Tuesday, January 26, 2016
At the request of Tom Rutledge, chair of the American Bar Association Section of Business Law's Committee on LLCs, Partnerships and Unincorporated Entities (that sure is a mouthful!), I am passing on the following:
While the dates are still being resolved, this October, 2016, the Committee of LLCs, Partnerships and Unincorporated Entities will again be sponsoring a two-day LLC Institute in Arlington, Virginia. This program brings together more than 100 high-level practitioners and academics to review a variety of issues involving the law of unincorporated business organizations. In recent years presentations have been made by Joan Heminway, Carter Bishop, Dan Kleinberger, Colin Marks, Michelle Harner and Benjamin Means. I think each will vouch for the quality of the program.
We are actively soliciting proposals for panels. If you are working on something, or if there is something you would like to discuss before an audience that I can guarantee will be “hot”, please let me know.
Indeed, I can vouch for the program, at which I have presented twice. There typically is an opportunity presented to write a short piece for Business Law Today, if you are interested. My contribution from the 2015 LLC Institute (a real page-turner--not) can be found here.
The Wall Street Journal yesterday reported that oil and stocks are working together closer than they have in twenty-six years.
Oil and stock markets have moved in lockstep this year, a rare coupling that highlights fears about global economic growth.
As oil prices tumbled early in 2016, global equities recorded one of their worst-ever starts for a new year. On Monday, oil and stocks were lower again. The S&P 500 index was down 0.7% in midday New York trading, and Brent crude futures, the global benchmark, were down $1.37 a barrel, or 4.3%, to $30.81. That followed a joint rebound on Friday.
The correlation between the price of Brent and the S&P 500 stock index is at levels not seen in the past 26 years. January isn’t over yet, but over the past 20 trading days—an average month—the correlation is 0.97, higher than any calendar month since 1990 . . . .
The correlation may not be a strong as reports indicate, though. Some reports suggest that the correlation is not nearly as close as it seems. As this analysis explains, "[e]ven if correlations between assets are trending higher that doesn’t mean that the outcomes have to be even remotely similar. While stocks are down around 8% this year, oil has fallen nearly 20%."
The changes in commodity price correlation and volatility have profound implications for a wide range of issues, from commodity producers’ hedging strategies and speculators’ investment strategies to many countries’ energy and food policies. We expect these effects to persist so long as index investment strategies remain popular among investors.
It's hard to predict what this correlation can mean, or whether one is driving the other. Certainly a spike in oil supply demand could cause an increase in oil prices, and that demand would like help support the stock market. But oil prices could stay low, and we could still see the market go up if other indicators make investors happy.
Sales of trucks and sport utility vehicles are rapidly outpacing sales of all other vehicle types in the U.S. as consumers ditch four-door sedans and flock to a seemingly endless selection of small, midsize and gargantuan SUVs. According to 2015 sales data released by the world’s top automakers on Tuesday, trucks and SUV sales dominated last year.
We'll see how long it lasts. As they say, the cure for low prices is low prices, and the cure for high prices is high prices. For now oil and gas are low -- the market will fix that one way or another soon enough.
Monday, January 25, 2016
I was going to blog today about Usha Rodrigues’s article on section 12(g) of the Exchange Act, but my co-blogger Ann Lipton stole my thunder over the weekend. If you’re interested in securities law and you haven’t read Ann’s excellent post on section 12(g), you should. Ann discusses Usha Rodrigues’s article on the history and policy of section 12(g); if you haven’t read it, I strongly recommend it. It’s available here. (Even if you’re not interested in reading about section 12(g), I highly recommend Usha’s scholarship in general. I’ve read several of her articles and blog posts over the last few years; she has become one of the leading commentators on securities and corporate law. She blogs at The Conglomerate.)
Instead of discussing section 12(g), I’m going to talk about exams. I finished grading my fall exams about a month ago and I’ve had time to reflect on them. The main reason students don’t do well on exams is that they don’t know or understand the material. But I’ve been reflecting on the difference between exams that are pretty good and exams that are excellent. Those students all know the material, so that’s not the difference.
One of the major differences between a good exam and an excellent exam is in how well students indicate the level of uncertainty in the law.
Sometimes, the law is clear and the answers to issues are certain. Sometimes, the answer is a little fuzzy, but the available authorities point strongly in a particular direction. Sometimes, the answer is completely unclear.
The best exam answers differentiate among those different possibilities and indicate the certainty of the author’s conclusion as to each issue. Bad answers don’t do that. They provide a definite “yes” or “no” to an issue when an unqualified answer is unwarranted. Or they go through a long list of arguments (“on the one hand, . . . ; on the other hand, . . . ) without reaching a conclusion or even indicating which side has the better argument and why.
I can always tell from reading exams which students I would want to consult as attorneys, and this is one of the clues.
Sunday, January 24, 2016
I usually limit myself to 5-6 tweets in this post, but for some reason I just couldn't bring myself to cut any of the below, so you will need to click "continue reading" at the bottom of this post if you want to see them all.
