information.”
The SEC, in its release cautioned that "Insider trading by employees of law firms and other professional organizations is an important enforcement focus for us."
Tuesday, September 2, 2014
Last week, news of the proposed Burger King & Tim Horton's merger fueled the already raging fire on corporate inversions as the Miami-based burger chain announced plans, through the merger, to possibly relocate to Canada. As I have written about on this blog, here and here and in the Huffington Post, inversions may offer US companies tax savings.
Stephen E. Shay, a professor of practice at Harvard Law School, provides a short article (12 pages) describing the tax issues in corporate inversions and possible regulatory fixes. This article is very helpful in taking the debate from the headlines into a more complex legal analysis illuminating the tax consequences and offering a better understanding of the legal remedies available. Worth the read.
Wednesday, August 27, 2014
Thanks for your informative post, Anne. I started drafting this post as a comment to yours, and then I realized it was its own post. [sigh]
It seems to me that the U.S. Department of HHS and any commentators must grapple with what has been a difficult, fact-based question in determining how to define “closely held” to effectuate the Supreme Court’s intent in as expressed in the Hobby Lobby opinion. That question? What "control" means in this context.
The Court said in the Hobby Lobby opinion: “The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.” More specifically, the Court notes that the Hahns (owners of shares in Conestoga) “control its board of directors and hold all of its voting shares” and notes that Hobby Lobby and Mardel “remain closely held, and David, Barbara, and their children retain exclusive control of both companies.” [Emphasis has been added by me in each quote.]
The definition of “control” primarily has been a question of fact in business law, making the task of defining it here somewhat difficult. Some questions and considerations to grapple with are set forth below the fold. I am sure that others can come up with more. I am posting these as a way of getting the collective juices flowing.
Tuesday, August 26, 2014
As I have pointed out in earlier posts on this blog, the June decision in Hobby Lobby failed to define closely-held business for purposes of the religious exemption. On August 22nd, the U.S. Department of Health and Human Services (HHS) issued proposed rules, open for comments for 60 days, that include a definition of closely-held under one of two approaches borrowed from state law definitions like with S corporations and from IRS regulations.
In common understanding, a closely held corporation – a term often used interchangeably with a “close” or “closed” corporation – is a corporation the stock of which is owned by a small number of persons and for which no active trading market exists. ....Under the first proposed approach, a qualifying closely held for-profit entity would be an entity where none of the ownership interests in the entity is publicly traded and where the entity has fewer than a specified number of shareholders or owners....
Under a second, alternative approach, a qualifying closely held entity would be a forprofit entity in which the ownership interests are not publicly traded, and in which a specified fraction of the ownership interest is concentrated in a limited and specified number of owners.
HHS invites comments on the proposed definitions, the preferred approach, and the threshold cut offs for ownership concentration or numbers of owners.
Importantly, and answering a question raised in several posts in the on line symposium at The Conglomerate, the proposed rules would require a valid corporate action, taken in accordance with state law, to assert that the owners' religious views form the basis of the entity's objection. HHS also invites comments "on whether to require documentation of the decision-making process and disclosure of the decision."