Wednesday, June 24, 2015

Toward a Better Understanding of the Business Judgment Rule . . . .

I had the privilege of sitting in on a stimulating paper session on "Private Fiduciary Law" at the Law and Society Association conference in Seattle last month.  The program featured some super work by some great scholars.  My favorite piece from the session, however, is a draft book chapter written by Gordon Smith that he recently posted to SSRN.  Aptly entitled The Modern Business Judgment Rule, the chapter grapples with the current state of the business judgment rule in Delaware by tracing its development and reading the disparate doctrinal tea leaves.  Here is a summary of his "take," as excerpted from his abstract (spoiler alert!):  "The modern business judgment rule is not a one-size-fits-all doctrine, but rather a movable boundary, marking the shifting line between judicial scrutiny and judicial deference."

In the mere 18 pages of text he uses to engage his description, analysis, and conclusion, Gordon gives us all a great gift. His summary is useful, his language is clear, and his analysis and conclusions are incredibly useful, imho.  I am no soothsayer, but I predict that this will be a popular piece of work.

Gordon posted on his paper the other day on The Glom.  He is inviting comments, and I know him to be serious in wanting to receive and incorporate them.  So, have at it!

June 24, 2015 in Business Associations, Corporate Governance, Corporations, Delaware, Joan Heminway | Permalink | Comments (2)

So Happy Together?! Me and You and Intellectual Property Law Reform

The Turtles continue to have salience in the music world.  Now, they also are a "happening thing" in legal circles.  Two recently published law review articles take on an interesting issue in copyright law relating to pre-1972 sound recordings that has been the subject of legal actions brought by members of The Turtles.  The articles (both of which use the song Happy Together, a Turtles favorite, in their titles) are authored by my University of Tennessee College of Law colleague, Gary Pulsinelli, and Georgetown University Law Center Professor Julie L. Ross.  

In his abstract, Gary summarizes the problem as follows:

Federal copyright law provides a digital performance right that allows owners of sound recordings to receive royalties when their works are transmitted over the Internet or via satellite radio. However, this federal protection does not extend to pre-1972 sound recordings, which are excluded from the federal copyright system and instead left to the protections of state law. No state law explicitly provides protection for any type of transmission, a situation the owners of pre-1972 sound recordings find lamentable. These owners are therefore attempting to achieve such protection by various means. . . . 

He concludes:

[S]tate law cannot provide the remedy that the owners of pre-1972 sound recordings seek. Their concerns, however, should not be dismissed. The exclusion of pre-1972 sound recordings from the federal system does deprive the owners of such recordings of royalties received by similarly situated owners whose recordings happen to have been made after that date. Because state law cannot remedy the problem, federal law must. Pre-1972 sound recordings should be brought into the federal system, on essentially the same terms as other works from the same era that are already protected by federal copyright.

Professor Ross reaches the same conclusion, as summarized in her abstract:

[G]iven the delicate balancing that has gone into Congress’ recognition of a limited digital performance right and creation of a compulsory statutory licensing system, any remedy for the inequity to owners of pre-1972 sound recordings must be left to Congress. Allowing individual courts in individual states to craft a patchwork of inconsistent remedies would disrupt the balance struck by Congress and interfere with the functioning of the compulsory license system for digital sound recording performances. This is a result that the Supremacy Clause does not permit.

Last week, I posted on federal securities law reform.  It looks like federal copyright law also is in need of some fixing . . . .  However, the copyright issue addressed in these two papers seems like an easy one to fix efficiently and effectively, unlike some of the federal securities law issues on the current reform agenda.  Regardless, I'll raise three cheers to fixing what's legally broken in the most efficacious way!

Imagine how the world could be
So very fine
So happy together . . . .

June 24, 2015 in Joan Heminway, Music | Permalink | Comments (0)

Wednesday, June 17, 2015

Tinkering With Securities Regulation: When Is Leaving "Good Enough" Alone?

In response to one of my posts last week, co-blogger Josh Fershee raised concern about making minor changes to securities regulation--in that case, in the context of the tender offer rules.  Specifically, after raising some good questions about the teaser questions in a marketing flyer regarding a program I am moderating, he adds:

This reflects my ever-growing sense that maybe we should just take a break from tweaking securities laws and focus on enforcing rules and sniffing out fraud. A constantly changing securities regime is increasingly costly, complex, and potentially counterproductive. 

Admittedly, I am not that close to this, so perhaps I am missing something big, but I’m thinking maybe we should just get out of the way (or, probably better stated, keep the obstacles we have in place, because at least everyone knows the course).

