Tuesday, February 7, 2017

5% Women in Charge is a Record? Wow.

According to CNN/Money, 2016 was a record year for women.  The report

America hit a milestone in 2016: The most female CEOs ever. There are now 27 women at the helm of S&P 500 companies. 

 The good news is it's a new record for women in business, according to S&P Global Market Intelligence. It's also 22% more -- a big jump -- from last year, when only 22 women led S&P 500 companies. 
Wow.  It's not shocking that women are trailing, but the numbers are still pretty surprising to me. That's a lot of unrealized talent.  
 
I have had the opportunity to work for two women who were deans of my law schools, and that, too, is pretty uncommon, though far more so than the numbers at Fortune 500 companies.  Women make up about 34% of faculty and 30% of law deans (or did as of 2015). That's noticeably better, but it remains clear we have work to do.
 
And that's really all I have to offer right now. We need to do better in how we assess talent and ability.  Because the numbers suggest we're missing out.  
 
 
 

February 7, 2017 in Current Affairs, Joshua P. Fershee | Permalink | Comments (0)

Monday, February 6, 2017

Cleaning Out the Regulatory Closet: An Analogy for Consideration . . .

This post comments on the method for managing regulation and regulatory costs in the POTUS's Executive Order on Reducing Regulation and Controlling Regulatory Costs.

I begin by acknowledging Anne's great post on the executive order.   She explains well in that post the overall scope/content of the order and shares information relevant to its potential impact on business start-ups.  She also makes some related observations, including one that prompts the title for her post: "Trumps 2 for 1 Special."  In a comment to her post, I noted that I had another analogy in mind.  Here it is: closet cleaning and maintenance.

84px-Wall_Closet
You've no doubt heard that an oft-mentioned rule for thinning out an overly large clothing collection is "one in, one out."  Under the rule, for every clothing item that comes in (some limit the rule's application to purchased items, depending on the objectives desired to be served beyond keeping clothing items to a particular number), a clothing item must go out (be donated, sold, or simply tossed).  Some have expanded the rule to "one in, two out" or "one in, three out," as needed.  The mechanics are the same.  The rule requires maintaining a status quo as to the number of items in one's closet and, in doing so, may tend to discourage the acquisition of new items.

Articulated advantages/values of this kind of a rule for wardrobe maintenance include the following:

  • simplicity (the rule is easy to understand);
  • rigor (the rule instills discipline in the user);
  • forced awareness/consciousness (the rule must be thoughtfully addressed in taking action); and
  • experimentation encouragement (the rule invites the user to try something new rather than relying on something tried-and-true).

Disadvantages and questions about the rule include those set forth below.

  • The rule assumes that it is the number of items that is the problem, not other attributes of them (i.e., age, condition, size, suitability for current lifestyle, etc.).
  • Once new items are acquired, the rule assumes that existing ones are no longer needed or are less desirable.
  • The rule operates ex post (it assumes the introduction of a new item) rather than ex ante (allowing the root problem to be addressed before the new item is introduced).
  • The rule encourages an in/out cycle that incorporates the root of the problem (excess shopping) rather than addressing it.
  • Definitional questions require resolution (e.g., what is an item of clothing).

Internet sources from which these lists were culled and derived include the article linked to above as well as articles posted here and here.

Regulation is significantly more complex than clothing.  But let's assume that we all agree that the list of advantages/values set forth above also applies to executive agency rule making.  Let's also assume the validity and desirability of the core policy underlying the POTUS's executive order on executive agency rule making, as set forth below (and excerpted from Section 1 of the executive order).

It is the policy of the executive branch to be prudent and financially responsible in the expenditure of funds, from both public and private sources. In addition to the management of the direct expenditure of taxpayer dollars through the budgeting process, it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.

How do the closet organization disadvantages or questions stack up when applied in the executive agency rule-making context?  Here's my "take."

Continue reading

February 6, 2017 in Anne Tucker, Current Affairs, Joan Heminway | Permalink | Comments (10)

Sunday, February 5, 2017

ICYMI: Tweets From the Week (Feb. 5, 2017)

February 5, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Saturday, February 4, 2017

More from Ben Edwards on Broker Fiduciary Duty and the POTUS's Recent EO

As readers may recall, I posted on broker fiduciary duties back at the end of December, focusing on a WaPo op ed written by friend-of-the-BLPB, Ben Edwards (currently at Barry, but lateraling later this year to UNLV).  He has a new op ed out today in the WaPo that says everything I could and would say regarding the POTUS's recent executive order on this topic (referenced by Ann in her post earlier today), and more.  I commend it to your reading.  

It's important to remember as you read and consider this issue what Ben's op ed focuses in on at the end: the rule the POTUS executive order blocks is a narrow one, since it only applies to activities relating to retirement investments. A broader fiduciary duty rule for brokers has not yet been adopted.  Suitability is still the standard of conduct for brokers outside the application of any applicable fiduciary duty rule.  The central question at issue is whether a broker must recommend investments in retirement planning that are in the best interest of the client investor or whether, e.g., a broker can recommend a suitable investment to a retirement investor that makes the broker more money/costs the client more money.

