Wednesday, April 23, 2014

Racial Identities of Corporations

In March, the Fourth Circuit held in Carnell Construction Corp. v. Danville Redevelopment & Housing Authority, that racial identity can be imputed to a corporation for purposes of standing under Title VI, citing to case precedent from the several circuits allowing 1981 claims to be raised by corporations. 

“[W]e observe that several other federal appellate courts have considered this question, and have declined to bar on prudential grounds race discrimination claims brought by minority-owned corporations that meet constitutional standing requirements.” 

The Fourth Circuit had to deal with the following language in Arlington Heights, 429 U.S. 252, 263 (1977): “As a corporation, MHDC has no racial identity and cannot be the direct target of the petitioners' alleged discrimination. In the ordinary case, a party is denied standing to assert the rights of third persons.” In Arlington Heights, the Supreme Court however did not need to “decide whether the circumstances of this case would justify departure from that prudential limitation and permit MHDC to assert the constitutional rights of its prospective minority tenants. For we have at least one individual plaintiff who has demonstrated standing to assert these rights as his own.” (citations omitted).  The dicta in Arlington Heights was not a barrier to imputing a racial identity to the corporation in the Fourth Circuit case.

In a clear statement, the Fourth Circuit concluded that:

“We agree with the Ninth Circuit that a minority-owned corporation may establish an “imputed racial identity” for purposes of demonstrating standing to bring a claim of race discrimination under federal law. We hold that a corporation that is minority-owned and has been properly certified as such under applicable law can be the direct object of discriminatory action and establish standing to bring an action based on such discrimination.”

Chief Justice Roberts was concerned about the connection of racial identities for corporations and corporate free exercise of religion as raised in the Hobby Lobby and related cases.   Note that fellow BLPB blogger Josh Fershee wrote about the racial identity of a corporation on BLPB here arguing why religious discrimination claims by corporations should be allowed and how the analysis would work.  Professor Bainbridge weighed in on the issue as well.

Here is my best response as to why holding that corporations can have a racial identity is not necessarily fatal to the claim that corporations cannot have a religious identity for purposes of free exercise under the 1st Amendment, and why religious discrimination cases for corporations may also be more difficult than racial discrimination cases.  

Line drawing.  In the Carnell case as well as in others, the corporations at issue had been certified as a minority/women owned business at the state level, which is treated as a form of pre-requisite for such standing to assert a racial discrimination claim.  There is no similar bright line test or religious entity process for a for-profit corporations.  Indeed the very process of such a certification may implicate other 1st Amendment protections for freedom of speech and association.

Third Parties & Equity. Second, imputing the racial identity to the corporation for purposes of a Title VI claim of racial discrimination upholds the minimum anti-discrimination standard against third parties.  So in the race cases, the identity of the owners is imputed to the corporation to prevent third parties from evading a legal standard.  In the corporate free exercise of religion context, the owners are requesting that their individual religious beliefs be imputed to the corporation to allow it to evade compliance with a law.  Anti-discrimination laws are applied generally and don’t allow a person to discriminate whether it is with an individual or through a corporation rather than exempting a corporation from a neutrally-applied, generally applicable law. 

This last points get to the debate, in part, about the relevance of reverse veil piercing (RVP) on which Professor Stephen Bainbridge has advocated as a framework to resolve the mandate issue in Hobby Lobby. The corporate veil is rejected in both CVP and RVP when equity requires and that is usually dependent upon a third party interest that is best protected by rejecting the legal fiction of a separate corporate form.  In the anti-discrimination/racial identity there is an equitable argument that the third party cannot discriminate against the corporation simply because it is owned by minorities.  What is the equitable argument in Hobby Lobby?  The fairness rationale is weakened here, especially in light of the interests of the 13.5K employees receiving health care coverage as a form of compensation for their work for the company.  Instead RVP, it must rest, if at all, on the public policy justification advanced by Professor Bainbridge.   But again, the public policy argument cuts both for and against RVP.  There is a public policy argument in protecting/promoting religious freedom as there is in facilitating access to health care, including forms of health care that Congress has determined to be necessary for women (and families) under the ACA.

 -Anne Tucker

April 23, 2014 in Business Associations, Anne Tucker, Constitutional Law, Corporations, Current Affairs, Joshua P. Fershee | Permalink | Comments (0)

Tuesday, April 22, 2014

How the Same-Sex Marriage Debate Can Lead to Better Businesses

Over at, a number of leading thinkers, including some leading business law folks such as Richard Epstein and Jonathan Adler, among others, have signed a public statement: Freedom to Marry, Freedom to Dissent: Why We Must Have Both.  Following is a portion of the statement:

The last few years have brought an astonishing moral and political transformation in the American debate over same-sex marriage and gay equality. This has been a triumph not only for LGBT Americans but for the American idea. But the breakthrough has brought with it rapidly rising expectations among some supporters of gay marriage that the debate should now be over. As one advocate recently put it, “It would be enough for me if those people who are so ignorant or intransigent as to still be anti-gay in 2014 would simply shut up.”


The signatories of this statement are grateful to our friends and allies for their enthusiasm. But we are concerned that recent events, including the resignation of the CEO of Mozilla under pressure because of an anti-same-sex- marriage donation he made in 2008, signal an eagerness by some supporters of same-sex marriage to punish rather than to criticize or to persuade those who disagree. We reject that deeply illiberal impulse, which is both wrong in principle and poor as politics.

For those who don’t know, former Mozilla CEO Brendan Eich resigned following the public outcry when it was revealed that he had donated $1,000 to support Proposition 8, a 2008 California ballot initiative and constitutional amendment designed to ban same-sex marriage in the state.

To be clear on my stance: I strongly support same-sex marriage, and I fundamentally disagree with Prop 8.   Still, punishing people, as opposed to criticizing people, for contrary and even wrong-headed political views is neither productive nor proper. (Nonetheless, there are multiple examples of people who felt Eich needed to resign. See, e.g.,  here, here, and here.) 

Admittedly, if it’s clear that the head of any organization, whether it is a profit or nonprofit entity, doesn’t further the goals of the organization, then there is a bad fit. Furthermore, this isn’t about Mr. Eich’s free speech rights in that there is no government actor here. This was a private response to a private person’s actions. Mozilla has the power to act to replace Mr. Eich, and members of the public have a right to call for his ouster.  It just doesn’t make it inherently right or wise.

Certainly, one can imagine a scenario where a CEO’s prior political or organizational giving would create problems for the organization.  For example, an environmental organization may not be comfortable with a CEO who had given money to a group fighting climate legislation. But, in that circumstance, the hiring body, and likely the CEO, would, or at least should, have known that support for climate change initiatives would be expected as part of the job.  Top employees often become the face of the organization, and that comes with job, but if a particular political view is deemed necessary for the job, it would help if the CEO knew it during the interview process.  

Even if Mozilla was responsible for the mistake (in hiring someone with political views that were not accepted to many employees and customers), as an entity, the company was not improper to respond in what it deemed to be in the best interest as the organization.  Just as important, though, is the community response to Mozilla as an entity.  The free market allows us all to choose with whom we wish to do business.  But when we make such decisions, we need to be careful about who we are punishing and why.

People have a right to be upset and to protest Mr. Eich’s views.  I think Prop 8 was dead wrong, and I don’t like that anyone supported it.  Still, I don't think calling for Mr. Eich or anyone else to lose their job is proper simply because I disagree with their views.   I would feel differently if there were evidence that Mr. Eich discriminated against gay employees. There just doesn't seem to be any support for that proposition.