Although I pushed back a bit, I generally agree with his premise (and I told him so).  I will leave the niceties regarding the tender offer rule at issue for another day--perhaps blogging on this after the moderated program takes place.  But in the mean time, I want to think a bit more out loud here about Josh's idea that, e.g., mandatory disclosure and substantive regulation should be minimal and fraud regulation should be paramount.  Not, of course, a new idea, but a consideration that all of us who are honest securities policy-makers and scholars must address.

Continue reading

June 17, 2015 in Joan Heminway, Securities Regulation | Permalink | Comments (0)

Wednesday, June 10, 2015

Random Thoughts on the Beneficiaries of Corporate Board Decision Making

Last week, I attended the National Business Law Scholars Conference at Seton Hall University School of Law in Newark, NJ.  It was a great conference, featuring (among others) BLPB co-blogger Josh Fershee (who presented a paper on the business judgment rule and moderated a panel on business entity design) and BLPB guest blogger Todd Haugh (who presented a paper on Sarbanes-Oxley and over criminalization).  I presented a paper on curation in crowdfunding intermediation and moderated a panel on insider trading.  It was a full two days of business law immersion.

The keynote lunch speaker the second day of the conference was Kent Greenfield.  He compellingly argued for the promotion of corporate personhood, following up on comments he has made elsewhere (including here and here) in recent years.  In his remarks, he causally mentioned B corporations and social enterprise more generally.  I want to pick up on that thread to make a limited point here that follows up somewhat on my post on shareholder primacy and wealth maximization from last week.

Continue reading

June 10, 2015 in Business Associations, Conferences, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Joan Heminway, Litigation, Social Enterprise | Permalink | Comments (6)

Call for Papers - AALS Section on Securities Regulation

Courtesy of AALS Section on Securities Regulation Chair Christine Hurt:

Call for Papers

AALS Section on Securities Regulation - 2016 AALS Annual Meeting

January 6-10, 2016 New York, NY

The AALS Section on Securities Regulation invites papers for its program on “The Future of Securities Regulation: Innovation, Regulation and Enforcement.”

TOPIC DESCRIPTION: This panel discussion will explore the current trends and future implications in the securities regulation field including transactional and financial innovation, the regulation of investment funds, the intersection of the First Amendment and securities law, the debate over fee-shifting bylaws, the ever-expanding transactional exemptions including under Regulation D, and judicial interpretations of insider trading laws. The Executive Committee welcomes papers (theoretical, doctrinal, policy-oriented, empirical) on both the transactional and litigation sides of securities law and practice.

ELIGIBILITY: Full-time faculty members of AALS member law schools are eligible to submit papers. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses. NOTE FURTHER, AALS has announced reduced registration fees for junior faculty for the 2016 conference.

PAPER SUBMISSION PROCEDURE: Up to four papers may be selected from this call for papers. There is no formal requirement as to the form or length of proposals. However, more complete drafts will be given priority over abstracts, and presenters are expected to have a draft for commentators two weeks prior to the beginning of the AALS conference.

Papers will be selected by the Section's Executive Committee in a double-blind review. Please submit only anonymous papers by redacting from the submission the author's name and any references to the identity of the author. The title of the email submission should read: "Submission - 2016 AALS Section on Securities Regulation."

Please email submissions to the Section Chair Christine Hurt at: hurtc@law.byu.edu on or before August 21, 2015.

June 10, 2015 in Call for Papers, Joan Heminway, Securities Regulation | Permalink | Comments (0)

Friday, June 5, 2015

Evidence that Corporate Law Matters (!) (?)

This week, while preparing for and attending the National Business Law Scholars Conference, I have had to deal with a Tennessee corporate law "brushfire" of sorts generated by a Nashville Business Journal (NBJarticle published earlier this week.  The article, written by a Nashville lawyer, took a somewhat alarmist--and substantively inaccurate--view of a recent addition to the Tennessee Business Corporation Act drafted by the Business Entity Study Committee (BESC) of the Tennessee Bar Association, of which I am a member (and about which I have written here in the past, including here, here, and here).  Specifically, the author asserted that Tennessee's adoption of the text of Model Business Corporation Act Section 14.09 creates new liability for Tennessee corporate directors--especially directors of insolvent Tennessee corporations.  Somewhat predictably, calls and emails from directors, executives, and the Tennessee Secretary of State's office (which, itself, received many calls) ensued.

