Monday, October 16, 2017

Blockchain-Based Token Sales, Initial Coin Offerings, and the Democratization of Public Capital Markets. Oh, My!

My UT Law colleague Jonathan Rohr has coauthored (with Aaron Wright) an important piece of scholarship on an of-the-moment topic--financial instrument offerings using distributed ledger technology.  Even more fun?  He and his co-author are interested in aspects of this topic at its intersection with the regulation of securities offerings.  Totally cool.

Here is the extended abstract.  I cannot wait to dig into this one.  Can you?  As of the time I authored this post, the article already had almost 700 downloads . . . .  Join the crowd!

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Blockchain-Based Token Sales, Initial Coin Offerings, and the Democratization of Public Capital Markets

Jonathan Rohr & Aaron Wright

Best known for their role in the creation of cryptocurrencies like bitcoin, blockchains are revolutionizing the way tech entrepreneurs are financing their business enterprises. In 2017 alone, over $2.2 billion has been raised through the sale of blockchain-based digital tokens in what some are calling initial coin offerings or “ICOs,” with some sales lasting mere seconds. In a token sale, organizers of a project sell digital tokens to members of the public to finance the development of future technology. An active secondary market for tokens has emerged, with tokens being bought and sold on cryptocurrency exchanges scattered across the globe, with often wild price fluctuations.

The recent explosion of token sales could mark the beginning of a broader shift in public capital markets—one similar to the shift in media distribution that started several decades ago. Blockchains drastically reduce the cost of exchanging value and enable anyone to transmit digitized assets around the globe in a highly trusted manner, stoking dreams of truly global capital markets that leverage the power of a blockchain and the Internet to facilitate capital formation.

The spectacular growth of tokens sales has caused some to argue that these sales simply serve as new tools for hucksters and unscrupulous charlatans to fleece consumers, raising the attention of regulators across the globe. A more careful analysis, however, reveals that blockchain-based tokens represent a wide variety of assets that take a variety of forms. Some are obvious investment vehicles and entitle their holders to economic rights like a share of any profits generated by the project. Others carry with them the right to use and govern the technology that is being developed with funds generated by the token sale and may represent the beginning of a new way to build and fund powerful technological platforms.

Lacking homogeneity, the status of tokens under U.S. securities laws is anything but clear. The test under which security status is assessed—the Howey test—has uncertain application to blockchain-based tokens, particularly those that entitle the holder to use a particular technological service, because they also present the possibility of making a profit by selling the token on a secondary market. Although the SEC recently issued a Report of Investigation in which it found that one type of token qualified as a security, confusion surrounds the boundaries between the types of tokens that will be deemed securities and those that will not.

Blockchain-based tokens exhibit disparate features and have characteristics that make current registration exemptions a poor fit for token sales. In addition to including requirements that do not fit squarely with blockchain-based systems, the transfer restrictions that apply to the most popular exemptions would have the perverse effect of restricting the ability of U.S. consumers to access a new generation of digital technology. The result is an uncertain regulatory environment in which token sellers do not have a sensible path to compliance.

In this Article, we argue that the SEC and Congress should provide token sellers and the exchanges that facilitate token sales with additional certainty. Specifically, we propose that the SEC provide guidance on how it will apply the Howey test to digital tokens, particularly those that mix aspects of consumption and use with the potential for a profit. We also propose that lawmakers adopt both a compliance-driven safe harbor for online exchanges that list tokens with a reasonable belief that the public sale of such tokens is not a violation of Section 5 as well as an exemption to the Section 5 registration requirement that has been tailored to digital tokens.

October 16, 2017 in Corporate Finance, Current Affairs, Entrepreneurship, Joan Heminway, Research/Scholarhip, Securities Regulation, Web/Tech | Permalink | Comments (0)

Friday, October 6, 2017

Stonyfield's Struggles and Successes as a Social Business

Yesterday, I listened to How I Built This' podcast on Gary Hirshberg of Stonyfield Yogurt.

I assume most readers are familiar with Stonyfield Yogurt, and perhaps a bit of its story, but I think the podcast goes far beyond what is generally known. 

The main thing that stuck out in the podcast was how many struggles Stonyfield faced. Most of the companies featured on How I Built This struggle for a few months or even a few years, but Stonyfield seemed to face more than its share of challenges for well over a decade. The yogurt seemed pretty popular early on, but production, distribution, and cash flow problems haunted them. Stonyfield also had a tough time sticking with their organic commitment, abandoning organic for a few years when they outsourced production and couldn't convince the farmers to follow their practices. With friends and family members' patient investing (including Gary's mother and mother-in-law), Stonyfield finally found financial success after raising money for its own production facility, readopting organic, and finding broader distribution.

After about 20 years, Stonyfield sold the vast majority of the company to large multinational Group Danone. Gary explained that some investors were looking for liquidity and that he felt it was time to pay them back for their commitment. Gary was able to negotiate some control rights for himself (unspecified in the podcast) and stayed on as chairman. While this sale was a big payday for investors, it is unclear how much of the original commitment to the environment and community remained. Also, the podcast did not mention that Danone announced, a few months ago, that it would sell Stonyfield

Personally, I am a fan of Stonyfield's yogurt and it will be interesting to follow their story under new ownership. I also think students and faculty members could benefit from listening to stories like this to remind us that success is rarely easy and quick. 

October 6, 2017 in Business Associations, Corporate Governance, Corporations, CSR, Current Affairs, Entrepreneurship, Haskell Murray, Shareholders, Social Enterprise | Permalink | Comments (1)

Thursday, October 5, 2017

Should Employees Have Their Day in Court? The Supreme Court and Mandatory Arbitration

On Monday, the Supreme Court heard argument on three cases[1] that could have a significant impact on an estimated 55% of employers and 25 million employees. The Court will opine on the controversial use of class action waivers and mandatory arbitration in the employment context. Specifically, the Court will decide whether mandatory arbitration violates the National Labor Relations Act or is permissible under the Federal Arbitration Act. Notably, the NLRA applies in the non-union context as well.

Monday’s argument was noteworthy for another reason—the Trump Administration reversed its position and thus supported the employers instead of the employees as the Obama Administration had done when the cases were first filed. The current administration also argued against its own NLRB’s position that these agreements are invalid.

In a decision handed down by the NLRB before the Trump Administration switched sides on the issue, the agency ruled that Dish Network’s mandatory arbitration provision violates §8(a)(1) of the NLRA because it “specifies in broad terms that it applies to ‘any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee’s application for employment, employment and/or termination of employment, whenever and wherever brought.’” The Board believed that employees would “reasonably construe” that they could not file charges with the NLRB, and this interfered with their §7 rights.

The potential impact of the Supreme Court case goes far beyond employment law, however. As the NLRB explained on Monday:

The Board's rule here is correct for three reasons. First, it relies on long-standing precedent, barring enforcement of contracts that interfere with the right of employees to act together concertedly to improve their lot as employees. Second, finding individual arbitration agreements unenforceable under the Federal Arbitrations Act savings clause because are legal under the National Labor Relations Act gives full effect to both statutes. And, third, the employer's position would require this Court, for the first time, to enforce an arbitration agreement that violates an express prohibition in another coequal federal statute. (emphasis added).