We need to be careful to avoid a world where every portion of what we do becomes politicized and polarized.  Although there are core values each of us holds, we should also recognize that not everyone shares all of our core values, all of the time.  Nor can they.  My wife and I agree on a lot of things, and it is a big reason why we’re together.  Still, some of my best learning has been when we don’t agree. Sometimes I change my mind, and other times I don’t, but even then I have learned more about my views and why I hold them. 

I don’t want to live in a world where politicians and news outlets and companies operate in lockstep to a specific set of ideals.  There are too many examples of that already to make me comfortable.  I don’t want to choose only from a Republican burger joint or a Democratic sub shop. We need more.  We need a populist pizza place, and a libertarian ice cream shop, and everything in between.  In my view, the litmus test should be whether people do a good job at doing their job, and whether they treat others well (employees and customers), regardless of their ideological differences.  

Open public discourse is a right under our Constitution, but it is not socially required. When respectful and thoughtful, open discourse helps all of us be better citizens and better people. If we commit ourselves as individuals to respecting others and listening, even when (and especially when) we disagree, good things will follow.  It is one thing to dismiss views with which we disagree; it is another to dismiss, out of hand, the people who hold such views.  For all the complaints about the evils of business, I have a suspicion that if we expected more of ourselves, businesses would follow our lead.

April 22, 2014 in Corporations, Current Affairs, Joshua P. Fershee, Religion, Social Enterprise | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Corporations and Governments Don't Actually Do Anything

They really don't. 

To be clear, this is not a post bashing corporations (or government). It's not really extolling the virtues of corporations, either. Instead, it's just to make the point that, notwithstanding Citizens United or Hobby Lobby and other cases of their ilk, the idea that corporations are people is still a legal fiction.  A useful and important one, but a fiction nonetheless.  

On April 11, Corey Booker posted the following on Facebook:

In awful years past, corporations polluted the Passaic river to the point that it ended the days where people could eat from it, swim in it, and use it as a thriving recreation source. Today we announced a massive initiative to clean the Passaic river and bring it back to life again. The tremendous clean up effort will create hundreds of jobs and slowly over time restore one of New Jersey's great rivers to its past strength and glory.

The river needs the clean-up, and I applaud the effort. Still, the reality is corporations did not pollute the Passaic River, at least not literally.  People working for the corporation did. It is agency law that allows a corporation to act in the first place, because the fictional corporate person needs a natural person to act.  (For a simple explanation, see here.) The corporation is liable for the harm caused by its agents. (And, in certain cases, the individuals would also be liable directly if their actions were, for example, illegal.)

Government doesn't really do anything, either.  The clean-up proposal that Booker was referencing is a $1.7 billion Superfund river remediation project that was proposed by the EPA.  Of course, government works through agents, too, and there are real people behind the proposal.  Real people, through concerted action between corporations and government will actually do the clean up, too.  

This is a point I have made before, but I think it's an important one.  We need to remember that people are at the root of all corporate and government actions.  This is important in two directions. First, for those criticizing a corporate or government action, it is critical for them to remember that there are people carrying out the action.  A corporation or a government may act in an inappropriate manner, but it is also likely that the person carrying out the action is doing so with the intent to do well in the capacity in which they were fired.

Second, for people working for corporations or governments it is equally critical that they recognize that the their employer doesn't carry out actions without their help.  That is, people who work for corporations or governments must recognize that they are carrying out the will of the entity they represent (and they should hold themselves responsible for doing do).  Perhaps it is their boss who gave them the order (also a natural person), or even the board of directors (a group of natural people), but the charge is in fact, if not legally, being given by natural people.   

Why does this matter?  When we vilify or exalt the action of entities (like corporations or governments) we disconnect ourselves from the realities of the world, or at least our responsibilities within it.  We become more susceptible to Groupthink in either direction.  We are able to shirk our responsibilities -- as employees, as agents, as lawyers, as voters, as shareholders, as people -- to make decisions the are conscious of the world around us.  In our daily lives and in our representative capacities, we all must make difficult decisions from time to time.

Sometimes, tough decisions require a cost-benefit analysis that means someone else will be worse off because of our decision.  It's hard, but it's what people do. Often, it's what we must do.  In doing so, though, it is essential that we hold ourselves and other people accountable as people for what we've done. Regardless of the rhetoric we often hear, the amalgamations of people who make up both governments and corporations have done some amazing and impressive things.  Both have also done some horrendous and outrageous things.  The people in charge, and the people who follow, are accountable in both circumstances. 

In this instance, I am making a conceptual argument, not a legal one.  There are legal regimes, sometimes effective, sometimes not, for holding both entities and their agents accountable for their actions (and rewarding them, where appropriate).  How we think about corporations and governments and each other, though, has a broader impact.  Without us -- all of us -- there are no corporations and there is no government.  If we remember that, our responses to challenges are more likely to be more targeted, more effective, and more reasonable.  Just because we don't always agree, doesn't mean we aren't all in this together.  Whether we like it or not, we are, and it's time we acted like it. 

April 15, 2014 in Corporations, Current Affairs, Ethics, Joshua P. Fershee, Social Enterprise | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 8, 2014

FOMO of FOMO and the Paradox of Choice

So, I am the fourth of our bloggers (here, here, and here), among others, to write on FOMO (fear of missing out), and I almost didn’t write this post for fear that my FOMO on the topic was the motivation:  FOMO of FOMO.  I decided that wasn't the reason and that it was worth writing (at least for me).

FOMO has always been an issue for me.  I have always been a researcher, and I don’t mean just in the scholarly sense.  When I look for a car (and I really like cars), everything is on the table. Few people know more about the various options and configurations of vehicles on the market than I do.  It shows when I shop; I have never bought a car from someone who knows more about the product than I do.  (They know more about selling cars than I do, but not about the cars themselves.)

 This need to try to get it right (a common cause of FOMO) has mixed returns.  I never blow the budget on the car, which means I always know what I am missing.  Thus, my FOMO ensures in some instances that I will, in fact, miss out. When it comes to cars, this is not really that important in the big scheme of things. But for other personal and professional decisions, it can have an impact.

 This concept has been explained well by Psychologist Barry Schwartz.  I read his book, The Paradox of Choice: Why More is Less in 2010, and it helped explain a number of things to me.  (You can also see  Schwart’z TED Talk here.) I can’t say Schwartz helped me get rid of my FOMO, but it did help understand what’s going on. He explains:

Part of the downside of abundant choice is that each new option adds to the list of trade-offs, and trade-offs have psychological consequences.   The necessity of making trade-offs alters how we feel about the decisions we face; more important, it affects the level of satisfaction we experience from the decisions we ultimately make.

I think such decisions can be especially hard for academics, though I appreciate what good fortune I have to have this “problem.”  One of the reasons I wanted to become a law professor was so I could make the choices I face so regularly. I have great latitude, if not full freedom to choose what I research, what I write about, and what I teach.  In practice, I did not have that kind of freedom, most of the time, and one of the many things I love about my job is that freedom. Still, as Schwartz explains, such options come with psychological consequences.