By design, and (we believe) by effect, the statutory section at issue clarifies the duties of directors of dissolved Tennessee corporations and establishes a safe harbor from liability.  Accordingly, the drafting team from the BESC (me included) believed we had to jump in and correct the mischaracterizations in the article, which the author apparently was unwilling to retract or self-correct.  The NBJ, greatly to its credit, understood our concerns and published a rebuttal from the BESC chair, which the BESC collaborated in drafting and co-signed.  In addition, the Chattanooga Times Free Press published an article that outlines the debate (in which the BESC chair and I am quoted).

So, folks do pay attention to corporate law--and they think it matters! Unfortunately, sometimes, they get it wrong. This leads to a number of lessons . . . .  Apropos of that thought, it's important that a lawyer measure twice and cut once, especially when writing a critical exposé intended and destined to receive attention from an important audience--one personally affected by the contents of the exposé.  Moreover, the need for experienced corporate legal counsel--lawyers steeped in the structure and function of corporate law--continues to be important in the drafting of, and public education regarding, complex corporate legal rules.

June 5, 2015 in Business Associations, Corporate Governance, Corporations, Current Affairs, Joan Heminway, Legislation | Permalink | Comments (0)

Wednesday, June 3, 2015

Shareholder Primacy/Wealth Maximization

I just returned early Monday from this year's Law and Society Association conference.  I presented my paper on LLC operating agreements as contracts--about which I later will blog here--on a panel as part of a CRN (Collaborative Research Network) on corporate and securities law.  I enjoyed the conference and being in Seattle (a city I rarely get a chance to visit).

I noticed something in a number of the sessions I attended, however, that I want to share here.  A number of scholars referenced, in their presentations or in comments to the presentations of others, "shareholder primacy."  As I listened, it was clear these folks were referring to the prioritizing of shareholder interests--especially financial interests--ahead of the interests of other stakeholders in corporate decision-making, rather than the elements of corporate control (few as there are) enjoyed by shareholders.  As I began to recognize this, several things happened in rapid succession.

First, I remembered David Millon's recent paper on this subject, which (among other things) tells a history of the use of the "shareholder primacy" term.  It's well worth a read.  Or a re-read!

Second, I remembered Steve Bainbridge's earlier work on this same topic. Ditto on that paper; read it or re-read it.  His chart in Figure 1 of that paper is an amazing visual summary.

Third, and largely as a result of those two papers, I wondered why we use the same term for these two aspects of corporate modeling (whether you label them them radical versus traditional shareholder primacy, shareholder protection versus monitoring, corporate ends versus means, or anything else).  It's confusing!  I kept wanting to interrupt, as folks were using "shareholder primacy," to ask: "which kind?" to move my understanding and analysis further forward faster.

Here's my pitch.  I advocate moving away from using the term "shareholder primacy" when a more specific term is available.  In the alternative, I advise defining the use of "shareholder primacy" in context when it is used, whether orally or in writing.  Am I alone in being unsettled by this?   Am I being too pedantic or controlling in my advocated solution or advice?  I welcome your views.

June 3, 2015 in Business Associations, Corporate Governance, Corporations, Joan Heminway | Permalink | Comments (5)

Wednesday, May 27, 2015

Social Enterprise, Brazilian Style

As a semi-closeted (now "out," I guess) foodie* and as a lover of "things Brazilian" (including Havaianas flip-flops and Veja sneakers, as well as churrascarias and caipirinhas), I read with interest a recent electronic newsletter headline about a thriving Brazilian chef.  I clicked through to the article.  I loved it even more than I had thought I would.

The article tells the story of an emergent Brazilian chef and restauranteur, Rodrigo Oliveira, and his flagship establishment (Mocotó), as promised.  That was great.  But that was not all.  The piece also told the story of a business run using a "holistic business model."

Today, Oliveira focuses on his employees as much as his customers. . . .  Oliveira pays for his employees’ part-time education. And their kids’ health care. And daily jiujitsu and yoga classes in the room he built upstairs. It’s a rarely encountered, holistic business model that contributes to his restaurant’s roaring success. . . .

 . . . 

Beneath the street level they’re boring out new dormitories for employees, for a quick nap and shower between jiujitsu, work and class. . . .

He also seems to be attentive to the greater local community beyond his customers and employees, preferring (to date) to expand his business locally rather than into larger metropolitan areas.  Good business?  Yes!  But it seems like more than that.  This business appears to have more than one bottom line!

Perhaps this is not a remarkable story, in the end.  Regardless, I wanted to share it.  Another Brazilian social enterprise, Ashoka, gets a lot of attention.**  But it's now clear to me that we can and should look beyond larger, storied examples of social entrepreneurship for other manifestations of social enterprise in action in Brazil.