This view contradicted the employers' opening statement that:

Respondents claim that arbitration agreements providing for individual arbitration that would otherwise be enforceable under the FAA are nonetheless invalid by operation of another federal statute. This Court's cases provide a well-trod path for resolving such claims. Because of the clarity with which the FAA speaks to enforcing arbitration agreements as written, the FAA will only yield in the face of a contrary congressional command and the tie goes to arbitration. Applying those principles to Section 7 of the NLRA, the result is clear that the FAA should not yield.

My co-bloggers have written about mandatory arbitration in other contexts (e.g., Josh Fershee on derivative suits here, Ann Lipton on IPOs here, on corporate governance here, and on shareholder disputes here, and Joan Heminway promoting Steve Bradford’s work here). Although Monday’s case addresses the employment arena, many have concerns with the potential unequal playing field in arbitral settings, and I anticipate more litigation or calls for legislation.  

I wrote about arbitration in 2015, after a New York Times series let the world in on corporate America’s secret. Before that expose, most people had no idea that they couldn’t sue their mobile phone provider or a host of other companies because they had consented to arbitration. Most Americans subject to arbitration never pay attention to the provisions in their employee handbook or in the pile of paperwork they sign upon hire. They don’t realize until they want to sue that they have given up their right to litigate over wage and hour disputes or join a class action.

As a defense lawyer, I drafted and rolled out class action waivers and arbitration provisions for businesses that wanted to reduce the likelihood of potentially crippling legal fees and settlements. In most cases, the employees needed to sign as a condition of continued employment. Thus, I’m conflicted about the Court’s deliberations. I see the business rationale for mandatory arbitration of disputes especially for small businesses, but as a consumer or potential plaintiff, I know I would personally feel robbed of my day in court.

The Court waited until Justice Gorsuch was on board to avoid a 4-4 split, but he did not ask any questions during oral argument. Given the questions that were asked and the makeup of the Court, most observers predict a 5-4 decision upholding mandatory arbitrations. The transcript of the argument is here. If that happens, I know that many more employers who were on the fence will implement these provisions. If they’re smart, they will also beef up their compliance programs and internal complaint mechanisms so that employees don’t need to resort to outsiders to enforce their rights.

My colleague Teresa Verges, who runs the Investor Rights Clinic at the University of Miami, has written a thought-provoking article that assumes that arbitration is here to stay. She proposes a more fair arbitral forum for those she labels “forced participants.” The abstract is below:

Decades of Supreme Court decisions elevating the Federal Arbitration Act (FAA) have led to an explosion of mandatory arbitration in the United States. A form of dispute resolution once used primarily between merchants and businesses to resolve their disputes, arbitration has expanded to myriad sectors, such as consumer and service disputes, investor disputes, employment and civil rights disputes. This article explores this expansion to such non-traditional contexts and argues that this shift requires the arbitral forum to evolve to increase protections for forced participants and millions of potential claims that involve matters of public policy. By way of example, decades of forced arbitration of securities disputes has led to increased due process and procedural reforms, even as concerns remain about investor access, the lack of transparency and investors’ perception of fairness.

I’ll report back on the Court’s eventual ruling, but in the meantime, perhaps some policymakers should consider some of Professor Verges’ proposals. Practically speaking though, once the NLRB has its full complement of commissioners, we can expect more employer-friendly decisions in general under the Trump Administration.

 

[1] Murphy Oil USA v. N.L.R.B., 808 F.3d 1013 (5th Cir. 2015), cert. granted, 137 S. Ct. 809, 196 L. Ed. 2d 595 (2017); Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016), cert. granted, 137 S. Ct. 809, 196 l. Ed. 2d. 595 (2017); Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), cert. granted, 137 S. Ct. 809, 196 L. Ed. 2d 595 (2017)

October 5, 2017 in Compliance, Corporate Governance, Corporations, Current Affairs, Employment Law, Legislation, Litigation, Marcia Narine Weldon | Permalink | Comments (0)

Friday, September 29, 2017

Pollman and Barry on Regulatory Entrepreneurship

I recently finished Elizabeth Pollman and Jordan Barry's article entitled Regulatory Entrepreneurship. The article is thoughtfully written and timely. I highly recommend it. 

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This Article examines what we term “regulatory entrepreneurship” — pursuing a line of business in which changing the law is a significant part of the business plan. Regulatory entrepreneurship is not new, but it has become increasingly salient in recent years as companies from Airbnb to Tesla, and from DraftKings to Uber, have become agents of legal change. We document the tactics that companies have employed, including operating in legal gray areas, growing “too big to ban,” and mobilizing users for political support. Further, we theorize the business and law-related factors that foster regulatory entrepreneurship. Well-funded, scalable, and highly connected startup businesses with mass appeal have advantages, especially when they target state and local laws and litigate them in the political sphere instead of in court.

Finally, we predict that regulatory entrepreneurship will increase, driven by significant state and local policy issues, strong institutional support for startup companies, and continued technological progress that facilitates political mobilization. We explore how this could catalyze new coalitions, lower the cost of political participation, and improve policymaking. However, it could also lead to negative consequences when companies’ interests diverge from the public interest.

September 29, 2017 in Business Associations, Compliance, Current Affairs, Entrepreneurship, Haskell Murray, Management, Research/Scholarhip, Technology | Permalink | Comments (1)

Wednesday, September 27, 2017

The Boycott Issue Hits America's Favorite Sport

You couldn't pay me enough to be the owner of an NFL team right now. I almost feel sorry for them. Even if you're not a  fan, by now you've heard about the controversy surrounding NFL free agent Colin Kaepernick, and his decision to kneel during the national anthem last year. You've also probably heard about the President's call for NFL owners to fire players who don't stand while the anthem is played and his prediction of the league's demise if the protests continue. Surprisingly, last Sunday and Monday, some of the same owners who made a business decision to take a pass on  Kaepernick despite his quarterback stats (citing among other things, the potential reactions of their fans) have now themselves made it a point to show solidarity with their players during the anthem. The owners are locking arms with players, some of whom are now protesting for the first time.

Football is big business, earning $13 billion last year, and the owners are sophisticated businessmen with franchises that are worth on average $2.5 billion dollars each. They care about their fans of course, and I'm sure that they monitor the various boycotts. They are also reading about lawmakers calling for funding cuts for teams that boycott. But they also care about their sponsors. Fortunately for the NFL (and for the players who have lucrative deals), most sponsors that have made statements have walked a fine line between supporting both the flag and free speech. The question is, how long will all of this solidarity last? There is no clear correlation between the rating shifts and the protests but as soon as there is definitive proof or sponsors start to pull out, I predict the owners will do a difficult cost-benefit analysis. Most teams aren't like the Green Bay Packers, which has no "owner," but instead has over 100,000 shareholders. Most teams don't have boards of directors or shareholders to answer to. Most of these owners used their own money or have very few business partners. 