I also have flexibility in my job that I never had before.  It’s easier, though not always possible, for me to participate in my children’s lives at school.  I want this, and I often have the option to write or prepare for class in off hours so I can participate in their activities. Many people don’t have that flexibility, and I know I am lucky.  I appreciate that flexibility, but it still points out more clearly when I have prioritized either work or family, and that’s not always pleasant in either direction.  My wife and I are both on the faculty, too, so there are times when one of us must miss out on something professionally because of family obligations, at least when we aren’t able to make other arrangements.

I try to keep in mind that the whole FOMO concept, while real, is also in many ways a problem of relative affulence.  We are fortunate to be healthy, and have healthcare. I don’t have to worry about whether we have food, clothes, or shelter. I get to worry about whether I should do another edit, write another chapter, revamp my lesson plan, or go to my son or daughter’s read aloud.  I am now trying to remember how fortunate I am to have such choices in the first place rather than worry about the choice itself. As a friend and colleague likes to say, Good Enough is the New Perfect

In closing, I’ll go back to some advice Barry Schwartz gives on avoiding social comparisons in assessing ourselves.  He says:

1. Remember that “He who dies with the most toys wins” is a bumper sticker, not wisdom.

 2. Focus on what makes you happy, and what gives meaning to your life. 

April 8, 2014 in Joshua P. Fershee, Law School, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Courts Should Tread Lightly When Disregarding (Even Dissolved) Entities

As I discussed briefly last week, I think reverse veil piercing in the Hobby Lobby case is a bad idea, in part because it uses a doctrine designed to prevent fraud to impute characteristics to the entity. One of the reasons this concerns me is that there are other recent decisions that imply courts may be missing the point about the separate and distinctive nature of entities, even as the individual rights of entities appear to be expanding. 

In a recent West Virginia case, for example, a lower court allowed a wildly improper use of the statutory provision, “Unknown claims against dissolved corporation” to be the basis what became a $25 million jury award for punitive damages for emotional impact to a former entity’s shareholders. In the Order Addressing AIG Posttrial Motions (pdf) of May 1, 2012 (“Order”) Ryan Environmental, Inc. v. Hess Oil Co., Inc., Civil Action No. 10-C-20, the court adopted a plaintiff’s argument that, under W. Va. Code § 31D-14-1407(d), “the interests of the shareholders are joined with the interests of the corporation after a corporation’s dissolution.” See Order at 7.  The court later explained its view that, because the plaintiff’s former entity was dissolved, damages and hardships attributable to the shareholders were a sufficient basis for the defendants’ liability directly to the shareholders and that such damages and hardships did not need to attributed to the former entity.  That is, the defendants’ liability ran to the entity’s shareholders post-dissolution even though the harms claimed were never attributable to the entity.  Click below to read more.

Continue reading

April 1, 2014 in Business Associations, Corporations, Joshua P. Fershee | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

Last Minute Hobby Lobby Thoughts & Why Reverse Veil Piercing Isn’t the Answer

With oral arguments today in the Hobby Lobby case, I thought I’d pile on a few last thoughts:

(1) As I explained here, entities should be able to take on a racial, religious, or gender identity in discrimination claims.  I would add that I feel similarly about sexual orientation, but (though I think it should be) that is still not generally federally protected. To the extent the law otherwise provides a remedy, I’d extend it to the entity. 

(2) It is reasonable to inquire, why is discrimination different than religious practice?  For me, I just don’t think religious exercise by an entity is the same as extending discrimination protection to an entity.  There is something about the affirmative exercise of religion that I don’t think extends well to an entity.   That is, discrimination happens to a person or an entity. Religious practice is an affirmative act that is different.  Basically, reification of the entity to the point of religious practice crosses a line that I think is unnecessary and improper because discrimination protection should be sufficient.

As a follow up to that, I also think it's a reasonable question to ask: Why is religion different than speech? To me it is different because entities must speak, but entities don’t have to practice religion.  The entity needs speech to conduct business. A public entity speaks in its public filings.  Speech is not just something an entity could do. It is something it must do.  Religion, at the entity level is not necessary. 

(3) Reverse piercing is not as good a solution as it might appear.  Professor Bainbridge suggests that reverse veil piercing is one way in which the religion of the shareholders could be used to justify extending a religious identity to the Hobby Lobby entity, thus allowing the entity to object to certain provisions of the federal healthcare mandate.  His argument is, as usual, reasonable and plausible. Still, as explained above, I don't think this is necessary. 

More important, though, I don’t like expanding the use of any form of veil piercing. Veil piercing is supposed to be used (at least in my view) solely as a heightened level of fraud protection.  It is already used too often and too haphazardly, and further degradation of the line between the entity and others is a dangerous proposition, regardless of the purpose.  That is, as people (and courts) get more comfortable with disregarding the entity, they are more likely to disregard the entity.  As a general proposition, I think that’s a bad outcome. That alone is reason enough for me to hope the Court will pass on reverse veil piercing as a potential remedy. 

March 25, 2014 in Business Associations, Agency, Joshua P. Fershee, LLCs, Religion, Unincorporated Entities | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 18, 2014

Beyond Hobby Lobby: Protecting Entities from Discrimination

Ed Whelan at National Review Online (h/t: Prof. Bainbridge) asks, in light of a recent Fourth Circuit opinion, “Will those who (wrongly) think that for-profit corporations are incapable of exercising religion for purposes of RFRA object as vigorously to the concept that for-profit corporations can have a racial identity for purposes of Title VI? If not, why not?”

I have been following the Hobby Lobby case with interest, though I am just delving into its depths now.  After starting through the various amicus briefs, my initial reaction is that the law has not evolved to where it needs to be with respect to protecting those engaging in the widespread use of entities.  I, as is often the case, my intitial reaction is that the answer to Mr. Whelan’s question is somewhere in the middle: I think for-profit corporations are capable of exercising religion under RFRA, but in this case I don’t see the necessary substantial burden, at least when balanced with an individual’s right to make such decisions, to carry the day. (Reasonable minds can disagree on this, but that’s my take). 

Taking a broader look, though, view entities should be able to take on the race, gender, or religion of its primary shareholders (or members) in proper circumstances to protect against discrimination.  The Fourth Circuit opinion states:  “We hold that a corporation can acquire a racial identity and establish standing to seek a remedy for alleged race discrimination under Title VI.”  Seven other circuit courts “have concluded that corporations have standing to assert race discrimination claims.”  This seems proper, because a minority-owned company might be denied a contract or be treated differently in the execution of a contract because of the race of the primary shareholders.  It would be improper to deny protections for the shareholders/members just because they chose to avail themselves of entity protections to conduct their business.

The same should be true in cases of religion and gender.  Suppose, for example, an all-female construction company were denied a bid because the city seeking the project thinks construction is “man’s work to be done by men.”  Similarly, protections should be available if a Catholic-owned company were to lose a bid because the county seeking the bid was run by people who didn’t “trust Catholics to finish anything on time.”  (Disclosure: I was raised Catholic, and while I most certainly don’t speak for any other Catholics, my comfort level leads me to use Catholics in such examples.)

Thus, an entity should be able to take on the race, gender, or religion of the shareholders/members to fight cases where the same discrimination against an individual would stand. Obviously, then, having a member of a certain race, gender, or religion as a shareholder, member, director, or employee would not be sufficient to make the claim.  The entity would also have to demonstrate: (1) that the alleged discrimination was predicated on race, gender, or religion, and (2) the entity (and not just certain individuals) was identified with the group against whom the discrimination was targeted. 