I have had to answer friends-and-family questions on this issue in the last 24 hours.  Perhaps you have, too. Here's an article that may be helpful if you are in the same boat I am in on this in having to help inform folks in your circle of influence about what this means for them.

February 4, 2017 in Current Affairs, Joan Heminway, Securities Regulation | Permalink | Comments (0)

Quick Hits

It's a drive-by this week, but I wanted to call your attention to the recent Delaware Chancery decision in In re Merge Healthcare Inc. Stockholders Litigation.  The plaintiffs challenged IBM's acquisition of Merge, alleging that a 26% Merge shareholder counted as a controller and was conflicted.  Therefore, the shareholder vote in favor of the merger could not cleanse the deal under Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del. 2015).

Vice Chancellor Glasscock rejected the argument.  Assuming (without deciding) that the 26% shareholder counted as a controller, he concluded that because the shareholder's interests were aligned with those of the public shareholders - among other things, the alleged controller had no unusual need for liquidity/a fire sale - no heightened scrutiny was required and the stockholder vote in favor of the deal was sufficient to cleanse the transaction.

Of particular interest:  It turns out that the Merge corporation did not have a 102(b)(7) exculpatory clause in its charter, which potentially exposed its board to damages for duty of care violations (though, ultimately, the stockholder vote was sufficient to cleanse any problems).  I didn't even know that was a thing that could happen.

In other news, the business media is aflutter with reports of Trump's new executive order, which would roll back the Department of Labor's new "fiduciary rule," requiring brokers to adhere to fiduciary standards when giving investment advice to retirement plans.  Quoth Gary Cohn, the White House National Economic Council director, "We think it is a bad rule. It is a bad rule for consumers.  This is like putting only healthy food on the menu, because unhealthy food tastes good but you still shouldn’t eat it because you might die younger."  Um, there may be legitimate reasons to object to the rule - namely, the argument (however spurious) that one way or another, you pay for investment advice, and the old way is cheaper - but treating investment advice like a consumption good is ... not among them.

February 4, 2017 in Ann Lipton | Permalink | Comments (0)

Friday, February 3, 2017

Reminder: National Business Law Scholars Conference Paper Submissions Due February 17

National Business Law Scholars Conference (NBLSC)

Thursday & Friday, June 8-9, 2017


Call for Papers

The National Business Law Scholars Conference (NBLSC) will be held on Thursday and Friday, June 8-9, 2017, at the University of Utah S.J. Quinney College of Law. 

This is the eighth meeting of the NBLSC, an annual conference that draws legal scholars from across the United States and around the world.  We welcome all scholarly submissions relating to business law. Junior scholars and those considering entering the legal academy are especially encouraged to participate. 

To submit a presentation, email Professor Eric C. Chaffee at eric.chaffee@utoledo.edu with an abstract or paper by February 17, 2017.  Please title the email “NBLSC Submission – {Your Name}.”  If you would like to attend, but not present, email Professor Chaffee with an email entitled “NBLSC Attendance.”  Please specify in your email whether you are willing to serve as a moderator.  We will respond to submissions with notifications of acceptance shortly after the deadline. We anticipate the conference schedule will be circulated in May. 

Keynote Speaker:

Lynn A. Stout, Distinguished Professor of Corporate & Business Law, Cornell Law School

Plenary Author-Meets-Reader Panel:

Selling Hope, Selling Risk: Corporations, Wall Street, and the Dilemmas of Investor Protection by Donald C. Langevoort, Thomas Aquinas Reynolds Professor of Law, Georgetown Law School

Commentators:

Jill E. Fisch, Perry Golkin Professor of Law, University of Pennsylvania Law School

Steven Davidoff Solomon, Professor of Law, University of California, Berkeley School of Law

Hillary A. Sale, Walter D. Coles Professor of Law, Washington University School of Law

Conference Organizers:

Tony Casey (The University of Chicago Law School)
Eric C. Chaffee (The University of Toledo College of Law)
Steven Davidoff Solomon (University of California, Berkeley School of Law)
Joan Heminway (The University of Tennessee College of Law)
Kristin N. Johnson (Seton Hall University School of Law)
Elizabeth Pollman (Loyola Law School, Los Angeles)
Margaret V. Sachs (University of Georgia School of Law)
Jeff Schwartz (University of Utah S.J. Quinney College of Law)


Please save the date for NBLSC 2018, which will be held Thursday and Friday, June 21-22, at the University of Georgia School of Law.

February 3, 2017 in Call for Papers, Conferences, Joan Heminway | Permalink | Comments (0)

J.D. Vance and Mentors

A few months ago, J.D. Vance, Yale Law School graduate and author of New York Times Best Seller Hillbilly Elegy, talked about "America's forgotten working class."

With the rise of Donald Trump, Vance's book and the book's topic have been much discussed.