The NFL teams owners' decision to maintain support of the players will likely be more difficult than those of the many CEOs who have expressed their disagreement with the President over race-related matters by quitting his advisory boards  (see my previous post ). Those CEOs could point to their own corporate codes of conduct or social responsibility statements. Those CEOs considered the reputational ramifications with their employees and their consumers, and the choice was relatively straightforward, especially because there was a more unified public outrage. The NFL owners, on the other hand, have highly skilled "employees" from a finite pool of talent who have been called SOBs by the President but who are also being booed by the fans, their consumers. The owners can't be fired, and it's very difficult to remove them. Should the owners stick with the players (some of whom are brand new to the protest scene) or should they wait to see the latest polls about what fans think about the leadership of America's favorite sport? Should they fire players, as they probably could under their contracts? The big test may come during a planned boycott by veterans during Veteran's Day Weekend. Perhaps I will be proven wrong, and maybe boycotts will have an effect on what the NFL owners and players do, but I predict the players and owners will want to get back to the business of playing football sooner rather than later.  I'll keep monitoring the situation this Sunday and for the rest of the season.

 

 

September 27, 2017 in Contracts, Corporate Personality, Current Affairs, Marcia Narine Weldon, Sports | Permalink | Comments (3)

Wednesday, September 20, 2017

What keeps general counsels and compliance officers up at night? Here's what boards should be discussing

No one had a National Compliance Officer Day when I was in the job, but now it’s an official thing courtesy of SAI Global, a compliance consulting company. The mission of this one-year old holiday is to:

  • Raise awareness about the importance of ethics and compliance in business and shine a spotlight on the people responsible for making it a reality.
  • Provide resources to promote the wellness and well-being of ethics and compliance professionals so they can learn how to overcome stress and burnout.
  • Grow the existing ethics and compliance community and help identify and guide the next generation of E&C advocates.

Although some may look at this skeptically as a marketing ploy, I’m all for this made-up holiday given what compliance officers have to deal with today.

Last Saturday, I spoke at the Business Law Professor Blog Conference at the University of Tennessee about corporate governance, compliance, and social responsibility in the Trump/Pence era. During my presentation, I described the ideal audit committee meeting for a company that takes enterprise risk management seriously. My board agenda included: the impact of climate change and how voluntary and mandatory disclosures could change under the current EPA and SEC leadership; compliance budgetary changes; the rise of the whistleblower; the future of the DOJ’s Yates Memo and corporate cooperation after a recent statement by the Deputy Attorney General; SEC and DOJ enforcement priorities; data protection and cybersecurity; corporate culture and the risk of Google/Uber- type lawsuits; and sustainability initiatives and international governance disclosures. I will have a short essay in the forthcoming Transactions: The Tennessee Journal of Business Law but here are a few statistics that drove me to develop my model (and admittedly ambitious) agenda:

  • According to an ACC survey of over 1,000 chief legal officers:
    • 74% say ethics and compliance issues keep them up at night
    • 77% handled at least one internal or external compliance-related investigation in their department
    • 33% made policy changes in their organizations as a result of geopolitical events.
    • 28% were targeted by regulators in the past two years
  • Board members polled in September 2016 were most concerned about the following compliance issues:
    • Regulatory changes and scrutiny may heighten
    • Cyber threats
    • Privacy/identity and information security risks
    • Failure of corporate culture to encourage timely identification/escalation of significant risk issues
  • During the 2017 proxy season, shareholders submitted 827 proposals (down from 916 in 2016):
    • 112 related to proxy access,
    • 87 related to political contributions and lobbying,
    • 35 focused on board diversity (up from 28 in 2016),
    • 34 proposals focused on discrimination or diversity-related issues (up from 16 in 2016),
    • 69 proposals related to climate change (3 of those passed, including at ExxonMobil)
    • 19 proposals focused on the gender pay gap (up from 13 in 2016)

General counsels are increasingly taking on more of a risk officer role in their companies, and compliance officers are in the thick of all of these issues. The government has also recently begun to hold compliance officers liable for complicity with company misdeeds. My advice- if it’s not against your company/school policy, take SCCE’s suggestion and hug your compliance officer. I’m sure she’ll appreciate it.

September 20, 2017 in Compliance, Conferences, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Marcia Narine Weldon | Permalink | Comments (0)

Professor Leahy on "Loftium Unwittingly Forms General Partnerships with Homebuyers"

Friend of the blog and South Texas College of Law (Houston) Professor Joe Leahy sent over the following post he authored. It is cross-posted at UberLaw.Net and Medium. Embarrassingly, I had not heard about Loftium before reading this post, though at least I know of and have used Airbnb. Joe has some interesting thoughts, and I am happy to include his post on this blog. 

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Yesterday, the New York Times trumpeted a new internet company, Loftium, and its interesting, new-economy business model (which, for the time being, operates only in Seattle):

Loftium will provide prospective homebuyers with up to $50,000 for a down payment, as long as they are willing to continuously list an extra bedroom on Airbnb for one to three years and share most of the income with Loftium over that time.

At first glance, the arrangement between Loftium and participating homebuyers might sound like a loan.  (Indeed, the Times even describes it as such in an infographic.)  But upon a closer look, the arrangement that Loftium contemplates with homebuyers clearly is not a loan.  First of all, Loftium says it is not a loan; rather, according to Loftium, the down payment assistance it provides to homebuyers is “a part of a services agreement” lasting 12-36 months.  Second, and more important, the arrangement between Loftium and homebuyers has none of the characteristics of a traditional (term) loan.  There is no “principal” amount that the homebuyer is required to repay in a set period of time, and Loftium does not charge the homeowner any “interest.”  In fact, the homebuyer is not required to make anypayments to Loftium in return for the company’s cash (unless the homeowner breaches the parties’ agreement and stops renting on Airbnb before the term expires).

All the homebuyer must do in exchange for Loftium’s money is (1) list her spare room on Airbnb continuously through the term of her agreement with Loftium, (2) be a decent host (i.e., “not be[] rude to guests”) and (3) split her Airbnb  rental revenue with Loftium (with two-thirds going to the company.)  If, at the end of the term, Loftium has not been repaid its initial investment, the homeowner is not required to repay Loftium’s initial contribution. Hence, if renting out the homeowner’s spare room is not profitable during the term of the parties’ agreement, “Loftium takes full responsibility for that loss.”

Of course, Loftium expects that the total income from renting out a homeowner’s spare room will greatly exceed the amount that it originally provided to the homebuyer, so that both will profit.  If Loftium makes more in rental income than it pays towards the homeowner’s down payment, Loftium will make a profit.

Further, by all appearances, there is no cap on Loftium’s potential profit is its business arrangement with homebuyers.  In fact, Loftium makes clear that it wants to maximize the income that it splits with homebuyers:  Loftium promises that it will work with them “to increase monthly bookings as much as possible, so both sides can benefit from the additional income.”  To that end, Loftium provides homebuyers with some start-up supplies for their spare bedroom (and a keyless entry lock), access to advice and know-how regarding how to rent an Airbnb room, and online tools to help maximize their rental income.