Saturday, January 23, 2016
Back in the heady days of 2011, everyone wanted Facebook shares, but Facebook was not yet publicly traded. It was close to bumping up against the then-500 shareholder-of-record threshold, however, which would have triggered reporting requirements under Section 12(g) of the Exchange Act. As a result, Goldman Sachs developed a single investment vehicle to allow clients to invest in Facebook indirectly; the vehicle would purchase Facebook shares (and count as a single shareholder), and then Goldman clients would buy shares of the vehicle. Eventually Goldman ultimately was forced to modify its plan due to a different SEC rule, so its legality was never tested.
Fastforward to 2016. The JOBS Act has now upped the shareholder threshold to 2000 shareholders of record (or 500 unaccredited shareholders), and eliminated the rule that tripped up Goldman’s earlier efforts, so Morgan Stanley and Merrill Lynch are playing the game again with Uber shares. Accredited investors will have the opportunity to buy interests in New Riders LP, whose sole assets will be stock in Uber.
(okay, different New Riders LP).
The minimum price tag is $1 million through Merrill, or a paltry $250K through known-populist Morgan Stanley. The 290-page offering materials are heavy on risk disclosures, but fail to include any financial information about Uber; instead, investors are urged to trust Morgan Stanley’s and Merrill’s valuation.
[More under the jump]
Friday, January 22, 2016
Two weeks ago I posted about whether small businesses, start ups, and entrepreneurs should consider corporate social responsibility as part of their business (outside of the benefit corporation context). Definitions of CSR vary but for the purpose of this post, I will adopt the US government’s description as:
entail[ing] conduct consistent with applicable laws and internationally recognised standards. Based on the idea that you can do well while doing no harm … a broad concept that focuses on two aspects of the business-society relationship: 1) the positive contribution businesses can make to economic, environmental, and social progress with a view to achieving sustainable development, and 2) avoiding adverse impacts and addressing them when they do occur.
During my presentation at USASBE, I admitted my cynical thoughts about some aspects of CSR, discussed the halo effect, and pointed out some statistics from various sources about consumer attitudes. For example:
- Over 66% of people say they will pay more for products from a company with “good values”
- 66% of survey respondents indicated that their perception of company’s CEO affected their perception of the company
- 90% of US consumers would switch brands to one associated with a cause, assuming comparable price and quality
- 26% want more eco-friendly products
- 10% purchased eco-friendly products
- 45% are influenced by commitment to the environment
- 43% are influenced by commitment to social values and community
- Those with incomes of 20k or less are 5% more willing to pay more than those with incomes of $50k or more
- Consumers in developed markets are less willing to pay more for sustainable products than those in Latin America, Asia, the Middle East, and Africa. The study’s author opined that those underdeveloped markets see the effects of poor labor and environmental practices first hand
- 75% of millennial respondents, 72% of generation Z (age 20 and younger) and 51% of Baby Boomers are willing to pay more for sustainable products
- More than one out of every six dollars under professional management in the United States—$6.57 trillion or more—is invested according to socially-responsible investment strategies.
- 64% of large companies increased corporate giving from between 2010 and 2013.
- Among large companies giving at least 10% more since 2010, median revenues increased by 11% while revenues fell 3% for all other companies
From marketing and recruiting perspectives, these are compelling statistics. But from a bottom line perspective, does a company with lean margins have the luxury to implement sustainable business practices? Next week I will post about CSR in larger companies and the role that small suppliers play in global value chains. This leaves some small businesses without a choice but to consider changing their practices. In addition, in some ways, using some CSR concepts factors into enterprise risk management, which companies of all size need to consider.
January 22, 2016 in Business Associations, Corporate Governance, Corporations, CSR, Current Affairs, Entrepreneurship, Ethics, Management, Marcia Narine, Nonprofits, Research/Scholarhip, Social Enterprise | Permalink | Comments (1)
I am taking a MOOC from University of Illinois and Coursera on digital marketing. I've been trying to take at least one course a semester. Both the underlying material, and the intricacies of online education have been interesting. I chose this course because I have family members in the digital marketing area, and I am taking (and discussing) this course with them.
Later, I may discuss some of the substantive take-aways from the course --- I have completed about 50% of the course so far --- but in this post I want to discuss business/academic entanglement.
In this digital marketing class, an assignment on co-creation (by firms & their customers) consisted of creating an online account with Starbucks, submitting an idea for consideration, and reporting how the idea was received by commenters. This was a useful exercise and it made the concept come alive, but I couldn't help wondering if Starbucks was somehow involved with University of Illinois and/or Coursera in creating this assignment. To be clear, I have no idea whether Starbucks was or was not involved. But, in any event, with the thousands (and maybe 10s of thousands) of people who are taking this course, this assignment seemed like a win for Starbucks. Well, actually, this idea submission portion of Starbucks' website was not functioning properly, leading to many, many complaints from the students on the course discussion boards, but the assignment could have been a big win for Starbucks. And eventually, a work-around was suggested, and I assume that many, many people still created online accounts with Starbucks when they might not have otherwise. The creation of those accounts, and the simple brand exposure, certainly has some value to Starbucks.
Anyway, my question is this: Are course creators ethically obligated to disclose entanglement or abstain from entanglement between businesses and their educational institutions?