 

*Yes, Steve Bainbridge, I do read  your wonderful posts on food and beverage pairings, including this one on my birthday earlier this month.

**Actually, much to my surprise, Ashoka is a U.S. organization that networks social enterprises across the globe.  So, it's not even Brazilian!  Having been in Rio teaching for a few summers and known of its presence there, I  assumed it was a Brazilian organization.  Please forgive the error.  Hat tip to co-blogger Haskell Murray for pointing it out to me.

 

May 27, 2015 in Entrepreneurship, Family Business, Food and Drink, Joan Heminway, Social Enterprise | Permalink | Comments (0)

Wednesday, May 20, 2015

Crowdfunding and the Public/Private Divide in U.S. Securities Regulation

Some of you may recall that I blogged last summer about a SEALS (Southeastern Association of Law Schools) discussion group on "publicness."  That post can be found here.  My contribution to the discussion group was part of a paper that then was a work-in-process for the University of Cincinnati Law Review that I earlier had blogged about here.

That paper now has been released in electronic and hard-copy format.  I just uploaded the final version to SSRN.  The abstract for the paper reads as follows:

Conceptions of publicness and privateness have been central to U.S. federal securities regulation since its inception. The regulatory boundary between public offerings and private placement transactions is a basic building block among the varied legal aspects of corporate finance. Along the same lines, the distinction between public companies and private companies is fundamental to U.S. federal securities regulation.

The CROWDFUND Act, Title III of the JOBS Act, adds a new exemption from registration to the the Securities Act of 1933. In the process, the CROWDFUND Act also creates a new type of financial intermediary regulated under the Securities Exchange Act of 1934 and amends the 1934 Act in other ways. Important among these additional changes is a provision exempting holders of securities sold in crowdfunded offerings from the calculation of shareholders that requires securities issuers to become reporting companies under the 1934 Act.

This article attempts to shed more light on the way in which the CROWDFUND Act, as yet unimplemented (due to a delay in necessary SEC rulemaking), interacts with public offering status under the 1933 Act and public company status under the 1934 Act. Using the analytical framework offered by Don Langevoort and Bob Thompson, along with insights provided in Hillary Sale’s work, the article briefly explores how the CROWDFUND Act impacts and is impacted by the public/private divide in U.S. securities regulation. The article also offers related broad-based observations about U.S. securities regulation at the public/private divide.

I hope that you are motivated to read the article--and that you get something out of it if you do read it.  The thinking involved in creating the article was often challenging (even if the expressed ideas may not reflect or meet that challenge).  Yet, writing the article, in light of the super work already done by Don Langevoort, Bob Thompson, and Hillary Sale, was joyful and illuminating for me in many ways.  

I often say that I stand on the shoulders of giants in my teaching and scholarship.  That was transparently true in this case.  If only all academic research and writing could be so rewarding.  

May 20, 2015 in Corporate Finance, Joan Heminway, Securities Regulation | Permalink | Comments (1)

Wednesday, May 13, 2015

Additional May Guest Blogger - Marcos Mendoza

I am delighted to introduce Marcos Antonio Mendoza as an additional BLPB guest blogger for this month.  He plans to do several posts here over the next few weeks.  I look forward to his contributions.

Marcos is a graduate of Washburn University School of Law (J.D.) and the University of Connecticut School of Law (LL.M.), with Honors.  His recent article in the Connecticut Insurance Law Journal, "Reinsurance as Governance: Governmental Risk Management Pools as a Case Study in the Governance Role Played by Reinsurance Institutions,"  is a continuance of “insurance as governance” scholarship through the empirical examination of reinsurer relationships.  With more than 25 years in the insurance and self-funded pooling industries, he currently is an assistant director with the third party administrator for one of the largest public-entity risk management funds in the U.S., based in Austin, Texas.

Marcos is a regular reader of--and sometimes-commenter on--the BLPB.  His perspectives have been quite valuable to me.  I hope that you will find his insights helpful to your work.

May 13, 2015 in Joan Heminway | Permalink | Comments (0)

2016 Emory Transactional Law and Skills Teaching Conference - Save the Date

Emory’s Center for Transactional Law and Practice cordially invites you to attend its fifth biennial conference on the teaching of transactional law and skills. The conference, entitled “Method in the Madness: The Art and Science of Teaching Transactional Law and Skills,” will be held at Emory Law, beginning at 1:00 p.m. on Friday, June 10, 2016, and ending at 3:45 p.m. on Saturday, June 11, 2016.