In the Hobby Lobby case, then, under this rubric I think the claim would fail because the entity would not be able to demonstrate they have satisfied the first test.  Regardless of what one thinks of the healthcare law, the law was not designed to discriminate against certain religions (or race or gender).  The law also does not mandate any individual course of action, but merely requires that access be provided to certain healthcare options. (That is, it mandates access, not use.) 

This is not the current state of the law, of course.  Still, it seems to me that the proper way forward is to recognize that entities can often take on identities of those running them, but that protections should only be available where the entity’s identity was targeted for harm because of that identity, and not an arguable result of another non-identity-based decision. 

March 18, 2014 in Business Associations, Corporations, Entrepreneurship, Joshua P. Fershee, LLCs, Religion | Permalink | Comments (4) | TrackBack (0)

Tuesday, March 11, 2014

Looking at Law and Regulation Through Shale Oil & Gas Regulation

I study both business law issues and shale oil and gas regulation, and I see a lot of overlaps between the two. Big business, is after all, big business.

The political intensity related to shale oil & gas development, is a concentrated version of many other types of regulation, such as we related to securities and publicly traded corporations.  I am currently finalizing an article regarding the Pennsylvania Supreme Court's decision in Robinson Township v. Commonwealth, which overturned Act 13, the state's law designed to promote hydraulic fracturing and horizontal drilling.  In major part, Act 13 largely eliminated local zoning of oil & gas development.  

David B. Spence's article, Responsible Shale Gas Production: Moral Outrage vs. Cool Analysis, provided one good source for analyzing the regulatory backdrop of shale law and regulation.  I recommend it highly. 

Here's the abstract:      

The relatively sudden boom in shale gas production in the United States using hydraulic fracturing has provoked increasingly intense political conflict. The debate over fracking and shale gas production has become polarized very quickly, in part because of the size of the economic and environmental stakes. This polarized debate fits a familiar template in American environmental law, pitting “cool analysis” against “moral outrage.” Opponents of fracking have generally framed their arguments in moral or ethical terms, while systematic research is beginning to build a more careful and nuanced understanding of the risks associated with shale gas production (though the record is far from complete). All of which makes the question of how to produce shale gas “responsibly” – corporate social responsibility being the focus of this symposium – very difficult to answer. This essay argues that: (i) because shale gas production entails difficult to measure and unevenly distributed costs and benefits, there is no clear responsible (read: ethically preferable) set of limitations that we ought to impose on shale gas production; and (ii) moral outrage is obscuring (or influencing perceptions of) empirical facts in the shale gas policy debate. More specifically, well-established behavioral heuristics – particularly, confirmation biases and the cultural cognition of risk – are impeding the development of a common understanding of the empirical facts necessary to guide policymaking. Recognizing this, policymakers must resist political pressures and work that much harder to ground their decisions in empirically-demonstrated facts – namely, those produced by sources that are less susceptible to these heuristics and biases. Thus, information generated by rigorous, empirical analyses performed by academic or government sources ought to be credited over anecdotes or studies associated with industry or NGOs that have staked out a clear pro or con position in the fracking debate. Indeed, responsible fracking decisions ought to consider all of the consequences of permitting, regulating or banning shale gas production, including the relative risks of shale gas production compared with the relevant energy alternatives.

March 11, 2014 in Current Affairs, Joshua P. Fershee, Securities Regulation | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 4, 2014

WVU LLM: Energy Business Law & Fellowship Opportunity

West Virginia University has a new LLM program in Energy & Sustainable Development Law. At the moment, the program is open only to those with a U.S. law degree.  The degree program capitalizes on a wide and deep range of expertise at WVU Law in a one of the nation's most energy-rich states.  (Full bias  disclosure: I direct the program.)

All students in the program are required to take both the Energy Law Survey and the Environmental Protection Law course. This is because we firmly believe that all lawyers connected to the energy sector need to have a firm grasp on both energy law issues and  envirnonmental law issues. Both courses touch on each other's area, but having both courses as a base will lead to better prepared professionals, whether the graduate wants to work for industry, an NGO, or a regulator. 

We also require some form of experiential learning, a portfolio of written work, and a Research Paper or Field-Work Project. Full details of the program are here.  For this venue, and in my area of interest, I will note our business offerings.  I teach my Energy Business: Law & Strategy course, details here, in addition to my Business Organizations course and the Energy Law Survey.  We also have great variety of courses in energy law, environmental law, and sustainable development law.  

In addition, we have a fellowship opportunity in the Land Use and Sustainable Development Clinic. This fellowship is a part-time (at least twenty hours per week), two-year position from August 2014 through July 2016. The Fellow will receive an annual stipend of $20,000 and tuition remission for the LL.M. program. The Fellow would take 6-7 credits per semester allowing time for part-time work at the Clinic.  Details available here

In a world where the Future of Business is the Future of Energy, this program is one option to consider. 

March 4, 2014 in Current Affairs, Entrepreneurship, Joshua P. Fershee, Teaching | Permalink | Comments (0)

Monday, March 3, 2014

Call for Papers: How and Why to Teach Accounting, Finance, and Tax

Business law has a broad overlap with tax, accounting, and finance.  Just how much belongs in a law school course is often a challenge to determine.  We all have different comfort levels and views on the issue, but incorporating some level of financial literacy is essential.  Fortunately, a more detailed discussion of what to include and how to include it is forthcoming.  Here's the call: 

Call For Papers

AALS Section on Agency, Partnerships LLCs, and Unincorporated Associations

Bringing Numbers into Basic and Advanced Business Associations Courses: How and Why to Teach Accounting, Finance, and Tax

2015 AALS Annual Meeting Washington, DC

Business planners and transactional lawyers know just how much the “number-crunching” disciplines overlap with business law. Even when the law does not require unincorporated business associations and closely held corporations to adopt generally accepted accounting principles, lawyers frequently deal with tax implications in choice of entity, the allocation of ownership interests, and the myriad other planning and dispute resolution circumstances in which accounting comes into play. In practice, unincorporated business association law (as contrasted with corporate law) has tended to be the domain of lawyers with tax and accounting orientation. Yet many law professors still struggle with the reality that their students (and sometimes the professors themselves) are not “numerate” enough to make these important connections. While recognizing the importance of numeracy, the basic course cannot in itself be devoted wholly to primers in accounting, tax, and finance.

The Executive Committee will devote the 2015 annual Section meeting in Washington to the critically important, but much-neglected, topic of effectively incorporating accounting, tax, and finance into courses in the law of business associations. In addition to featuring several invited speakers, we seek speakers (and papers) to address this subject. Within the broad topic, we seek papers dealing with any aspect of incorporating accounting, tax, and finance into the pedagogy of basic or advanced business law courses.

Any full-time faculty member of an AALS member school who has written an unpublished paper, is working on a paper, or who is interested in writing a paper in this area is invited to submit a 1 or 2-page proposal by May 1, 2014 (preferably by April 15, 2014). The Executive Committee will review all submissions and select two papers by May 15, 2014. A very polished draft must be submitted by November 1, 2014. The Executive Committee is exploring publication possibilities, but no commitment on that has been made. All submissions and inquiries should be directed to Jeff Lipshaw, Chair.