I, however, want to focus on Vance's discussion after the 10 minute mark where he thanks various mentors for helping him overcome family financial, and community-based problems. Without a stable immediate family, Vance found guidance from his grandparents, the military, and his professors.

Raised in a predominately individualistic culture, I believed, for a long time, that hard work was the primary driver of success. I still think individual dedication is important, but looking back, I am also incredibly thankful for the many people who provided a helping hand along the way.

While most schools do not specifically reward it, I think professors are particularly well situated to mentor students. We can also be incredibly helpful to our more junior colleagues. Recognizing the value of the mentors in my own life, I do hope to "pay it forward" and become increasingly involved in the mentorship process.

February 3, 2017 in Business School, Haskell Murray, Law School, Service, Teaching | Permalink | Comments (3)

Thursday, February 2, 2017

Executives and the Executive Order

Donald Trump has had a busy two weeks. Even before his first official day on the job, then President-elect Trump assembled an economic advisory board. On Monday, January 23rd, President Trump held the first of his quarterly meetings with a number of CEOs to discuss economic policy. On January 27th, the President issued what some colloquially call a “Muslim ban” via Executive Order, and within days, people took to the streets in protest both here and abroad.

These protests employed the use of hashtag activism, which draws awareness to social causes via Twitter and other social media avenues. The first “campaign,” labeled #deleteuber, shamed the company because people believed (1) that the ride-sharing app took advantage of a work stoppage by protesting drivers at JFK airport, and (2) because they believed the CEO had not adequately condemned the Executive Order. Uber competitor Lyft responded via Twitter and through an email to users that it would donate $1 million to the ACLU over four years to “defend our Constitution.” Uber, which is battling its drivers in courts around the country, then established a $3 million fund for drivers affected by the Executive Order. An estimated 200,000 users also deleted their Uber accounts because of the social media campaign, and the CEO resigned today from the economic advisory board.

Other CEOs, feeling the pressure, have also issued statements against the Order. In response, some companies such as Starbucks, which pledged to hire 10,000 refugees, have faced a boycott from many Trump supporters, which in turn may lead to a “buycott” from Trump opponents and actually generate more sales. This leads to the logical question of whether these political statements are good or bad for business, and whether it's better to just stay silent unless the company has faced a social media campaign. Professor Bainbridge recently blogged about the issue, observing:

The bulk of Lyft's business is conducted in large coastal cities. In other words, Obama/Clinton country. By engaging in blatant virtue signaling, which it had to know would generate untold millions of dollars worth of free coverage when social media and the news picked the story up, Lyft is very cheaply buying "advertising" that will effectively appeal to its big city/blue state user base.

Bainbridge also asks whether “Uber's user base is more evenly distributed across red and blue states than Lyft? And, if so, will Uber take that into account?” This question resonates with me because some have argued on social media (with no evidentiary support) that Trump supporters don’t go to Starbucks anyway, and thus their boycott would fail.

All of this boycott/boycott/CEO activism over the past week has surprised me. I have posted in the past about consumer boycotts and hashtag activism/slacktivism because I am skeptical about consumers’ ability to change corporate behavior quickly or meaningfully. The rapid response from the CEOs over the past week, however, has not changed my mind about the ultimate effect of most boycotts. Financial donations to activist groups and statements condemning the President’s actions provide great publicity, but how do these companies treat their own employees and community stakeholders? Will we see shareholder proposals that ask these firms to do more in the labor and human rights field and if so, will the companies oppose them? Most important, would the failure to act or speak have actually led to any financial losses, even if they are not material? Although 200,000 Uber users deleted their accounts, would they have remained Lyft customers forever if Uber had not changed its stance? Or would they, as I suspect, eventually patronize whichever service provided more convenience and better pricing?

We may never know about the consumers, but I will be on the lookout for any statements from shareholder groups either via social media or in shareholder proposals about the use or misuse of corporate funds for these political causes.

February 2, 2017 in Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Human Rights, Marcia Narine Weldon | Permalink | Comments (3)

Rent-Seeking before the Patent Office

In 2012, the U.S. Patent Office instituted the Inter Partes Review (IPR) system—an administrative process allowing parties to challenge the validity of issued patents. If the agency determines a patent was erroneously granted, it is invalidated. IPR was intended as a less expensive alternative to litigating validity, and it serves this purpose. However—like many government programs—it had unforeseen consequences.

Almost any party hoping to challenge a patent can file for IPR; there is no requirement that they have a business interest in the patent. This lack of a standing requirement opened the door to a new type of rent seeking. Invalidity Assertion Entities (IAEs) threaten to use IPR to (attempt to) invalidate a patent, unless its owner pays a “settlement.” Anecdotal evidence shows that they target patents presently being litigated (presumptively because the patentee has the most to lose from invalidation at that time), but IAEs have no actual interest in the subject patent.