The registration fee for the conference is $189 and includes:

 Pre-conference lunch and snacks
 A pre-dinner reception on June 10
 Breakfast, lunch and snacks on June 11

We are planning an optional dinner for attendees on Friday evening, June 10, at an additional cost. Attendees are responsible for their own hotel accommodations and travel arrangements. Additional information on the optional dinner and accommodations to come.

A request for proposals will be distributed in the fall.

We look forward to seeing you in June of 2016!

Sue Payne
Executive Director and Professor in the Practice of Law
Center for Transactional Law and Practice
Emory University School of Law
sue.payne@emory.edu

May 13, 2015 in Conferences, Joan Heminway, Teaching | Permalink | Comments (0)

More on the Lady Vols and Trademark Abandonment

Ladyvolslogo

As some readers may recall, I posted twice back in November about The University of Tennessee, Knoxville's decision to drop the Lady Vols moniker and mark from all women's sports teams at UTK other than women's basketball.  The first post primarily wondered about university counsel's consideration of trademark abandonment in the rebranding effort.  The second post unpacked some additional issues raised by the first post and addressed some readers' and friends' concerns about my stance opposing the rebranding.

Interestingly, adverse reactions to the branding change, which is effective on July 1 (the beginning of the new academic year at UTK), have not died down since those original posts.  Letters from concerned citizens have been published in the local paper, and the paper even published a recent news article documenting some of the back-and-forth between Lady Vol fans and the campus administration. [Ed. Note: this article may be protected by a firewall.]  I have followed all of this with some interest.  

Honestly, part of me just cannot wait for the university to drop the mark altogether so that I can start using it to mass merchandise retro Lady Vols t-shirts, hats, and other merch.  Entrepreneurial pipe dream?  Maybe.  But it seems like a great idea, yes?

And there's a case involving Macy's that I will be following to help me to assess whether and, if so, when to launch my venture.  The case, covered in an article in the New York Law Journal on Monday, involves Macy's and its disuse/limited use of department store names forsaken as a result of its own rebranding efforts.  You know the names well if you're a person of a certain age--A&S, Filene's, Marshall Fields, Stern's, etc.  (I shopped at all of them.  Eek!)  The defendant in the action, Strategic Marks, claims the right to use these so-called "heritage marks" for bricks-and-mortar and online shopping services. Apparently, Strategic Brands filed intent to use applications and statements of use with the U.S. Patent and Trademark Office.  In the case, Macy's challenges Strategic Marks's right to use the heritage marks--asserting, among other things, that the marks have not, in fact, been abandoned (given that Macy's still uses them on the occasional plaque, t-shirt, and tote bag.)  The case had been scheduled for trial earlier this year, but the trial date was postponed to reflect new claims by Macy's regarding Strategic Marks's use of additional marks earlier registered by Macy's.

The case apparently raises some interesting trademark abandonment issues that also may apply to the Lady Vols rebranding effort as time moves on.  Among them: the length of time a mark must be in disuse before it is considered abandoned (although a presumption of abandonment apparently arises after non-use for three consecutive years), the types of behavior that constitute an intent not to resume use of a mark, and the effect of residual goodwill associated with a mark on claims of abandonment.  Although Macy's and Strategic Marks do not agree on the facts of the case, it is the law as applied to those facts that I am most interested in knowing.

Of course, since UTK is keeping the Lady Vols name for the women's basketball team, at least for now, the trademark abandonment issue is not ripe.  Accordingly, I cannot yet think about quitting my day job to promote the Lady Vols brand to all the passionate UTK women's sports fans out there.  But I am keeping my entrepreneurial eyes on this issue.  If they do away with tenure in The University of Tennessee system, for example, I may need an opportunity like this . . . !

May 13, 2015 in Case Law, Entrepreneurship, Joan Heminway, Sports | Permalink | Comments (0)

Wednesday, May 6, 2015

Mergers & Acquisitions: Three Legal Perspectives

Monday, I had the privilege of moderating a discussion on structuring merger and acquisition transactions that I had organized as part of a continuing legal education program for the Tennessee Bar Association.  Rather than doing the typical comparison/contrast of different business combination structures (with charts, etc.), I organized the hour-long discussion around the banter that corporate/securities and tax folks have in structuring a transaction.  We used the terms of a proposed transaction (an LLC business being acquired by a public corporation) as a jumping-off point.