Jeffrey M. Lipshaw
Associate Professor
Suffolk University Law School
Click here for contact info

March 3, 2014 in Agency, Conferences, Joshua P. Fershee, LLCs, Partnership, Teaching, Unincorporated Entities | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 25, 2014

Corporate Opportunity Allegations at eBay, The Sequel

Yesterday, Carl Icahn sent a letter to eBay shareholders, which starts like this:

Dear Fellow eBay Stockholders,

We have recently accumulated a significant position in eBay’s common stock because we believe there is great long-term value in the business. However, after diligently researching this company we have discovered multiple lapses in corporate governance. These include certain material conflicts of interest, which we believe could put the future of our company in peril. We have found ourselves in many troubling situations over the years, but the complete disregard for accountability at eBay is the most blatant we have ever seen. Indeed, for the first time in our long history, we have encountered a situation where we believe we should not even have to run a proxy fight to change the board composition. Rather, we believe that in any sane business environment these directors would simply resign immediately from the eBay Board, either out of pure decency or sheer embarrassment at the public exposure of the extent of their self-serving activities.

Wow. You could almost drop the mic there.  Icahn does not, though. He goes on to outline a series of transactions from board members and the CEO that raise reasonable questions about the independence of certain board members.  (click below for more)

Continue reading

February 25, 2014 in Business Associations, Corporate Governance, Corporations, Current Affairs, Joshua P. Fershee | Permalink | Comments (1)

Tuesday, February 18, 2014

Assessment Across The Curriculum Conference

This conference is worth a look, with some great people (and great teachers), including Michael Hunter Schwartz.  It's relevant to all disciplines, though judging by the AALS panel I attended in January, for the section on Agency, Partnership, LLCs, and Unincorporated Associations, titled "Effective Methods for Teaching LLCs and Unincorporated Business Arrangements," a lot of people in the in the business area have been particularly focused on assessment and outcomes for their students.  BLPB's own Anne Tucker, for one. 

Assessment Across The Curriculum

Institute for Law Teaching and Learning

Spring Conference 2014

Saturday, April 5, 2014

“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning.  The conference will take place on Saturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.

 Conference Content:  Sessions will address topics such as

·         Formative Assessment in Large Classes

·         Classroom Assessment Techniques

·         Using Rubrics for Formative and Summative Assessment

·         Assessing the Ineffable: Professionalism, Judgment, and Teamwork

·         Assessment Techniques for Statutory or Transactional Courses

By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.

Who Should Attend:  This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.

Conference Structure:  The conference opens with an optional informal gathering on Friday evening, April 4.  The conference will officially start with an opening session on Saturday, April 5, followed by a series of workshops.  Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference.  The conference ends at 4:30 p.m. on Saturday.  Details about the conference are available on the websites of the Institute for Law Teaching and Learning ( and the University of Arkansas at Little Rock William H. Bowen School of Law ( 

Conference Faculty:  Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).

Accommodations:  A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201.  Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at  The group code to use when making reservations for the conference is “LAW.” 

February 18, 2014 in Conferences, Joshua P. Fershee | Permalink | Comments (0)

Wednesday, February 12, 2014

How Not to Impress City Council with Your LLC

This article popped up from the local paper (home of internet sensation Marilyn Hagerty) serving the area of my prior instituion

Committee recommends no liquor license for Rumors bar in Grand Forks

The Grand Forks City Council Service/Safety Committee recommended Tuesday that the city deny a liquor license transfer for Rumors bar in Grand Forks.

The committee originally recommended the full council deny the license earlier this month because of the previous felony charges against Blake Bond, Jamestown, N.D., one of the partners in Sin City LLC, the applicant of the license.

The council then sent the issue back to the committee, but when representatives from Sin City failed to show up at Tuesday’s meeting, the committee voted to recommend denying the license again. . . . .

A quick note for the reporter, who wouldn't necessarily know this:  LLCs don't have partners. They have members.  So, the more accurate statement would be that Mr. Bond "is one of the members of Sin City, LLC."  The North Dakota Limited Liability Company Act definitions provision explains that:

"Member" means a person, with or without voting rights, reflected in the required
records of a limited liability company as the owner of a membership interest in the
limited liability company.

 N.D. Cent. Code 10-32-02 (40)

As for the LLC members, here's a hint: it's probably best not to name your LLC "Sin City, LLC" when you want approval from the council's Safety Committee and need approval of the full council to get the liquor license you need for your bar.  This is likely to be even less of a good idea when one of your LLC members apparently has prior felony convictions.  It's also probably best to show up for the council meeting to make your case, too, if the council is willing to listen. 

In this circumstance, it is entirely possible that Sin City, LLC, was formed (about a month ago) without the services of an attorney. I rather hope so.  Although as lawyers we are not necessarily required to opine on entity names or other business decisions, sometimes being a good counselor requires suggesting to one's client the potential implications of such decisions.  Here, for example, good counsel might have suggested that other naming options might be preferable.

Clients won't always listen, of course, but it's worth a shot (no pun intended).

February 12, 2014 in Business Associations, Joshua P. Fershee, LLCs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

CVS: More Evidence Courts Are Creeping into the Boardroom

CVS/Caremark announced, on Feb. 5, 2014, that that the company would cease selling tobacco products in its 7,600 U.S. pharmacies.  Given that the entity estimated that it would lose about $2 billion in revenues from the decision, the world took notice.  CVS has managed the announcement well, and the company has received generally good press about the whole idea.

 Personally, I applaud the decision, both because I think it’s a sensible choice and because I think the board properly exercised its authority to set CVS stores up for long-term success. The company tried to maximize the feel-good story of the decision, but I think that message was tempered by the necessity that CVS explain the profit-seeking role of the decision with the announcement. Clearly, CVS’s counsel read eBay v. Newmark.

The CVS announcement had two components.  First, the media spin – for the aren’t-they-great? response:

“We have about 26,000 pharmacists and nurse practitioners helping patients manage chronic problems like high cholesterol, high blood pressure and heart disease, all of which are linked to smoking,” said Larry J. Merlo, chief executive of CVS. “We came to the decision that cigarettes and providing health care just don’t go together in the same setting.” 

Second, was the business-judgment-rule spin – a/k/a the hey-we’re-not-craigslist-or-Ford statement: 

The decision to exit the tobacco category does not affect the company's 2014 segment operating profit guidance, 2014 EPS guidance, or the company's five-year financial projections provided at its December 18th Analyst Day. The company estimates that it will lose approximately $2 billion in revenues on an annual basis from the tobacco shopper, equating to approximately 17 cents per share. Given the anticipated timing for implementation of this change, the impact to 2014 earnings per share is expected to be in the range of 6 to 9 cents per share. The company has identified incremental opportunities that are expected to offset the profitability impact. This decision more closely aligns the company with its patients, clients and health care providers to improve health outcomes while controlling costs and positions the company for continued growth.

Here’s the thing: CVS shouldn’t have to do this second part, in my view, though I would have advised them to because of the recent language used by the Delaware courts.  Unlike some, I still believe in the business judgment rule.  Absent conflicts of interest, fraud, or illegality, CVS should be able to make this decision without further justification.  The court should abstain.  But courts want more.

In eBay v. Newmark, Chancellor Chandler was not satisfied that craigslist was profitable or that the company had achieved market-leading status through its chosen course of operations.  He wanted more:

craigslist’s unique business strategy continues to be successful, even if it does run counter to the strategies used by the titans of online commerce. Thus far, no competing site has been able to dislodge craigslist from its perch atop the pile of most-used online classifieds sites in the United States. craigslist’s lead position is made more enigmatic by the fact that it maintains its dominant market position with small-scale physical and human capital. Perhaps the most mysterious thing about craigslist’s continued success is the fact that craigslist does not expend any great effort seeking to maximize its profits or to monitor its competition or its market share. 