When this business model came to light, Congress reflexively proposed to do away with the practice. The legislation didn’t pass, but the negative response wasn’t surprising; rent seekers in patent law (e.g., patent trolls) have a bad reputation. I’ve written on IAEs (here and here), and despite the negative response to their business model, I argue for restraint in legislating to do away with them. As described below (and described fully in my articles), there are potential socially positive externalities that may arise from their business practices.

Erroneously granted patents create an unjustified deadweight economic loss, which is remedied when IAEs invalidate such patents (per their business model). Moreover, IAEs are likely to target weak (probably invalid) patents, which are commonly asserted by patent trolls. The weakness of these patents incentivizes their owners to avoid validity challenges (and to pay to do so), making them a prime target for IAEs. In fact (as I set out here), incentives exist for IAEs to generally target patent trolls, which is socially beneficial because it discourages future troll activity.

To be clear, I don’t think IAEs are a panacea for all of patent law’s problems. And I recognize the possibility that IAEs will engage in a nuisance-value business model (e.g., targeting all patents being litigated), though I’ve argued that this isn’t likely. My position is simply that—despite the fact that IAEs engage in rent seeking—it is possible that they are a social benefit.

February 2, 2017 | Permalink | Comments (0)

Wednesday, February 1, 2017

Trump's 2 for 1 Special

On Monday President Trump signed an Executive Order on Reducing Regulation and Controlling Regulatory Costs. The Order uses budgeting powers to constrict agencies and the regulatory process requiring that for each new regulation, two must be eliminated and that all future regulations must have a net zero budgeting effect (or less). The Order states:

"Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed."

Two points to note here.  First, the Executive Order does not cover independent agencies like the Securities and Exchange Commission and the Commodity Futures Trading Commission, agencies that crafted many of the rules required by the 2010 Dodd-Frank Wall Street reform law--an act that President Trump describes as a "disaster" and promised to do "a big number on".  The SEC, the CFTC and Dodd-Frank are not safe, they will just have to be dealt with through even more sweeping means.   Stay tuned.  The 2-for-1 regulatory special proposed on Monday is a part of President Trump's promise to cut regulation by 75%.

Second, the Order is intended to remove regulatory obstacles to Americans starting  new businesses.  President Trump asserted that it is "almost impossible now to start a small business and it's virtually impossible to expand your existing business because of regulations." Facts add nuance to this claim, if not paint an all-together different story.  The U.S. Department of Labor Statistics documents a steady increase in the number of new American businesses formed since 2010.  The U.S. small business economy grew while regulations were in place.  President Trump asks us to believe that they will grow more without regulation.  Some already do. The U.S. Chamber of Commerce "applauded" the approach decrying the "regulatory juggernaut that is limiting economic growth, choking small business, and putting people out of work."

Chart 1. Number of establishments less than 1 year old, March 1994–March 2015

Yet, as shocking as this feels (to me), the U.K. and Canada both have experience with a similar framework.  The U.K.'s two for one regulation rule has been touted as saving businesses £885 million from May 5, 2015 to May 26, 2016 and there is now a variance requiring three regulations to be removed for each one.  Canada takes a more modest one in- one out approach.  No information is available yet on any externalities that may be caused by decreased regulations.  For some, and I count myself in this camp, the concern is that the total cost of failed environmental protection, wage fairness, safety standards, etc. may outweigh individual gains by small business owners.

The 2-for-1 special evokes some odd memories  for me (Midwestern, of modest means) of a K-Mart blue-light special.  The Trump Administration is flashing a big, blue light with the promise to cut regulation by 75% without reference to the content of those regulations.  The first tool, a "two for one approach" strikes me as a gimmick where the emphasis is on marketing the message of deregulation through quantity, not quality.  Not to mention the arbitrariness of the numerical cut off (why not 1 or 13?). It is the type of solution, that if offered in answer to a law school hypo, would quickly be refuted by all of the unanswered questions.  Can it be any two regulations?  Can the new regulation just be longer and achieve the work of several?  Should there be a nexus between the proposed regulation and the eliminated ones?  What is the administrative process and burden of proof for identifying the ones to be removed?  The Executive Order, targeted at business regulation, but in doing so has created the most "significant administrative action in the world of regulatory reform since President Reagan created the Office of Information and Regulatory Affairs (OIRA) in 1981." Hold on folks, this is going to be a bumpy ride.

Image result for blue light special images

-Anne Tucker

 

 

February 1, 2017 in Anne Tucker, Corporations, Current Affairs, Entrepreneurship, Jobs | Permalink | Comments (2)

Tuesday, January 31, 2017

Note to the White House: More Energy Supply Drives Down Prices

Energy and business are closely related, and the former often has a direct impact on latter.  At Whitehouse.gov, the President has posted his energy plan, making the following assertions: 

Sound energy policy begins with the recognition that we have vast untapped domestic energy reserves right here in America. The Trump Administration will embrace the shale oil and gas revolution to bring jobs and prosperity to millions of Americans. We must take advantage of the estimated $50 trillion in untapped shale, oil, and natural gas reserves, especially those on federal lands that the American people own. We will use the revenues from energy production to rebuild our roads, schools, bridges and public infrastructure. Less expensive energy will be a big boost to American agriculture, as well.