The idea for the format came from a water cooler conversation--literally--among me (in the role of a corporate/securities lawyer), one of my property lawyer colleagues, and one of my tax lawyer colleagues.  The conversation started with a question my property law colleague had about the conveyance of assets in a merger.   I told him that mergers are not asset conveyance transactions but, rather, statutory transactions that have the effects provided for in the statute, which include a vesting of assets in the surviving corporation.  I told him that I call this "merger magic."  I showed him Section 259(a) of the Delaware General Corporation Law:

When any merger or consolidation shall have become effective under this chapter, . . . all property, real, personal and mixed, and all debts due to any of said constituent corporations on whatever account, as well for stock subscriptions as all other things in action or belonging to each of such corporations shall be vested in the corporation surviving or resulting from such merger or consolidation . . . .

We discussed the possibility of an assignment/transfer of assets by operation of law under that provision and more generally under Delaware law in connection with different types of mergers, including recent case law regarding reverse triangular mergers.  Ultimately, my property law colleague decided that a direct merger involved an asset sale by the target entity and a purchase transaction by the surviving corporation, as a matter of property law, notwithstanding my "merger magic" explanation I was forwarding as a descriptor under state corporate law.

The tax guy thought all this (both descriptions of a merger) was balderdash.  These descriptions were too complex and stilted for his taste.  Not to be outdone, he offered that all merger and acquisition transactions are either asset sales or sales of equity.  At least, he allowed, that's how federal income tax law looks at them . . . .  I told him that asset and equity sale transactions are joined by mergers (direct, reverse triangular, and forward triangular) and share exchange transactions (which are also statutory transactions, available in Tennessee and other Model Business Corporation Act states, but not available in Delaware) in the corporate lawyer's business combination toolkit.  I also noted that federal securities law voting and reporting requirements work off these different corporate law descriptors.

Fascinating!  Three lawyers, three different conceptions of business combination transactions.  The moderated discussion on Monday was, in effect, an attempt by me to recreate, albeit in a different form, parts of that conversation.  The discussion was, in my view, decently successful in achieving its limited purpose in the program.  Nevertheless, I really wish I had a transcription of that original conversation by the water cooler.  That was truly priceless . . . .

May 6, 2015 in Business Associations, Corporate Finance, Corporations, Joan Heminway, M&A | Permalink | Comments (0)

Wednesday, April 29, 2015

Tennessee . . . . The Business Law State? Yay For Us!

OK.  So, Tennessee is not Delaware.  But the Tennessee legislature and Supreme Court have been busy bees this spring on business law matters.   Here's the brief report.

In the last week of the legislative term, the Tennessee Senate and House adopted the For-Profit Benefit Corporation Act, about which I earlier blogged here, here, and here.  Although I remain skeptical of the legislation, it looks like the governor will sign the bill.  So, we will have benefit corporations in Tennessee.  We'll see where things go from there . . . .

The Tennessee legislature also passed a technical corrections bill for the Tennessee Business Corporation Act.  The bill was drafted by the Tennessee Bar Association's Business Entity Study Committee (on which I serve and to which I have referred in the past), a joint project of the Tennessee Bar Association's Business Law Section and Tax Law Section.  The governor has already signed this bill into law.

Separately, in a bit of a stealth move (!), the Tennessee Supreme Court recently announced the establishment of a business court, an institution many other jurisdictions already have.  The court is being introduced as a pilot project in Davidson County (where Nashville resides)--but only, as I understand it, to iron the kinks out before introducing the court on a permanent basis.  Interestingly, the Tennessee Bar Association Business Law Section Executive Council was not informed about the new court project until its public announcement in the middle of March.  Although we found that a bit odd, the "radio silence" is apparently attributable to the excitement of the Tennessee Supreme Court to get the project started effective as of May 1 and the deemed lack of need for a study on the subject before proceeding.  Regardless, I think it's safe to say that the bar welcomes the introduction of a court that specializes in business law cases as a matter of principle.  Again, we'll see where it goes from here.

A few reflections on all this follow.

Continue reading

April 29, 2015 in Business Associations, Corporate Governance, Corporations, Current Affairs, Joan Heminway, Litigation, Social Enterprise | Permalink | Comments (4)

Wednesday, April 22, 2015

Fall Business Law Conference in Venice

Marco Ventoruzzo (Penn State Law) alerts us to the upcoming international conference for the sixtieth anniversary of the Rivista delle società, which will be held in Venice, on San Giorgio Maggiore, on 13-14 November 2015. The title of the conference is "Rules for the Market and Market for Rules. Corporate Law and the Role of the Legislature." The program and information on how to register (and other logistics) can be found here.  It looks like only an Italian version of the program is available on the website as of the time this is being posted, but I have an English version.  So, please just contact me if you want one.