For Chancellor Chandler, and Delaware courts, it was not sufficient that craigslist’s CEO testified “that craigslist’s community service mission ‘is the basis upon which our business success rests. Without that mission, I don’t think this company has the business success it has. It’s an also-ran. I think it’s a footnote.’” Would it have been sufficient if he had said “our profitability” instead of “business success?”  I doubt it. 

As such, CVS had to go further to show where this decision fit within their profit-making scenario.  Chancellor Strine agrees: “I simply indicate that the corporate law requires directors, as a matter of their duty of loyalty, to pursue a good faith strategy to maximize profits for the stockholders.”  Chancellor Strine immediately seeks to soften the blow by stating, “The directors, of course, retain substantial discretion, outside the context of a change of control, to decide how best to achieve that goal and the appropriate time frame for delivering those returns.”  The problem: that’s not really true if you add this philosophy together with eBay, which appears to require “great effort” to maximize profits, or monitor competition or market share, as opposed to pursuing a corporate philosophy that creates and maintains profitability and market leadership.

To be clear, this is not about CSR. This is about director primacy and keeping the courts out of the boardroom as much as possible. I think CVS should be able to decide to drop tobacco if they wish, just as craigslist should be able to decide that it wants to stay profitable and be a market leader forever.  If long-term success, in the board’s judgment, means not selling cigarettes or not monetizing and not taking risks of a boom and bust, they should be able to do that.

Was it essential that Boston Market and Krispy Kreme expand as fast as possible and as seek as much profit at they could in the near term?  I hope not.  The directors are supposed to be in charge and make such decisions, not the shareholders, and not the courts.  The business judgment rule is an abstention doctrine, and courts should stay out of it unless there is a strong indication of a conflict of interest, fraud, or illegality. CVS took the proper steps to minimize the risk of a court intervention. They just shouldn't have had to justify that decision to anyone but their shareholders at election time. 

February 11, 2014 in Business Associations, Corporate Governance, Corporations, Current Affairs, Joshua P. Fershee, Social Enterprise | Permalink | Comments (5) | TrackBack (0)

Tuesday, February 4, 2014

Courts Should Get the Doctrinal Distinction Between LLCs and Corporations


I understand that I may be one of the few people who seems to actually care about such a thing, but it seems to me courts really should be careful about their descriptions of limited liability entities.  I have written about this before (here, here, and here), but it continues to frustrate me.  

One of the things that got me thinking about this again (but let's be honest, it seems I am always thinking about this) is a post over at The Conglomerate.  There, Christine Hurt (who, to be clear, is a lot smarter and more knowledgeable than I) discusses the Illinois governor's interest in generating more jobs by shifting to "the $39 limited liability company."  In her post, she makes a couple references to incorporation in the context of LLC formation.  But, in fairness, that's a blog post, and I can't claim that I have always been as precise as I should be in my blog writing, either.  

Courts, however, should be more careful.  The U.S. Court of Appeals for the Ninth Circuit, for example, loves to call limited liability companies "limited liability corporations" in their cases.  Take, for example, CarePartners, LLC v. Lashway, 545 F.3d 867 (9th Cir. 2008), the caption of which is:  "CAREPARTNERS LLC, limited liability corporation under the Laws of the State of Washington doing business as Alderwood Assisted Living . . . ."  That is wrong. Washington LLC law provides that an LLC is a limited liability company.  Even more significant, Washington LLC law provides specifically that  an LLC's name "[m]ust not contain any of the words or phrases:  . . . 'corporation,' 'incorporated,' or the abbreviations 'corp.,' 'ltd.," or 'inc.,'  . . . ." Wash. Stat. 25.15.010(d)  (2014).  

A quick search of Westlaw provides ten more cases using the term "limited liability corporation" in reference to an LLC since January 23, 2014.  Maybe it doesn't matter much in most cases, but in cases dealing with new issues under LLC law, it sure can (see, e.g., here).   And until courts start getting more precise, from time to time I'll keep reporting on their lack of precision. 


February 4, 2014 in Business Associations, Corporations, Joshua P. Fershee, LLCs, Unincorporated Entities | Permalink | Comments (6) | TrackBack (0)

Tuesday, January 28, 2014

Veil Piercing Not the Only, or Best, Response to Man-Made Disasters

Last week, after a post here, I received a call from a Charleston (WV) reporter seeking some background on veil piercing as it relates to the company (Freedom Industries) linked to a chemical spill that left 300,000 people without clean drinking water.  That conversation led to a rather long article, as newspapers go, on the concepts of veil piercing in West Virginia.  The article did a rather good job of relaying the basics (with a few nits), and I hope it at least informs people a little bit about the process to follow on that front. 

The article does reflect a little confusion over what I was trying to communicate about personal liability for the president of Freedom Industries. West Virginia law provides: (b)“Unless otherwise provided in the articles of incorporation, a shareholder of a corporation is not personally liable for the acts or debts of the corporation except that he may become personally liable by reason of his own acts or conduct.W. Va. Code, § 31D-6-622 (emphasis added). I was trying (and I take responsibility for any lack of clarity) to reflect my view that it was conceptually possible that the company president could be found personally liable for the harm if there were activities undertaken in his personal (and not corporate) capacity, but that based on the facts currently available, that seemed unlikely to me. 

West Virginia courts have long reinforced the separate nature of the corporation and the shareholder. Consistent with prevailing views, the state recognizes each corporation as a distinct, individual entity that is separate and distinct from other corporations and from their respective shareholders. “The law presumes that two separately incorporated businesses are separate entities and that corporations are separate from their shareholders.” S. Elec. Supply Co. v. Raleigh County Nat. Bank., 173 W. Va. 780, 788, 320 S.E.2d 515, 523 (1984). In a proper case, courts will disregard the entity form—pierce the limited liability veil—where necessary to prevent injustice; however, courts take seriously this separate nature of corporations and shareholders, and “the corporate form will never be disregarded lightly.” Laya v. Erin Homes, Inc., 177 W. Va. 343, 347, 352 S.E.2d 93, 97 (1986) (quoting S. States Coop., Inc. v. Dailey, 167 W.Va. 920, 930, 280 S.E.2d 821, 827 (1981)); see also S. Elec. Supply Co. v. Raleigh County Nat. Bank., 173 W. Va. 780, 787, 320 S.E.2d 515, 522 (1984) (“The [veil piercing] doctrine is complicated, and it is applied gingerly.”).  Thus, while veil piercing is not impossible, it is a significant hurdle. 

I mentioned in a prior post that I thought enterprise liability (essentially collapsing various limited liability entities into one) was a more likely possible remedy for unpaid losses, though again it is by no means a given.  Much more information about how the various entities involved in the whole situation operated and interacted with one another will need to be discovered before the real likelihood of such an outcome can be reasonably predicted.  