It is certainly true that we "have vast untapped domestic energy reserves right here in America." It has brought some wealth and prosperity to the nation, and low oil prices because the country "embrace[d] the shale oil and gas revolution to bring jobs and prosperity to millions of Americans." However, low oil and gas prices (which largely remain) have slowed that growth and expansion because shale oil and gas exploration and production was wildly successful. 

The President says, "We must take advantage of the estimated $50 trillion in untapped shale, oil, and natural gas reserves, especially those on federal lands that the American people own."  But it's not clear how that's helpful. That is, selling our (the American people's) assets when the market is at or near record lows doesn't seem like very good asset management.  

The plan is to "use the revenues from energy production to rebuild our roads, schools, bridges and public infrastructure."  I am very fond of all of these things, though I am skeptical that the federal government should take a leading role in all of them. I am open to the discussion.  But, if we're selling our assets at pennies on the dollar of historic value, I am particularly skeptical of the benefits. 

"Less expensive energy will be a big boost to American agriculture, as well." Low energy costs do help agriculture. That is certainly true.  But notice that making energy even less expensive means we get less for our assets, and we're dumping more cheap energy into a market where private businesses in the oil and gas sector are already having a hard time.  

Facilitating a boom from cheap energy means investing in new jobs to use the energy, not just getting more of the energy.  Plants that use our cheaper fuels to make and build new products could help, but it's never easy.  High energy prices can stifle an economy, but low ones rarely spur growth.  About a year ago, an Economist article from January 2016 remains accurate, as it explained that sudden and major price increases can slow an economy rapidly, as we saw in Arab oil embargo of 1973. However, "when the price slumps because of a glut, as in 1986, it has done the world a power of good. The rule of thumb is that a 10% fall in oil prices boosts growth by 0.1-0.5 percentage points."  

The article further explains: 

Cheap oil also hurts demand in more important ways. When crude was over $100 a barrel it made sense to spend on exploration in out-of-the-way provinces, such as the Arctic, west Africa and deep below the saline rock off the coast of Brazil. As prices have tumbled, so has investment. Projects worth $380 billion have been put on hold. In America spending on fixed assets in the oil industry has fallen by half from its peak. The poison has spread: the purchasing managers’ index for December, of 48.2, registered an accelerating contraction across the whole of American manufacturing. In Brazil the harm to Petrobras, the national oil company, from the oil price has been exacerbated by a corruption scandal that has paralysed the highest echelons of government.

I am all for a new energy plan to help the economy grow, and I support continued energy exploration and production as long as it is done wisely, which I firmly believe can be done.  But adding new competitors (by allowing more exploration on federal lands) simply won't help (and it really won't help increase coal jobs). More supply is not the answer in an already oversupplied market.  And the current proposal is just giving away assets we will want down the road. 

January 31, 2017 in Current Affairs, Entrepreneurship, Financial Markets, Joshua P. Fershee, Law and Economics | Permalink | Comments (1)

Monday, January 30, 2017

Susilo Institute for Ethics Symposium - June 15-17 - Boston, MA

Conference information from an e-mail I recently received. 

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The second annual Susilo Symposium of the Susilo Institute for Ethics in the Global Economy will be held on June 15-17, 2017 at Boston University Questrom School of Business.

The event will feature distinguished and varied speakers, including Professor Francesca Gino of Harvard Business School, and site visits at Aeronaut Brewing, Bright Horizons, and Fenway Park, among other exciting area companies.

The Susilo Symposium will be part of a new Global Business Ethics week, which begins at Bentley University from June 12-15 for the Global Business Ethics Symposium and teaching workshop, and then will move to BU for June 15-17.

The event promises an audience of both scholars and practitioners from around the world. All seek to explore and exchange ideas in a unique and interactive forum about the role of ethics in the global economy.

This year’s Susilo Symposium follows the inaugural symposium, which was held in May 2016 in Surabaya, Indonesia. Featuring foremost business, academic, and political leaders, it reflected on “Global Business Ethics – East Meets West.”

What to Expect

The program is directed specifically toward both academics and practitioners. Our hope is that attendees will learn from each other and take away ideas and practices that they can implement immediately.

It will feature onsite visits to global corporations and the latest start-ups, from which you will learn about today’s cutting-edge responses to challenging dilemmas.

Symposium sessions will range from traditional academic paper presentations on the most recent research on global ethics, to interactive panels of faculty and practitioners discussing their shared perspectives, to active problem-solving and learning, to programs showcasing effective practices by leading corporate decision-makers.

The conference design intentionally builds in plenty of opportunities for networking among your colleagues and between academics and practitioners, including a Thursday evening social event, a Friday luncheon and Friday evening reception.

Registration & Questions

Registration is open now. If you have additional questions, please contact us by e-mail at susilo@bu.edu

January 30, 2017 in Business Associations, Business School, Conferences, Ethics, Haskell Murray | Permalink | Comments (0)

Public Officials And Securities Investments - A Parade of Horribles?