So, if the business arrangement between Loftium and homeowners is not a loan, what is it?  It is almost certainly a general partnership for a term (i.e., a “joint venture”).

[Post continues after the page break]

Continue reading

September 20, 2017 in Business Associations, Contracts, Current Affairs, Haskell Murray, Partnership, Real Property, Technology | Permalink | Comments (1)

Monday, September 11, 2017

Remembering 9-11-2001

My family has been touched by terrorism.  My cousin, Scott Marsh Cory, died on Pan Am Flight 103--the Lockerbie flight--on December 21, 1988.  He was a Syracuse University student coming home from a semester abroad in England.  Every December 21, with Christmas and grading on my mind, I stop for a moment to remember him.  I think of him at various other times, too.  My son Scott is named after him.

The events of September 11, 2001 are irrevocably connected in my mind to all that.  I taught that morning after both World Trade Center towers had been hit.  I gave students permission to come and go in my class that day.  But I felt that I had to teach that class.  I vowed that I was not going to let terrorists have power over me and rule my life--which is, after all, what they want to do.  I did not teach my afternoon class.  I had learned after my morning class that my brother was scheduled to be down near the World Trade Center towers that morning--and we could not reach him.  I was too emotional to be able to teach, and almost everyone had cancelled their classes at that point.  Luckily, my brother and a colleague got stuck in the traffic trying to get into Manhattan from New Jersey that morning, and they were turned back after the bridges and tunnels were closed.

I paused at the beginning of both of my classes today to reflect on that day 16 years ago.  I gave my students permission to come and go, as I had that morning.  Some of them were quite young when the September 11 attacks occurred.  I cannot imagine what they remember of that day.  No doubt some remember little, if anything; but some may have been deeply affected by the violence of that day.

Today, many of us, each in our own way, stop to remember.  I wanted to take a minute to do that here, too.

September 11, 2017 in Current Affairs, Joan Heminway | Permalink | Comments (1)

Thursday, September 7, 2017

Podcasts: "StartUp" and a $16 Cup of Coffee

As previously mentioned, I am always looking for good podcasts. I listen to podcasts while mowing our lawn and on road trips. 

StartUp is the latest podcast series that I have uncovered, thanks to a recommendation from my sister Anna who works for a media/marketing start up herself.

From what I have uncovered so far, StartUp seems to be quite like NPR's How I Built This, which I mentioned in a previous post. Hosts of both podcasts interview entrepreneurs about the founding of their businesses and the ups and downs thereafter. The biggest difference I see is that StartUp seems to focus on smaller companies (a number that I had never heard of), while How I Built This seems to focus on companies that are now quite large and successful. In early seasons of StartUp there appear to be a number of the podcasts that depart from the entrepreneur-interview model, but I haven't dug into the early seasons yet. I am mainly focused on the recent podcasts. 

Perhaps most interestingly, I recently listened to a podcast on StartUp about Mokhtar Alkhanshali and his specialty coffee. Mokhtar sources his coffee beans from war-torn Yemen and a cup of his coffee sells for $16 a cup. At first, this seemed like a ridiculous price for a cup of coffee, but after hearing how Mokhtar risked his life for his business in Yemen (bombings, escaping on a tiny boat, being captured, etc.) and listening to the specialty coffee to wine comparison, the pricing does make more sense. I might pay $16 once, just for the story, but I couldn't see a $16 cup of coffee becoming even a semi-regular purchase for me. That said, I know people who are getting increasingly serious about their coffee and perhaps it can be sustained in some cities. 

September 7, 2017 in Business Associations, Business School, Current Affairs, Entrepreneurship, Haskell Murray, Technology | Permalink | Comments (2)

Tuesday, September 5, 2017

How To Read the News Carefully and Maybe Some Disclosures, Too

Reading closely is a highly valuable skill for both lawyers and law students.  But reading closely is not the only key to getting the most out of reading materials.  Often, knowing what to look for can help us discern what we're really being told. An article at LawFare, How to Read a News Story About an Investigation: Eight Tips on Who Is Saying What, by Benjamin Wittes, does a nice job of providing some tools to help read news stories more carefully, and perhaps accurately, especially when it comes to sources.  Note that this piece applies to reputable reporters, not everyone who has written something about current events.  

One solid takeaway: 

Reporters publish what they know. If a story describes a series of interactions between a witness or a subject of an investigation and the investigators and the story contains information about one side’s thinking but not the other’s, that’s a powerful sign of where the disclosure came from.

Many of the skills here would translate into other settings, too.  For example, Wittes' first rule: The Words Describing a Source Should Be Presumed Accurate.  He says, "Always start with the precise words the journalist is using to describe her sources. An ethical journalist will never write a sentence that is not on its own terms true." This should be true of a SEC filings or other corporate disclosure documents, too, but it does not mean that the words will clearly communicate the same thing to all readers. 

Wittes' Rule No. 2 also applies: Don’t Make Hasty Assumptions About Vague Sourcing.

While the words have to be true, they emphatically do not have to be evocative of some larger truth. While the words have to be true, they emphatically do not have to be evocative of some larger truth. The conventions associated with sourcing stories like these permit a certain degree of misdirection about which the reasonable reader should be savvy. Reporters have a duty to inform the public; they also have a duty to protect their sources. These goals often conflict, and the solution is sometimes to inform the public in a fashion that is technically accurate but is not what a naive reader would expect certain words to mean.

As to this rule, I would not say that "misdirection" is permitted in SEC filings, but this last part seems generally true of many SEC disclosures: they inform the public in a "technically accurate" way but not necessarily in a way that "a naive reader would expect certain words to mean." I know some people will disagree with my cynical view on this, but that's my take.  The closing advice: "Read sourcing sentences both literally and broadly."  Same with disclosures.  

I recommend reading Wittes' piece for its intended purpose and to see what you might take away for application in other settings. It's a solid and thought-provoking overview, whether you agree with my assessment or not. 

September 5, 2017 in Current Affairs, Joshua P. Fershee, Lawyering | Permalink | Comments (0)

Friday, September 1, 2017

Boardrooms and Playgrounds

There has been quite a lot written about the relative lack of women on boards of directors (and their impact on boards of directors). See here, here, here, here, here, here, here, and here. Women hold slightly less than 20% of the board of director seats at major U.S. companies, depending on what group of companies you consider. See here, here, and here.

In this post, I am not going to discuss the vast literature on the topic of women in the boardroom or the quotas that some countries have established, but I do want to point out the curious lack of fathers at playgrounds in Nashville this summer. I am including this post in the Law & Wellness series because I think men and women would both benefit if we saw more fathers at playgrounds during the week.

During ten trips to our popular neighborhood playground, during weekday working hours, I saw 6 men and 72 women. Now, it is probable that some of the people I saw were nannies or grandparents, but I excluded the obvious ones and quite a large percentage seemed like parents anyway.