Marco notes that the conference, organized every ten years by the Rivista, is one of the major events for corporate law scholars and practitioners in Italy (and probably in Europe as a whole). He anticipates well over 300 participants from several European countries, the U.S., and elsewhere. He notes that, as an additional incentive to participate, the venue is probably one of the most spectacular that can be imagined.  San Giorgio is a tiny island in the Venice lagoon, just in front of Saint Mark's Square, that overlooks the entire Venetian waterfront. On the island, inhabited since Roman times, the conference will be hosted in a monastery partially designed by Andrea Palladio in the XVI century.

Hat tip to Marco for this announcement.

April 22, 2015 in Business Associations, Conferences, Corporate Governance, Corporations, Joan Heminway | Permalink | Comments (2)

The Continuing Job Search for 3Ls

There's good news and no news from me on the 3L job search front.

First, the good news.  One of the talented 3L business law students whom I have been mentoring in the Quest for Employment (Q4E) recently secured a position that is perfect for him.  He is a great fit for the firm and the position, and the firm is lucky to get him.  Yay for our team!

The rest of the news on the Q4E front is same-old, same-old.  Two other terrific 3L business law students who have had career/life changes that have led them to seek employment in new markets better suited to their professional or personal objectives are still on the market.  Of course, this is nothing new in Knoxville and much of the rest of the State of Tennessee, where many law firms cannot really assess their needs until much closer to the bar exam/hiring start date.  And these two promising lawyers-to-be are getting bites at the line.

Haskell earlier wrote a great post here on resumes and interviews, and I earlier wrote a companion post on cover letters.  But what happens after you've sent the cover letter and resume and have not been granted an interview?  Give up on the Q4E with those folks?  No way!  At least, that's not my advice . . . .

Continue reading

April 22, 2015 in Joan Heminway, Jobs, Law School | Permalink | Comments (0)

Wednesday, April 15, 2015

Makin' Tennessee For-Profit Benefit Corporation Sausage

"Laws, like sausages, cease to inspire respect in proportion as we know how they are made." -- John Godfrey Saxe

This is a brief legislative update on the progress of Tennessee's current bills, introduced in the house (HB0767--amendment not yet filed) and senate (SB0972), to institute the benefit corporation as a distinct for-profit business corporation in the State of Tennessee.  The links provided are to the current versions of the bill, which reflect a significant amendment, as described below.

As you may know from my prior posts (including here and here), I am a benefit corporation skeptic.  Please read those posts for details.  And within the Tennessee Bar Association (TBA) Business Law Section Executive Council and Business Entity Study Committee (our state bar committee that vets changes to Tennessee business associations and other business laws), I am not alone.  We have rejected bills of this kind several times over the past few years when the matter has been put to us for review by the TBA.  This year was no different.  We opposed the benefit corporation bills that were introduced in Tennessee this year, too.

What was different this time around, was that the folks at B Lab had gotten the attention of the Chamber of Commerce and Industry in Tennessee, who appear(ed) to have some misunderstandings about the current state of Tennessee corporate governance law and came to push for adoption of the bill in committee in both houses of the legislature. Given that we were late to the party and that the members of our TBA Council and Committee are very busy lawyers, our efforts to re-educate members of the relevant committees were not as effective as we would have liked.  But we ultimately were afforded two weeks to attempt to write an amended bill--one that better reflected Tennessee law and norms.

Now, any of you who have worked on a project like this before know that two weeks is not enough time to do a professionally responsible job in spotting and tracking down all of the issues that the introduction of a new business form routinely and naturally raises.  Heck.  We couldn't even get all the constituents around the table that we would want around the table to debate and review the legislation in two weeks!  [It seems hardest to find a plaintiff's bar lawyer to sit in with us, but we found a great one for our recent work on the Tennessee Business Corporation Act (TBCA).]  Our requests for more time to work on the proposed legislation were, however, rejected.

So, we set out to make a better sausage . . . .

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April 15, 2015 in Business Associations, Corporate Governance, Corporations, Haskell Murray, Joan Heminway, Social Enterprise | Permalink | Comments (0)

Wednesday, April 8, 2015

Media Coverage of Business Combinations

For thirty years, I have had a pet peeve about the media's routine reporting on mergers and acquisitions.  I have kept this to myself, for the most part, other than scattered comments to law practice colleagues and law students over the years.  Today, I go public with this veritable thorn in my side.

From many press reports (which commonly characterize business combinations as mergers), you would think that every business combination is structured as a merger.  I know I am being picky here (since there are both legal and non-legal common parlance definitions of the verb "merge").  But a merger, to a business lawyer, is a particular form of business combination, to be distinguished from a stock purchase, asset purchase, consolidation, or statutory share exchange transaction.