Although it may have gotten a bit lost in the shuffle of the POTUS's first ten days in office, the nomination of Representative Tom Price for the post of Secretary of Health and Human Services has received some negative attention in the press.  In short, as reported by a variety of news outlets (e.g., here and here and here), some personal stock trading transactions have raised questions about whether Representative Price may have inappropriately used information or his position to profit personally from securities trading activities, in violation of applicable ethical or legal rules.  This post offers some preliminary insights about the nature of the concerns, which are set forth in major part in this New York Times editorial from January 18, and joins others in calling for reform.

Concerns about legislators' securities trading activities are not new.  As you may recall, a 2011 study (using data from 1985-2001) found that members of the U.S. House of Representatives do make abnormal returns on stock trades.  A 60 Minutes exposé, "Insiders," then followed, which helped catalyze the adoption in 2012 of the Stop Trading on Congressional Knowledge ("STOCK") Act.  A recently released paper catalogues this history and effects on those abnormal returns.  The findings in this paper, which focuses on Senate trading transactions, are summarized below.

Before “Insiders” aired, the market-value weighted hedged portfolio earns an annualized abnormal return of 8.8%. This abnormal return comes entirely from the sell-side of the portfolio, which earns an annualized 16.77% abnormal return. Post-60 Minutes, we find no evidence of continued outperformance in our market-value weighted portfolios. On average, abnormal returns to the market-value weighted sell portfolio are 24% lower post-60 Minutes, relative to the pre-60 Minutes sample. Taken together, our evidence suggests that, Senators, on the whole, outperformed the market pre-60 Minutes, and this systematic outperformance did not survive the attention paid to Senators’ investments surrounding the broadcast of “Insiders” and subsequent passage of the Stop Trading On Congressional Knowledge (STOCK) Act.

Continue reading

January 30, 2017 in Current Affairs, Ethics, Financial Markets, Joan Heminway, Securities Regulation | Permalink | Comments (6)

Sunday, January 29, 2017

ICYMI: Tweets From the Week (Jan. 29, 2017)

January 29, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Saturday, January 28, 2017

That was unexpected – Delaware reconsiders preclusion in light of due process

I’ve previously posted about Delaware’s vulnerability – namely, to the extent it tries to police shareholder litigation through procedural rather than substantive legal standards, it is vulnerable to losing disputes to other jurisdictions that have rules deemed more favorable by litigants.  Plaintiffs and defendants can reach sweetheart merger settlements in jurisdictions that examine the terms less searchingly; defendants can win a dismissal of all claims filed by weak plaintiffs in one jurisdiction and estop stronger plaintiffs who bring suit in Delaware.

So, for example, Delaware encourages derivative plaintiffs to seek books and records under Section 220 before bringing a lawsuit, but that takes time.  A plaintiff in another jurisdiction might simply file a lawsuit right away, and if that suit is dismissed, the dismissal can preclude the Delaware plaintiff– which only gives the Delaware plaintiff less incentive to seek books and records in the first place.

Well, until now.  In Cal. State Teachers Ret. Sys. v. Alvarez, 2017 WL 239364 (Del. 2017), that exact scenario occurred in the long-running action against Wal-Mart for violations of the foreign corrupt practices act in Mexico.  While the Delaware plaintiffs sought books and records to bolster a derivative claim, federal plaintiffs in Arkansas ploughed ahead using public information, only to see their suit dismissed for failure to plead demand futility.  And Delaware Chancery concluded that the Arkansas ruling was res judicata against the Delaware plaintiffs.

Not so fast, said the Delaware Supreme Court last week.  Following VC Laster's analysis in In re EZCORP Inc. Consulting Agreement Deriv. Litig., 130 A.3d 934 (Del. Ch. 2016), the Supreme Court expressed concern that, as a matter of constitutional due process, until demand futility is established, any single group of plaintiffs represents only its own interests, and not the interests of the corporation.  Therefore, they bind only themselves – not the corporation – in any litigation, and a dismissal of one claim cannot preclude a subsequent claim.

The Court did not so hold definitively, though; it simply remanded to Chancery for further consideration of the issue.

This is certainly a dramatic solution to the problem of multiforum shareholder litigation.  Prior proposals have suggested a more searching inquiry into the adequacy of the first plaintiff; this approach, however, would mean that in derivative actions, no plaintiff is ever precluded by another plaintiff’s failure to plead demand futility.  Talk about firing off a canon to kill a bug.

It still leaves Delaware in a precarious position, because it rests wholly on federal constitutional law – and there’s no telling how federal judges will rule once they get hold of the problem.  They certainly don’t have the same interests in protecting Delaware law that Delaware has.