This is an extremely small sample, but the percentage of fathers at playgrounds with their children looks lower than the percentage of women on boards. While I haven’t counted, I have noted fairly similar ratios at the public library story-time, the trampoline park, the zoo, and the YMCA pool during weekday working hours.   

Perhaps this is not surprising, and perhaps the ratios are different in non-Southern cities (though Nashville is pretty progressive, at least for this area of the country). But I will say that I sometimes feel out of place and sometimes feel the need to explain myself when I am out solo with my children during "working hours."

When asked, I do have a “good” explanation – a fabulously flexible job – but I sometimes imagine those conversations if I had chosen to stay home while my wife worked or if I were taking time off a "normal" 8 to 5 job. Unfortunately, I don't think we are at a place, at least in my community, where we give fathers much respect for taking care of their children.  I consider raising my children an incredibly important and valuable role. Raising children is demanding and draining, but my life is undoubtedly richer for it. Over the last few years, I have also gained quite a lot of appreciation for people who raise children on their own; the job is difficult enough for my wife and me together. I am not sure what actions from government and business would be best for children, but I do know that both should be seriously considering their options. 

September 1, 2017 in Corporate Governance, Current Affairs, Family, Haskell Murray, Wellness | Permalink | Comments (1)

Thursday, August 31, 2017

Does Uber Need to Learn from Walmart about the FCPA?

Uber has a new CEO. Perhaps his first task should be to require one of his legal or compliance staff to attend the FCPA conference at Texas A & M in October given the new reports of an alleged DOJ investigation.. I might have some advice, but Uber needs to hear the lessons learned from Walmart, who will be sending its Chief Compliance Officer. Thanks to FCPA expert, Mike Koehler, aka the FCPA Professor, for inviting me. Mike has done some great blogging about the Walmart case (FYI- the company has reported spending $865 million on fees related to the FCPA and compliance-related costs). Details are below:

 

THE F​CPA TURNS 40:
AN ASSESSMENT OF FCPA ENFORCEMENT POLICIES AND PROCEDURES

FCPA ConferenceThursday, October 12, 2017
Texas A&M University School of Law
Fort Worth, Texas

This conference brings together Foreign Corrupt Practices Act enforcement officials, experienced FCPA practitioners, and leading FCPA academics and scholars to discuss the many legal and policy issues relevant to the current FCPA enforcement and compliance landscape.

Register here

AGENDA

[Click here to download agenda pdf]

Registration, 8:30 a.m.

Morning Session, 9:00 a.m. to Noon

FCPA Legal and Policy Issues

  • Daniel Chow, Professor, Ohio State School of Law
    China’s Crackdown on Government Corruption and the FCPA
  • Mike Koehler, Professor, Southern Illinois School of Law
    Has the FCPA Been Successful In Achieving Its Objectives?
  • Peter Reilly, Associate Professor, Texas A&M School of Law
    The Fokker Circuit Court Opinion and Deferred Prosecution of FCPA Matters
  • Juliet Sorensen, Professor, Northwestern School of Law
    The Phenomenon of an Outsize Number of Male Defendants Charged with Federal Crimes of Corruption
  • Marcia Narine Weldon, Professor, Univ. of Miami School of Law
    What the U.S. Can Learn from Enforcement in Other Jurisdictions and What Other Jurisdictions Can Learn from Us

Luncheon, Noon to 1:00 p.m.

Afternoon Session, 1:00 to 3:00 p.m.

FCPA Conference JorgensenKeynote address

(1:00 to 2:00 p.m.)

  • Jay Jorgensen
    Executive Vice President, Global Chief Ethics and Compliance Officer, Walmart

Follow-up panel (2:00 to 3:00 p.m.):

FCPA Enforcement and Compliance Landscape: Past, Present, and Future

  • Kit Addleman, Attorney, Haynes and Boone LLP, Dallas and Fort Worth Offices
  • Jason Lewis, Attorney, Greenberg Traurig LLP, Dallas Office

CLE Credit for Attendees

All attendees are eligible for ​​5 hours of CLE credit. The morning session offers ​3 CLE credits. The afternoon session offers 2 CLE credits, one of which will be an Ethics credit. Forms will be provided to attendees at the conference. CLE ​credit is free for all attendees.
 
 
 

August 31, 2017 in Compliance, Conferences, Corporate Governance, Corporations, Current Affairs, Ethics, Marcia Narine Weldon, White Collar Crime | Permalink | Comments (0)

Friday, August 18, 2017

Law & Wellness: Introduction

On July 15 of this year, The New York Times ran an article entitled, “The Lawyer, The Addict.” The article looks at the life of Peter, a partner of a prestigious Silicon Valley law firm, before he died of a drug overdose.

You should read the entire article, but I will provide a few quotes.

  • “He had been working more than 60 hours a week for 20 years, ever since he started law school and worked his way into a partnership in the intellectual property practice of Wilson Sonsini.”
  • “Peter worked so much that he rarely cooked anymore, sustaining himself largely on fast food, snacks, coffee, ibuprofen and antacids.”
  • “Peter, one of the most successful people I have ever known, died a drug addict, felled by a systemic bacterial infection common to intravenous users.”
  • “The history on his cellphone shows the last call he ever made was for work. Peter, vomiting, unable to sit up, slipping in and out of consciousness, had managed, somehow, to dial into a conference call.”
  • “The further I probed, the more apparent it became that drug abuse among America’s lawyers is on the rise and deeply hidden.”
  • “One of the most comprehensive studies of lawyers and substance abuse was released just seven months after Peter died. That 2016 report, from the Hazelden Betty Ford Foundation and the American Bar Association, analyzed the responses of 12,825 licensed, practicing attorneys across 19 states. Over all, the results showed that about 21 percent of lawyers qualify as problem drinkers, while 28 percent struggle with mild or more serious depression and 19 percent struggle with anxiety. Only 3,419 lawyers answered questions about drug use, and that itself is telling, said Patrick Krill, the study’s lead author and also a lawyer. “It’s left to speculation what motivated 75 percent of attorneys to skip over the section on drug use as if it wasn’t there.” In Mr. Krill’s opinion, they were afraid to answer. Of the lawyers that did answer those questions, 5.6 percent used cocaine, crack and stimulants; 5.6 percent used opioids; 10.2 percent used marijuana and hash; and nearly 16 percent used sedatives.”

There is much more in the article, including claims that the problems with mindset and addiction, for many, start in law school.

After reading this article, and many like it (and living through the suicide of a partner at one of my former firms), I decided to do a series of posts on Law & Wellness. These posts will not focus on mental health or addiction problems. Rather, these posts will focus on the positive side. For example, I plan a handful of interviews with lawyers and educators who manage to do well both inside and outside of the office, finding ways to work efficiently and prioritize properly. My co-editors may chime in from time to time with related posts of their own.