Regardless of how that turns out, though, there is another issue worth noting, and that is the lack of government oversight.  The classic case on veil piercing and enterprise liability, Walkovszky v. Carlton, explained that complaints about the inadequacy of corporate insurance and others assets are not a problem for the courts to solve.  That court explained: 

if the insurance coverage required by statute “is inadequate for the protection of the public, the remedy lies not with the courts but with the Legislature.” It may very well be sound policy to require that certain corporations must take out liability insurance which will afford adequate compensation to their potential tort victims. However, the responsibility for imposing conditions on the privilege of incorporation has been committed by the Constitution to the Legislature (N. Y. Const., art. X, §1) and it may not be fairly implied, from any statute, that the Legislature intended, without the slightest discussion or debate, to require of . . . [such] corporations that they carry . . . liability insurance over and above that mandated by [law].”  Walkovszky v. Carlton, 18 N.Y.2d 414, 419-420(N.Y. 1966) (citations omitted).

I don’t know if a court will pierce the veil or apply an enterprise liability theory to expand the available assets for victims of the chemical spill. There is a lot to be determined before we’ll see an outcome. Still, it needs to be clear that where a company acts within the parameters of its grant of limited liability, seeking additional compensation from others after the fact is improper. (Again, whether the companies involved acted appropriately is an open question.) 

If we’re uncomfortable with the cap on recovery for harms such as this, then randomly, haphazardly, and retroactively eliminating a state grant of limited liability protection is not the proper response.  There are other ways to help protect the public, such as proper permitting, oversight and enforcement at chemical storage sites, and increased insurance and/or bonding requirements.  State and federal legislatures should be discussing such options right now, and at least some discussions are occuring.  It is, though, disheartening to read that even while discussing stronger standards for chemical storage tank operators, the West Virginia Senate Natural Resources Committee also voted to reduce water quality standards for aluminum in state water.

January 28, 2014 in Business Associations, Corporations, Current Affairs, Joshua P. Fershee, LLCs, Unincorporated Entities | Permalink | Comments (0)

Tuesday, January 21, 2014

WV Chemical Spill: Can you over do entity formation? (Hint: Yes.)

Freedom Industries -- the company apparently responsible for contaminating the Elk River (and, along with it, 300,000 West Virginia residents’ drinking water) – has filed for Chapter 11 bankruptcy.  The company wasted little time filing for reorganization, and the process already has some people on edge. 

From a public relations perspective, this kind of cases does not serve the concepts of Business Organizations especially well.  The use of limited liability vehicles is sanctioned by law, and such use has been credited with creating all kinds of opportunities for growth through pooled resources that would not otherwise occur without the grant of limited liability.  I happen to think that’s true.  (See, e.g., Corporate Moral Agency and the Role of the Corporation in Society, p. 176, By David Ronnegard) 

Still, one of the issues is that figuring out who owned Freedom Industries took some sleuthing (reporter's findings here).  It appears the structure is as follows: 

Freedom Industries’ Chapter 11 documents list its sole owner as Chemstream Holdings, which is owned by J. Clifford Forrest.  Forrest also owned the Pennsylvania company, Rosebud Mining, which is located at the same address Chemstream Holdings lists for its headquarters.  The

Reports note that the chapter 11 filing also states that two entities have offered to lend up to $5 million to fund Freedom Industries’ reorganization.  The two entities are VF Funding and Mountaineer Funding, the latter of which is a West Virginia LLC formed by its sole owner: J. Clifford Forrest.

The idea that the owner of the company that owns the company that owned the chemicals that harmed the water in West Virginia is now seeking to create a new company to loan money to the company that owned the chemicals is note sitting very well with many of those harmed by the chemical leak. 

Some of those harmed by the chemical spill are objecting to the proposed reorganization structure. As reported here, West Virginia American Water (WVAW), the utility providing the tainted water (and the subject of it own lawsuits because of it), claims the water company will be “the largest creditor by far in this bankruptcy case.” As such, WVAW has asked (PDF here) the bankruptcy judge to slow down the reorganization so that the utility and other creditors an opportunity get a better sense of the ownership structure and how the creditors (and possible creditors) will be treated. 

This case probably looks even worse because it keeps coming back to a single person, and not a group of investors. Again, one company – Chemstream Holdings, Inc. is owned by one person -- J. Clifford Forrest, who then is the sole owner of a company seeking to loan money to the embattled company. 

Keeping with that theme, after a little sleuthing of my own, I found that although the initial reports were of VF Funding and Mounatineer Funding LLC offering to loan $5 million to Freedom Industries, it seems to have gotten even more convoluted.  There is yet another company in the mix – WV Funding LLC (pdf), which was formed on January 17, 2014, and on the same date the entity filed to be the Debtor in Possession of Freedom Industries (pdf). WV Funding LLC was organized by same Wheeling attorney who formed Mountaineer Funding LLC for Forrest.  The sole listed member of WV Funding LLC? Mountaineer Funding LLC (pdf). Related documents here.

All of this, at least at this point, seems permissible. Still, at some point, it really does start to look like someone is trying to pull a fast one.  And even a staunch defender of the corporation and uncorporation has a hard time arguing otherwise.  At a minimum, and even though there are good counterarguments (like Steve Bainbridge makes here in a different context), such behavior starts to make an expansive view of enterprise liability a lot more attractive. 

January 21, 2014 in Business Associations, Corporations, Entrepreneurship, Ethics, Joshua P. Fershee, LLCs, Unincorporated Entities | Permalink | Comments (2)

Wednesday, January 15, 2014

Don’t Let WV Chemical Spill Get You Fracking Distracted

As a resident of West Virginia, I am especially appalled at the disastrous chemical spill into the Elk River that has left 300,000 without safe water. My family and I are fortunate that we live well north of the spill and we have not been burdened by a lack of safe water. Still, our state, our friends, and our environment have been, and we can sense the suffering. 

In the wake of disasters, there often follow what are known as “policy windows” that create opportunities for new legislation. G. Richard Shell describes the concept like this in Make the Rules or Your Rivals Will (Amazon link) :  

Policy windows “open” in the wake of a high visibility event such as an expose, a scandal, a public-health crisis, or a disaster.  They “close” when the legislature acts to address the problem or when some other news event pushes the issue off the front pages and diverts public attention elsewhere.

Some have noted that the disaster in West Virginia has not gotten its due on some of the news shows (see, e.g., Sunday Shows To West Virginia: Drop Dead!”, but the disaster has still been a high-profile media event. 

This chemical spill highlights failures by the corporation and failures by the environmental regulators charged with oversight of such corporations.  It is an issues the must be addressed, and should be addressed quickly.  However, I am concerned that much of the dialogue related to spill may already be forcing the window closed.  (To that point, it’s also not clear to me new legislation is as important as strict enforcement of current rules. Regardless, the window that will lead to mandating better enforcement, with increased funding to do so, will only be open a short period of time.)

Numerous outlets, from the Christian Science Monitor to the Daily Show, have linked the chemical spill to hydraulic fracturing (commonly called “fracking”). Although it’s true that chemicals are used in the hydraulic fracturing process, the spill here has nothing to do with that.  It was chemical spill at a site where the chemical was not being used for its purpose, which is to wash coal in preparation for sale in the market. (Again, though, this is neither a coal nor a natural gas problem.  It is a chemical spill and a failure of the chemical company involved and the regulators charged with oversight. Solar panels need toxic chemicals, too, so this is not simply a fossil fuel issue.)

As someone who spends a lot of time looking the impacts of energy-related regulation and the related economic, environmental, and social impacts, this misdirection concerns me.  The main concern is that the focus will shift away from the clear and present concern presented by the spill: the lack of inspection and oversight of West Virginia chemical plants.  That is the immediate and pressing issue raised, and adding separate (and largely distinct) risks and processes raised by the potential harms from hydraulic fracturing to the discussion is likely to distract from the danger staring West Virginia in the face. 