January 28, 2017 in Ann Lipton | Permalink | Comments (0)

Friday, January 27, 2017

The Star Trek Fan Film Case, part 2 - Thoughts on the Fair Use Opinion

The Star Trek copyright lawsuit I previously wrote about settled last Friday.  This was not a surprise. Defendant Axanar’s best bet was arguing that its fan film made fair use of the Star Trek works. The court, however, foreclosed that defense a few weeks ago.  This post addresses a few points (out of many) from the opinion ruling against Axanar’s assertion of fair use.  I’m not certain that the judge got the multi-factor analysis incorrect, but I do worry about how some aspects of the opinion will be applied in the future. 

When assessing fair use, courts must review whether the work is commercial or not.  For-profit use weighs against the defense.  Axanar argued that its film was non-commercial because it would be freely downloadable.  The court rebuffed, positing that “indirect commercial benefit” is sufficient to render a use commercial. While there is precedent supporting this proposition, the opinion expanded the idea of indirect commercial benefit a step too far. 

The court held that defendants’ intent to create “other job opportunities” through the Axanar project rendered it commercial and thus, disfavored fair use.  The problem is that almost any author, film producer, etc. hopes that their projects will be successful and create future job prospects.  Accordingly, this consideration will disfavor fair use in almost all situations under the Axanar opinion. 

To be fair, there was evidence that defendants attempted to leverage their project into new business opportunities, and that probably supports the “commercial” determination. This fact, however, was not elaborated on in the opinion, and that nuance is unlikely to be referenced in future citations to the case.   

My second concern with the fair use analysis pertains to the court’s assessment of the “Amount and Substantiality of the Portion Used.” Under this factor, the more of the copyrighted work that is used (in both volume and importance), the less likely the defense is applicable. The court found that Axanar’s use of many details from the Star Trek universe (e.g., Vulcans, phasers, etc.) disfavored fair use.  There was no discussion of whether Axanar used primary plots or characters from Star Trek.

This precedent again casts broad shadows. Under the opinion, stories that take place in a preexisting fictional world (e.g., fan works) will almost always be disfavored as a fair use (regardless of how much of the actual plot is used).  Works of that type commonly use small details to stay consistent with the original universe, and thus, under the Axanar opinion, will usually be disfavored as a fair use.  I doubt the court intended the “amount used” consideration to disfavor fair use for almost all works of this nature (including most fan productions).  Again, while the court’s final conclusion may be correct, the precedent it established seems to be unnecessarily broad.

January 27, 2017 in Intellectual Property | Permalink | Comments (0)

Reviving the IRAC Conclusion

Many, if not most, law professors teach their students the IRAC framework --- Issue - Rule - Analysis - Conclusion --- to use in addressing legal issues and answering exam essays.

I even teach my undergraduate students the IRAC framework, and find it useful in teaching critical thinking skills.

However, like many of my former law professors, I usually underemphasize the importance of the conclusion. Of course you have to get the issue and rule correct to start, but the meat of the answer is in the fact and rule-based analysis. The conclusion, I often say, can often go either way, especially on the thorny exam issues.

Since I started hearing the term "post truth," I have been rethinking the way I teach IRAC and the underemphasized conclusion. While it is still clearly important to teach and test analysis, I am starting to realize the value of identifying the strongest and best conclusion. This may prove difficult to test, as law exams often focus on unsettled areas of law, but perhaps I will include a few more settled portions to see if students can identify legal issues with a clearer correct answer.  

January 27, 2017 in Business School, Haskell Murray, Law School, Teaching | Permalink | Comments (4)

Thursday, January 26, 2017

Belmont Health Law Journal - What’s Next? The Movement from Volume to Value-based Healthcare Delivery

The Belmont Health Law Journal is hosting its first symposium tomorrow, January 27th.

The theme of the symposium will be What's Next? The Movement from Volume to Value-based Healthcare Delivery, and will feature Congressman Jim Cooper as keynote speaker. 

Information is available here.

Registration is from 8:30am to 9:00am. Speakers will present from 9:00 am until noon. CLE credit and lunch provided.

January 26, 2017 in Business Associations, Haskell Murray, Law Reviews, Law School | Permalink | Comments (0)

Wednesday, January 25, 2017

Delaware Pre-suit Demand Refusal & Bad Faith Standards

Spoiler alert:  wrongful refusal of demand and bad faith standards are the same in recent Delaware Court of Chancery case: Andersen v. Mattel, Inc., C.A. No. 11816-VCMR (Del. Ch. Jan. 19, 2017, Op by VC Montgomery-Reeves).  

But sometimes a reminder that the law is the same and can be clearly stated is worth a blog post in its own right.  Professors can use this as a hypo or case note and those in the trenches can update case citations to a 2017 (and 2016) case.

In Andersen v. Mattel, Inc.VC Montgomery-Reeves dismissed a derivative suit, holding that plaintiff did not prove wrongful refusal of pre-suit demand.  The derivative action claimed that the Mattel board of directors refused to bring suit to recover up to $11.5 million paid in severance/consulting fees to the former chairman and chief executive officer who left in the wake of a falling stock price. Plaintiff challenged disclosure discrepancies over whether Stockton resigned or was terminated and the resulting entitlement to severance payments.  Mattel's board of directors unanimously rejected the demand after consultation with outside counsel, 24 witness interviews and a review of approximately 12,400 documents.