August 18, 2017 in Current Affairs, Ethics, Family, Haskell Murray, Law School, Management, Wellness | Permalink | Comments (2)

Wednesday, August 16, 2017

The CEOs of Corporate America vs. The CEO of America

Business leaders probably didn’t think the honeymoon would be over so fast. A CEO as President, a deregulation czar, billionaires in the cabinet- what could possibly go wrong?

When Ken Frazier, CEO of Merck, resigned from one of the President’s business advisory councils because he didn’t believe that President Trump had responded appropriately to the tragic events in Charlottesville, I really didn’t think it would have much of an impact. I had originally planned to blog about How (Not) To Teach a Class on Startups, and I will next week (unless there is other breaking news). But yesterday, I decided to blog about Frazier, and to connect his actions to a talk I gave to UM law students at orientation last week about how CEOs talk about corporate responsibility but it doesn’t always make a difference. I started drafting this post questioning how many people would actually run to their doctors asking to switch their medications to or from Merck products because of Frazier’s stance on Charlottesville. Then I thought perhaps, Frazier’s stance would have a bigger impact on the millennial employees who will make up almost 50% of the employee base in the next few years. Maybe he would get a standing ovation at the next shareholder meeting. Maybe he would get some recognition other than an angry tweet from the President and lots of news coverage.

By yesterday afternoon, Under Armour’s CEO had also stepped down from the President’s business advisory council. That made my draft post a little more interesting. Would those customers care more or less about the CEO's position? By this morning, still more CEOs chose to leave the council after President Trump’s lengthy and surprising press conference yesterday. By that time, the media and politicians of all stripes had excoriated the President. This afternoon, the President disbanded his two advisory councils after a call organized by the CEO of Blackstone with his peers to discuss whether to proceed. Although Trump “disbanded” the councils, they had already decided to dissolve earlier in the day.

I’m not teaching Business Associations this semester, but this is a teachable moment, and not just for Con Law professors. What are the corporate governance implications? Should the CEOs have stayed on these advisory councils so that they could advise this CEO President on much needed tax, health care, immigration, infrastructure, trade, investment, and other reform or do Trump’s personal and political views make that impossible? Many of the CEOs who originally stayed on the councils believed that they could do more for the country and their shareholders by working with the President. Did the CEOs who originally resigned do the right thing for their conscience but the wrong thing by their shareholders? Did those who stayed send the wrong message to their employees  in light of the Google diversity controversy? Did they think about the temperament of their board members or of the shareholder proposals that they had received in the past or that they were expecting when thinking about whether to stay or go? 

Many professors avoid politics in business classes, and that’s understandable because there are enough issues with coverage and these are sensitive issues. But if you do plan to address them, please comment below or send an email to mweldon@law.miami.edu.

August 16, 2017 in Business Associations, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Law School, Marcia Narine Weldon, Shareholders, Teaching | Permalink | Comments (1)

Wednesday, August 9, 2017

AALS Section on Business Associations Call for Papers: Institutional Investors and Corporate Governance

Call for Papers (DEADLINE: August 24, 2017)

AALS Section on Business Associations

Institutional Investors and Corporate Governance

AALS Annual Meeting, January 5, 2018

The AALS Section on Business Associations is pleased to announce a Call for Papers for a joint program to be held on Friday, January 5, 2018 at the 2018 AALS Annual Meeting in San Diego, California.  The topic of the program is “Institutional Investors and Corporate Governance.”

In thinking through the difficulty of agency costs within the public corporation, corporate law academics have turned repeatedly to institutional investors as a potential solution.  The agglomeration of shares within a large investing firm, together with ongoing cooperation amongst a large set of such investors, could overcome the rational apathy the average shareholder has towards participation in corporate governance.  Alternatively, activist investors could exert specific pressure on isolated companies that have been singled out—like the weakest animals in the herd—for extended scrutiny and pressure.  In these examples, the institutionalization of investing offers a counterbalance to the power of management and arguably provides a systematized way of reorienting corporate governance.  These institutional-investor archetypes have, in fact, come to life since the 1970s and have disrupted the stereotype of the passive investor.  But have we achieved a new and stable corporate governance equilibrium?  Or have we instead ended up with an additional set of agency costs – the separation of ownership from ownership from control?  This program seeks to explore these questions and assess the developments in the field since the beginning of the new century. 

The program is cosponsored by the Section on Securities Regulation.

Form and length of submission

Eligible law faculty are invited to submit manuscripts or abstracts that address any of the foregoing topics. Abstracts should be comprehensive enough to allow the review committee to meaningfully evaluate the aims and likely content of final manuscripts.  Any unpublished manuscripts (including unpublished manuscripts already accepted for publication) may be submitted for consideration.  Untenured faculty members are particularly encouraged to submit manuscripts or abstracts.

The initial review of the papers will be blind.  Accordingly, the author should submit a cover letter with the paper.  However, the paper itself, including the title page and footnotes must not contain any references identifying the author or the author’s school.  The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes. 

 

Deadline and submission method

To be considered, manuscripts or abstracts must be submitted electronically to Professor Matthew Bodie, Chair-Elect of the Section on Business Associations, at  mbodie@slu.edu.  Please use the subject line: “Submission: AALS BA CFP.”  The deadline for submission is Thursday, August 24, 2017.  Papers will be selected after review by members of the Executive Committee of the Section on Business Associations.  The authors of the selected papers will be notified by Thursday, September 28, 2017.

 

Eligibility

Full-time faculty members of AALS member law schools are eligible to submit papers.  The following are ineligible to submit: foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members; graduate students; fellows; non-law school faculty; and faculty at fee-paid non-member schools. Papers co-authored with a person ineligible to submit on their own may be submitted by the eligible co-author.

The Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

August 9, 2017 in Business Associations, Call for Papers, Conferences, Current Affairs, Joshua P. Fershee, Research/Scholarhip | Permalink | Comments (0)

Monday, August 7, 2017

SEALS 2017 - Business Regulatory Reform

Yesterday, on the last morning of the 2017 Southeastern Association of Law Schools (SEALS) conference, Matt Lyon, the Associate Dean at Lincoln Memorial University - Duncan School of Law (UT Law's Knoxville neighbor) convened a discussion group on "Corporate and Financial Reform in the Trump Administration." I was grateful to be asked to participate.  In addition to me, BLPB co-bloggers Josh Fershee and Marcia Narine Weldon, my UT Law coworker Brian Krumm, Securities Law Prof Blog editor Eric Chaffee, and University of Houston Law Center colleague Darren Bush were among the discussants.

SEALS2017(RegReformDiscGrp-1)

Each of us came with issues and questions for discussion.  Each of us offered reflections.  Recently made, currently proposed, and possible future changes to business regulation were all on the table.  I wish this session had been held earlier in the program, since many had left before the Sunday morning sessions (and we were competing with, among other enticing alternatives, a discussion session on marijuana regulation). However, we honestly had more than enough to discuss as among the seven of us, in any case.