To be clear, I am not saying there aren't risks from hydraulic fracturing. But I am saying that most of the risks are different than the one that left 300,000 West Virginian’s without water. I am saying that conflating the two is dangerous and misguided. And I am saying that West Virginia’s regulators need to do better.  

In discussing hydraulic fracturing, I have written elsewhere

One of the paramount concerns for both the oil and gas industry, as well as regulators and communities, should be that a company gets careless with their drilling methods or waste management processes, and that the carelessness leads to a major environmental disaster. The harm to the environment itself would be a concern, of course, but . . . this harm is one that should be universally recognized.

I continue to believe this is true, and it’s why I have called for increased use of baseline standards for all phases of hydraulic fracturing.  Still, the best ways to address the risks from hydraulic fracturing are different in most cases from how we must approach increasing safety from chemical plants.  It will serve all of us well to recognize that THIS disaster is not a fracking problem, and we should not approach it as if it is.   Merging the two issues would be bad economic, environmental, and social policy. We’ve had enough harm to all three areas already.

January 15, 2014 in Corporations, Current Affairs, Joshua P. Fershee | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 14, 2014

People Are People, Too: The Dish on DISH Network, Part I

In December, the Deal Professor, Steven Davidoff, wrote a great piece about the grey areas triggered by DISH Network Chairman Charles Ergen's debt purchase from LightSquared (a failing satellite-based broadband comany).  This case has several twists and turns, and I plan to write a few posts on some of these areas.  Today, we'll start with debt purchase. 

As Davidoff explains, Lightsquared's debt could not (per the debt documents) be purchased by “direct competitor” (e.g., Dish Network), so Ergen used a personal investment vehicle to buy the debt.  This, the Deal Professor notes, appears acceptable under the debt documents (even if it's not what was intended):

In a court filing, LightSquared contends that Mr. Ergen breached the debt agreement because the documents define a “direct competitor” to also be a subsidiary of a direct competitor. LightSquared is arguing that because Mr. Ergen controls both Dish and the hedge fund that bought the debt, the fund is a subsidiary of Dish.

Yet that argument stretches the plain meaning of a “subsidiary” — a company owned or controlled by a holding company — language that is not in the document. So LightSquared’s claims against Mr. Ergen are tenuous at best.

The acquisition itself seemed to link DISH and Lighsquared, even if that was not technically the case. Although the major outlets seemed to understand the structure of the purchase (see, e.g., here), some early takes from the blogosphere were less precise, such as this headline: Dish Snaps Up Some LightSquared Debt, which links to articles characterizing the purchase correctly. In fact, Lightsquared has its own issues with the purchase. According to a Lightsquared Special Committee Report of November 15, 2013 (pdf here):

45. Although “Lenders” have the right to assign their rights under the Credit 
Agreement to third parties, the Credit Agreement contains strict transfer restrictions regarding those assignments. Specifically, section 10.04(b) of the Credit Agreement provides that a Lender can only “assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement.” The Credit Agreement proscribes that “Eligible Assignee” “shall not  include Borrower or any of its Affiliates or Subsidiaries, any natural person or any Disqualified Company.” (Credit Agreement, § 1.01.) A “Disqualified Company” is “any operating company that is a direct competitor of the Borrower,” as well as “any known subsidiary thereof.” (Id.) . . . .

49. The parties intended for the transfer restrictions to be as broad as possible, 
yet specific about which entities the Credit Agreement forbade from holding the LP Debt. Thus, the Credit Agreement includes a list of “Disqualified Companies.” As of October 10, 2010, EchoStar was on the “Disqualified Company” list. On May 9, 2012, LightSquared added DISH and several other entities. Therefore, DISH, EchoStar, and all entities they control directly or indirectly in any way cannot be “Eligible Assignees.”

The report further states that DISH and EchoStar personnel were used "to handle all trades . . .  at Mr. Ergen’s behest."

Still, Ergen is not DISH or EchoStar, nor is he an entity.  It seems to me that clauses such as this may need to consider including directors, management, and/or large shareholders of the entities they seek to disqualify if that really is the goal.  Now, using DISH and Echostar to further personal investing may be a problem, and in fact, some DISH shareholder have taken issue with how things have transpired (Shareholders Sue Dish, Charlie Ergen Over $2.2 Billion Spectrum Bid).  That, however, has to do with Ergen and his role with DISH, and not Lightsquared.  

Expanding the limitations on credit agreements like Lightsquared's to include directors, executives, and other shareholders could be argued as excessive.  It may be.  It certainly would further limit the pool of potential acquirers, but that's okay, if that's the desire.  Credit agreements are contracts, and the parties are free to limit their scope of dealing in this way, as well if they so choose.  In fact, we see this kind of language in contests all the time: "Employees and agents of [Entity], its respective affiliates and subsidiaries and members of their immediate families and households are not eligible."  This kind of language could be adopted (and even expanded) for use in credit agreements.  

If that is what a company wants, though, they need to specifically do so to carry out their intent. Maybe this issue is that, with  the complaints about corporations being people, perhaps that some have forgotten that people are people, too, something I have known since at least 1984.  

January 14, 2014 in Business Associations, Corporations, Current Affairs, Joshua P. Fershee, Merger & Acquisitions | Permalink | Comments (0)

Tuesday, January 7, 2014

CFTC and FERC Finally Play Nice(ish)

News Release

The Federal Energy Regulatory Commission (FERC) and the Commodity Futures Trading Commission (CFTC) have signed two Memoranda of Understanding (MOU) to address circumstances of overlapping jurisdiction and to share information in connection with market surveillance and investigations into potential market manipulation, fraud or abuse. The MOUs allow the agencies to promote effective and efficient regulation to protect energy market competitors and consumers.

Finally, the CFTC and FERC seem to have resolved some serious jurisdictional overlap problems between the agencies related to Dodd-Frank (section 720(a)(1)), which required the agencies to adopt a Memorandum of Understanding (MOU) to resolve several key issues. It’s taken a while to get here.  Recall that settling (or at least improving) jurisdictional questions became especially acute in the wake of the Brian Hunter case, where the CFTC joined the defendant against FERC claiming that the CFTC had exclusive jurisdiction over Hunter’s alleged trading violations.  The DC Circuit agreed with Hunter and the CFTC (opinion pdf). 

At long last, there are two MOUs, one related to jurisdiction (pdf) and the other related to information sharing (pdf). According to the FERC news release, the jurisdiction MOU provides a process the agencies will use to notify one another of  issues “that may involve overlapping jurisdiction and coordinate to address the agencies’ regulatory concerns.“  The information sharing MOU creates procedures for the agencies to share information “of mutual interest related to their respective market surveillance and investigative responsibilities, while maintaining confidentiality and data protection.”

Perhaps the more interesting news (H/T: Craig Silverstein & Nathan Endrud) is the possibility of new licensing for wholesale power and natural gas market participants to deal with the people actually committing fraud and/or manipulating markets.   There is not agreement from all the commissioners that this is necessary, but it is an idea of note for this continually evolving market. 

January 7, 2014 in Current Affairs, Financial Markets, Joshua P. Fershee, Securities Regulation | Permalink | Comments (0)