The relied upon case law is unchanged, but the clear recitation of the law is worth noting:

Where, as here, a plaintiff makes demand on the board of directors, the plaintiff concedes that the board is disinterested and independent for purposes of responding to the demand. The effect of such concession is that the decision to refuse demand is treated as any other disinterested and independent decision of the board—it is subject to the business judgment rule. Accordingly, the only issues the Court must examine in analyzing whether the board’s demand refusal was proper are “the good faith and reasonableness of its investigation. (internal citations omitted)

To successfully challenge the good faith and reasonableness of the board's investigation, Plaintiff's complaint was required to state particularized facts raising a reasonable doubt that: 

(1) the board’s decision to deny the demand was consistent with its duty of care to act on an informed basis, that is, was not grossly negligent; or (2) the board acted in good faith, consistent with its duty of loyalty. Otherwise, the decision of the board is entitled to deference as a valid exercise of its business judgment.

First, Plaintiff challenged the board's demand refusal on the grounds that they did not disclose the investigation report or the supporting documents in conjunction with the demand refusal.  The Court was unpersuaded given that Plaintiff had the right to seek the report and records through a Section 220 demand, but chose not to do so.

Second, Plaintiff challenged the board's demand refusal on the grounds that it failed to form a special committee. Absent any facts that the Mattel board considering the demand was not independent, there was no requirement for the board to form a special committee.

Third, and final, Plaintiff challenged the board's good faith in rejecting the demand on the grounds that Stockton's employment was not voluntarily terminated. The court cautioned that:

[T]he question is not whether the [b]oard’s conclusion was wrong; the question is whether the [b]oard intentionally acted in disregard of [Mattel’s] best interests in deciding not to pursue the litigation the Plaintiff demanded. [T]he fact that the [b]oard’s justifications for  refusing [the] demand fall within ‘the bounds of reasonable judgment’ is fatal to [the] claim that the refusal was made in bad faith. (citing to Friedman v. Maffei, (Del. Ch. Apr. 13, 2016))

Francis Pileggi at the excellent Delaware Corporate and Commercial Litigation Blog first brought this case to my attention.  Practitioners and Professors alike should be certain to include his blog on your weekly round up.  He is a sure source of concise and insightful summaries of the latest Delaware court developments.  

-Anne Tucker

January 25, 2017 in Anne Tucker, Corporate Governance, Corporations, Delaware, Lawyering, Litigation, Shareholders, Teaching | Permalink | Comments (0)

Tuesday, January 24, 2017

Alaska LLC Veil Piercing at Crossroads: A Chance to Get it Right

Friend and co-blogger Marcia Narine Weldon sent me a news article from Alaska discussing a "piercing of the corporate veil" claim for an LLC.  

The City and Borough of Juneau demolished the Gastineau Apartments and is trying to get hold members of Gastineau Apartments LLC, apparent owners of the building liable for the $1.4 million demolition costs. Demolition cost more than the land is worth, so the suit is seeking to have the owners of the LLC, Camilla and James Barrett, pay the bill because they missed deadlines to repair or demolish the property.

 

The article reports:

At issue before Juneau Superior Court Judge Philip Pallenberg is the legal concept of “piercing the corporate veil.” It would allow legal action against the Barretts, who controlled Gastineau Apartments LLC.

Defense Attorney Robert Spitzfaden had argued that the Barretts should remain shielded from liability. But the judge noted that the defendants had allowed their limited liability corporation to be dissolved after missing filing deadlines with the state.

“It’s clear that the Barretts were not always clear to observe the formal legal requirements of their LLC,” Judge Pallenberg said from the bench.

A quick review of Alaska LLC law did not make clear to me that LLCs in the state have formal requirements that would be implicated in this case.  If the main reason that the LLC did not pay the bills was a mere lack of money, there is no reason to pierce the veil. It's just a failed venture.  Sure, the Barretts should have gone followed the appropriate processes, but it cannot be that the fact that the Barretts "allowed their limited liability corporation [author's note: it's an LLC] to be dissolved after missing filing deadlines with the state" is sufficient to support veil piercing."  

Imagine the same scenario, but the building had value. Would missing deadlines and allowing the land owned by LLC to be automatically transferred to the Barretts?  Even if there were other creditors?  I think not.  

Perhaps there is more to this case than the article reveals, but this looks a lot like a lack of entity funds is the only issue, and a lack of funds (on its own) should not be sufficient for veil piercing, especially in a property case where the property can be forfeited.  If the city or state wants to make a law making individuals liable, then fine, but this looks like a bad case for veil piercing and a possible summary judgment case. I look forward to seeing if Alaska analyzes this one right at trial.  

January 24, 2017 in Corporations, Joshua P. Fershee, LLCs | Permalink | Comments (5)