I had to leave the session early to attend the SEALS board meeting.  But before I left, I took some notes on topics relating to my interest in and potential future work on regulatory reform.  I continue, for example, to be interested in the best approaches to reducing and streamlining regulation.  (See my posts here and here.)  A few additional outtakes follow.

Continue reading

August 7, 2017 in Conferences, Current Affairs, Joan Heminway | Permalink | Comments (0)

Friday, August 4, 2017

Summer Reading: Option B by Sheryl Sandberg and Adam Grant

OptionB

Shortly after hearing Sheryl Sandberg and Adam Grant speak on a Harvard Business Review podcast, I purchased Option B.

After listening to the podcast, I expected the book to contain more references to the research on resilience than it ultimately did. While I knew the book was popular press, I expected Penn Professor Adam Grant to add a more scholarly flavor. As it was, the book was a relatively short memoir focused on the death of Sheryl Sandberg's husband Dave. Had I started the book expecting a window into Sandberg's grieving process rather than an accessible integration of the resilience research, I think I would have appreciated the book more.  

On the positive side, the book is an extremely easy read and is written with a punchy, engaging style. Sandberg is quite honest, and is blunt in sharing with the readers what is and isn't helpful in interacting with those who have experienced great personal loss. In Sanberg's opinion, you should address the elephant in the room, and should not worry about reminding them of their loss, as they are already thinking about it all the time. Vague offers like "let me know if I can do anything to help" were deemed less helpful than more specific offers like "I am in the hospital waiting room for the next hour if you would like a hug" or "what would you not like on a burger." Also, mere presence was deemed meaningful. As someone who is always at a loss for what to say or do in these situations, her suggestions were helpful. 

Of the relatively limited references to research, I found the discussion of Martin Seligman's work helpful, including the finding that "three P's can stunt recovery: (1) personalization - the belief that we are at fault; (2) pervasiveness - the belief that an event will affect all areas of our life; and (3) permanence - the belief that the aftershocks of the event will last forever." (16).

Also, I appreciated the references to Joe Kasper's work on post-traumatic growth in its "five different forms: finding personal strength, gaining appreciation, forming deeper relationships, discovering more meaning in life, and seeing new possibilities." (79). Thankfully, the authors note that you do not have to actually experience trauma to benefit from this sort of growth, you can experience pre-traumatic growth (especially through observing the trauma of others or near-misses in your own life). 

Based on the podcast, I was hoping on more information on raising resilient children, and there is a chapter on this topic. That said, the chapter did not offer much new. Sandberg and Grant refer to Carol Dweck's work on growth mindset, which I reviewed a few years ago on this blog. The main suggestion was to help "children develop four core beliefs: (1) they have some control over their lives; (2) they can learn from failure; (3) they matter as human beings; (4) and they have real strengths to rely on and share." (111).

While this book wasn't quite what I expected, given the very limited amount of time it took to read (2-3 hours), I think it was worthwhile as a honest look at one person's grief and suggested ways to serve grieving people. 

August 4, 2017 in Books, Current Affairs, Haskell Murray, Psychology | Permalink | Comments (0)

Wednesday, August 2, 2017

How (Not) To Teach A Course in Compliance and Corporate Social Responsibility

Good morning from gorgeous Belize. I hope to see some of you this weekend at SEALS. A couple of weeks ago, I posted about the compliance course I recently taught. I received quite a few emails asking for my syllabus and teaching materials. I am still in the middle of grading but I thought I would provide some general advice for those who are considering teaching a similar course. I taught thinking about the priorities of current employers and the skills our students need.

1) Picking materials is hard- It's actually harder if you have actually worked in compliance, as I have, and still consult, as I do from time to time. I have all of the current compliance textbooks but didn't find any that suited my needs. Shameless plug- I'm co-authoring a compliance textbook to help fill the gap. I wanted my students to have the experience they would have if they were working in-house and had to work with real documents.  I found myself either using or getting ideas from many primary source materials from the Society of Corporate Compliance and Ethics, the  Institute of Privacy ProfessionalsDLA Piper, the Federal Sentencing Guidelines for Organizational Defendants, policy statements from various governmental entities in the US (the SEC, DOJ Banamex case, and state regulators), and abroad (UK Serious Frauds Office and Privacy Office). Students also compared CSR reports, looked at NGO materials, read the codes of conducts of the guest speakers who came in, and looked at 10-Ks, the Carbon Disclosure Project, and other climate change documents for their companies. I also had students watch YouTube videos pretending that they went to CLEs and had to write a memo to the General Counsel so that s/he could update the board on the latest developments in healthcare compliance and risk assessments. 

2) This should be a 3-credit course for it to be an effective skills course- My grand vision was for guest speakers to come in on Mondays  for an hour and then I would lecture for the remaining time or I would lecture for two hours on Monday and then students would have simulations on Wednesday.This never happened. Students became so engaged that the lecturers never finished in an hour. We were always behind. Simulations always ran over. 

3) Don't give too much reading- I should have known better. I have now taught at three institutions at various tiers and at each one students have admitted- no, actually bragged- that they don't do the reading. Some have told me that they do the reading for my classes because I grade for class participation, but I could actually see for my compliance course how they could do reasonably well without doing all of the reading, which means that I gave too much. I actually deliberately provided more than they needed in some areas (especially in the data privacy area) because I wanted them to build a library in case they obtained an internship or job after graduation and could use the resources. When I started out in compliance, just knowing where to look was half the battle. My students have 50 state surveys in employment law, privacy and other areas that will at least give them a head start.

4) Grading is hard- Grading a skills course is inherently subjective and requires substantive feedback to be effective.  40% of the grade is based on a class project, which was either a presentation to the board of directors or a training to a group of employees. Students had their choice of topic and audience but had to stay within their industry and had the entire 6-week term to prepare. Should I give more credit to the team who trained the sales force on off-label marketing for pharmaceuticals because the class acting as the sales force (and I) were deliberately disrespectful (as some sales people would be in real life because this type of  training would likely limit their commissions)? This made their training harder. Should I be tougher on the group that trained  the bored board on AML, since one student presenter was in banking for years? I already know the answers to these rhetorical questions. On individual projects, I provide comments as though I am a general counsel, a board member, or a CEO depending on the assignment. This may mean that the commentary is "why should I care, tell me about the ROI up front." This is not language that law students are used to, but it's language that I have tried to instill throughout the course. I gave them various versions of the speech, "give me less kumbaya, we need to care about the slave labor in the factories, and less consumers care about company reputation, and more statistics and hard numbers to back it up."  Some of you may have seen this recent article about United and the "non-boycott, which validates what I have been blogging about for years. If it had come out during the class, I would have made students read it because board members would have read it and real life compliance officers would have had to deal with it head on.

5) Be current but know when to stop- I love compliance and CSR. For the students, it's just a class although I hope they now love it too. I found myself printing out new materials right before class because I thought they should see this latest development. I'm sure that  what made me think of myself as cutting edge and of the moment made me come across to them as scattered and disorganized because it wasn't on the syllabus.