The distinction is meaningful to business lawyers for whom the implications of deal type are well known.  However, imho, it also can be meaningful to others with an interest in the transaction, assuming the implications of the deal structure are understood by the journalist and conveyed accurately to readers.  For instance, the existence (or lack) of shareholder approval requirements and appraisal rights, the need for contractual consents, permit or license transfers or applications, or regulatory approvals, the tax treatment, etc. may differ based on the transaction structure.

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April 8, 2015 in Business Associations, Corporate Finance, Corporations, Joan Heminway, M&A, Securities Regulation, Teaching | Permalink | Comments (1)

Saturday, April 4, 2015

Assistant Director of the Center for Transactional Law and Practice - Emory Law School

Emory Law School seeks an Assistant Director of the Center for Transactional Law and Practice to teach in and share the administrative duties associated with running the largest program in the Law School.  Each candidate should have a J.D. or comparable law degree and substantial experience as an attorney practicing or teaching transactional law.  Significant contacts in the Atlanta legal community are a plus.

Initially, the Assistant Director will be responsible for leading the charge to further develop the Deal Skills curriculum.  (In Deal Skills – one of Emory Law’s signature core transactional skills courses – students are introduced to the business and legal issues common to commercial transactions.)  The Assistant Director will co-teach at least one section of Deal Skills each semester, supervise the current Deal Skills adjuncts, and recruit, train, and evaluate the performance of new adjunct professors teaching the other sections of Deal Skills.

As the faculty advisor for Emory Law’s Transactional Law Program Negotiation Team, the Assistant Director will identify appropriate competitions, select team members, recruit coaches, and supervise both the drafting and negotiation components of each competition.  The Assistant Director will also serve as the host of the Southeast Regional LawMeets® Competition held at Emory every other year.

Additionally, the Assistant Director will be responsible for the creation of two to three new capstone courses for the transactional law program.  (A capstone course is a small, hands-on seminar in a specific transactional law topic such as mergers and acquisitions or commercial real estate transactions.)  The Assistant Director will identify specific educational needs, recruit adjunct faculty, assist with curriculum design, and monitor the adjuncts’ performance.  

Besides the specific duties described above, the Assistant Director will assist the Executive Director with the administration of the transactional law program and the Transactional Law and Skills Certificate program.  This will involve publicizing the program to prospective and current students, monitoring the curriculum to assure that students are able to satisfy the requirements of the Certificate, and counselling students regarding their coursework and careers.  The Assistant Director can also expect to participate in strategic planning, marketing, fundraising, alumni outreach, and a wide variety of other leadership tasks.

APPLICATION PROCEDURE:  

Emory University is an equal opportunity employer, committed to diversifying its faculty and staff.  Members of under-represented groups are encouraged to apply.  For more information about the transactional law program and the Transactional Law and Skills Certificate Program, please visit our website at:  

http://law.emory.edu/academics/academic-programs/center-for-transactional-law-and-practice/index.html

To apply, please mail or e-mail a cover letter and resumé to: 

 

Kevin Moody

Emory University Law School

1301 Clifton Road, N.E.

Atlanta, GA  30322-2770

sue.payne@emory.edu.

 

APPLICATION DEADLINE:  April 30, 2015

 

[Hat tip to Bobby Ahdieh for this post]

April 4, 2015 in Joan Heminway, Jobs, Law School, Teaching | Permalink | Comments (0)

Thursday, April 2, 2015

Why Do Social Enterprise Entrepreneurs Want Benefit Corporations?

In connection with the current legislative debate on benefit corporations in Tennessee (which has been gathering momentum since I last wrote on the topic), I have repeatedly asked about the impetus for the bill.  Of course, there is the obvious "push" for benefit corporation legislation by the B Lab folks, who have gotten the ear of folks at the Chamber, convincing them that the legislation is needed in Tennessee to protect social enterprise entities from the application of a narrow version of the shareholder wealth maximization norm (a conclusion that I dispute in my earlier post).  But what else?  What real parties in interest in Tennessee, if any, have expressed a desire that Tennessee adopt this form of business entity?

There is anecdotal information from one venture attorney that some Tennessee entrepreneurs have indicated a preference for the benefit corporation form and have specifically requested that their business be organized as a Delaware benefit corporation.  Leaving aside the Delaware versus Tennessee question, why are these entrepreneurs looking to organize their businesses as benefit corporations?  Where does this idea come from?

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April 2, 2015 in Business Associations, Corporate Finance, Corporate Governance, Corporations, Entrepreneurship, Haskell Murray, Joan Heminway, Social Enterprise | Permalink | Comments (4)