6) Use guest speakers whenever possible- Skype them in if you have to. Nothing gives you credibility like having someone else say exactly what you have already said.

If you have any questions, let me know. I will eventually get back to those of you who asked for materials, but hopefully some of these links will help. If you are teaching a course or looking at textbook, send me feedback on them so that I can consider it as I work on my own. Please email me at mweldon@law.miami.edu.

Next week, I will blog about how (not) to teach a class on legal issues for start ups, entrepreneurs, and small businesses, which I taught last semester.

August 2, 2017 in Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Employment Law, Human Rights, Law School, Lawyering, Marcia Narine Weldon, Teaching | Permalink | Comments (0)

Monday, July 31, 2017

Democratic Norms and the Corporation: The Core Notion of Accountability

The corporate form has been compared and contrasted favorably and unfavorably with government.  The literature is broad and deep.  Having said that, there is, perhaps, no one who writes more passionately on this topic than Daniel Greenwood.  Set forth below are two examples of text from his work that illustrate my point.

We live in a democratic age, in which the sole legitimate source of political power is the consent of the governed. Yet our business corporations defy every norm of democracy.
 
Most fundamentally, corporate law and our major business corporations treat the people most analogous to the governed, those most concerned with corporate decisions, as mere helots. Employees in the American corporate law system have no political rights at all—not only no vote, but not even virtual representation in the boardroom legislature. Board members owe a fiduciary duty to the corporation, according to most of the statutes, and to the shareholders, according to the popular shareholder primacy narratives, but they owe no consideration at all to employees.
 
Daniel J.H. Greenwood, Essay: Telling Stories of Shareholder Supremacy, 2009 Mich. St. L. Rev. 1049, 1060 (2009).
 
The corporation as a state-within-the-state . . . cannot be justified under any democratic theory, because this state-like entity defies all democratic norms internally. No corporation operates by the principle of one person, one vote. All economically significant corporations disenfranchise a substantial portion of the affected populace, while even shareholders vote according to the number of shares they hold. Moreover, standard corporate law sharply limits the control that even the “voters” have over “their” entity. The law bars them, in the absence of unanimous consent, from making fundamental value choices, for example, from balancing the pursuit of profit against other potential corporate goals, such as quality products, interests of non-shareholder participants or even the actual financial interests of the real human beings who own the shares. Moreover, it even bars them from electing directors pledged to particular interests: directors, unlike ordinary politicians, are bound by law to pursue the interests of all (and only) shares, and courts will enforce this duty-subject to the often significant limitations of the business judgment rule-at the behest of any shareholder, regardless of election results. Theorists, therefore, usually resort to market-based explanations of why the corporation is unable to exert any power over its shareholders, employees and other participants.
 
Daniel J.H. Greenwood, Markets and Democracy: The Illegitimacy of Corporate Law, 74 UMKC L. Rev. 41, 54–55 (2005) (footnotes omitted).  Whether you agree with Daniel or not on the substance, his views are transparent and his belief and energy are palpable.
 
With politics in the news every day and corporations on my mind, I have been pondering certain elements of democracy as they play themselves out in corporate governance.  In particular, of late, I have focused in on accountability as a core democratic norm.  

Continue reading

July 31, 2017 in Corporate Governance, Corporations, Current Affairs, Joan Heminway | Permalink | Comments (2)

Friday, July 28, 2017

Summer Reading: John Inazu - Confident Pluralism

These days it is easy to get discouraged on how divided our nation seems to be on a number of issues. John Inazu, Distinguished Professor of Law, Religion, and Political Science at Washington University, maps a way forward in his book Confident Pluralism (2016).

The book is divided into two parts: (1) Constitutional Commitments, and (2) Civic Practices.

The first part “contend[s] that recent constitutional doctrine has departed from our longstanding embrace of pluralism and the political arrangements that make pluralism possible.” (8) Further, the first part offers guideposts for future decisions and political solutions. The first part argues for both inclusion and dissent, for the free formation of voluntary groups, for meaningful access to public forums, and for access to publicly available funding for diverse organizations. Provocatively, Inazu claims that Bob Jones case – which stripped tax-exempt status from Bob Jones University due to its prohibition of interracial dating/marriage – is “normatively attractive to almost everyone, [but] is conceptually wrong.” (75) Inazu claims that “[t]he IRS should not limit tax-exempt status based on viewpoint of ideology.” (79) He extends the argument to “generally available resources.” While the Trinity Lutheran case was decided by the Supreme Court after publication of Confident Pluralism the decision seems in line with Inazu’s argument about the provision of ”generally available resources” to all types of organizations. Inazu does concede “Neither [the inclusion of dissent] premise is absolute. Inclusion will stop short of giving toddlers the right to vote or legally insane people the right to bear arms. Dissent will not extend to child molester or cannibals.” (16) I fully never figured out how he draws these lines, as he discusses other controversial topics that the majority of people strongly object to, but perhaps he only seeks to exclude when virtually everyone in society agrees.

The second part “canvass[es] the civic practices of confident pluralism that for the most part lie beyond the reach of the law.” (10) The second part centers around civic aspirations of tolerance, humility, and patience. As defined by Inazu, “Tolerance is the recognition that people are for the most part free to pursue their own beliefs and practices, even those beliefs and practices we find morally objectionable. Humility takes the further step of recognizing that others will sometimes find our beliefs and practices morally objectionable, and that we can’t always “prove” that we are right and they are wrong. Patience points toward restraint, persistence, and endurance in our interactions across difference.” (11). In this part, he describes the “hurtful insult” and the “conversation stopper” as speech we should aspire to avoid. (97-100). The hurtful insult includes terms like “fat, ugly, stupid, friendless.” (97). The aim of the conversation stopper is not primarily used to wound (as the hurtful insult is) but rather to shut down the conversation. Terms like “close-minded, extremist, heretical, and militant” fall in the conversation stopper category. While Inazu admits that those terms can be hurtful, he claims that they are mainly used to shut down reasoned debate.

In conclusion, this is a timely book and is well worth reading. At under 170 pages (including the notes), it is an extremely quick read, but the book is also worth pondering for extended time. Inazu encourages relationships across differences, such as Dan Cathy (Chick-fil-A) and Shane Windmeyer (Campus Pride) and former President Barack Obama and former Republican senator Tom Coburn. (124) I’d add the friendships of the late, conservative justice Antonin Scalia with his liberal colleagues on the Supreme Court Ruth Bader Ginsburg and Elena Kagan. With Inazu, I suggest face-to face conversations with friends with different, strongly-held beliefs. While social media and electronic communication can sometimes suffice between in-person meetings, tough topics are best handled around a table and after trust has been earned. Personally, I count my friendships with those who see the world very differently than I do as some of my most valuable relationships, and those friendships make it difficult to construct the straw men we see so frequently in TV news “debates.”

For more, Paul Horwitz (Alabama) shares some thorough and thoughtful notes on the book here

July 28, 2017 in Books, Constitutional Law, Current Affairs, Ethics, Haskell Murray | Permalink | Comments (0)