Even if there is no entanglement (I am thinking about direct or indirect payments for the assignment), how should potential benefits to the educational institution be treated? For example, what if the University of Illinois plans to pitch Starbucks CEO Howard Schultz on making a contribution toward a new campus building and plans to bring up this assignment? Again, I don't know if there was any entanglement here, and I assume it was just an innocent and useful assignment. But with the increasing corporatization of higher education, I wonder about the appropriate boundaries between businesses and universities.
Thoughts from our readers are welcomed.
Wednesday, January 20, 2016
Employers and hiring coordinators are busy people. Like law review editorial boards, they get many more qualified submissions than they need for the openings they have. One of our challenges in advising students in the job search game is making their submissions stand out. Of course, personal connections and timing are very helpful in this regard. But résumés and cover letters also are important and may make a real difference in obtaining interviews and getting desired offers of employment.
As we settle into the new semester, my unemployed 3L students have begun to seek help from me in their quest to launch their careers post-graduation. One resource I highlight is the BLPB. Co-blogger Haskell Murray earlier posted some super information about résumés and interviews. I followed, at his suggestion, with a post on cover letters (and then one on following up with firms that have not initially extended an interview invitation). This post adds some new details on cover letters that respond to common mistakes I see and questions I have been asked about my earlier post on that topic.
Specifically, I want to describe better the key personalized part of the cover letter--the body of the letter between the introductory and closing paragraphs. This is the segment of the letter that, if everything else looks and sounds right, calls the applicant out on an individualized basis and holds the promise of positively distinguishing her or him from other applicants. Here's what I said about this section of the cover letter in my original post:
The body of the letter is the most important as a matter of content. It is where you get to show that you have what the employer needs and wants for the position. You should rely on any position announcement you have to write this part of the letter. If there is no announcement or other position description, seek information about or rely on your knowledge of the position to identify the employer's needs and wants. Summarize for yourself from those needs and wants the specific skills and experience being sought by the employer. Then, demonstrate, preferably by example, how you fill these needs and satisfy these wants in a few (no more than three) short paragraphs. Avoid repeating what's on your resume and refrain from using characterizing adjectives and adverbs. Show the reader that you are a good fit and among the most qualified folks for the job. Don't just say it.
There's a lot in that passage! Note also that the comments to that original post add a bit more on some of these (and other) matters. Critical embedded messages in the quoted paragraph include the desirability of:
- presenting customized information that directly addressees the job requirements set forth in the position announcement (or any other manifestations of the prospective employer's needs and wants);
- demonstrating, rather than characterizing, the applicant's "fit" through the information provided;
- avoiding mere repetition of information included in your résumé; and
- avoiding the use of unnecessary adjectives and adverbs.
I address each in turn below.
Second Circuit Affirms High Misconduct Standard for Caremark Claims in Cent. Laborers’ Pension Fund v. Dimon
In early January, the Second Circuit Court of Appeals ruled in Cent. Laborers’ Pension Fund v. Dimon to affirm the dismissal of purported shareholder derivative claims alleging that directors of JP Morgan Chase--the primary bankers of Bernard L. Madoff Investment Securities LLC (“BMIS”) for over 20 years--failed to institute internal controls sufficient to detect Bernard Madoff’s Ponzi scheme. The suit was dismissed for failures of demand excuse. Plaintiffs contended that the District Court erred in requiring them to plead that defendants “utterly failed to implement any reporting or information system or controls,” and that instead, they should have been required to plead only defendants’ “utter failure to attempt to assure a reasonable information and reporting system exist[ed].” (emphasis added). The Second Circuit declined, citing to In re General Motors Co. Derivative Litig., No. CV 9627-VCG, 2015 WL 3958724, at *14–15 (Del. Ch. June 26, 2015), a Chancery Court opinion from earlier this year that dismissed a Caremark/oversight liability claim. In In re General Motors the Delaware Chancery Court, found that plaintiffs' allegations that:
[T]he Board did not receive specific types of information do not establish that the Board utterly failed to attempt to assure a reasonable information and reporting system exists, particularly in the case at hand where the Complaint not only fails to plead with particularity that [the defendant] lacked procedures to comply with its . . . reporting requirements, but actually concedes the existence of information and reporting systems. . . .
In other words, the Plaintiffs complain that [the defendant] could have, should have, had a better reporting system, but not that it had no such system.
The Second Circuit's opinion in Central Laborers' affirms that Caremark claims require allegations misconduct sufficient to satisfy a failure of good faith, and cannot rest solely on after-the-fact allegations of failed reasonableness of the corporate reporting system.
Tuesday, January 19, 2016
Rob Weber posted on the Columbia Law School Blue Sky Blog an article titled The Comprehensive Capital Analysis and Review and the New Contingency of Bank Dividends, highlighting his recent paper on the topic.
In both the post, and in greater detail in the paper, Rob highlights three aspects of the CCAR program:
[(1)] the significant practical implications of the CCAR for large U.S.-domiciled banks....[(2)] its reliance on discretionary judgments by regulators concerning a hypothetical, uncertain future... [and (3) the CCAR as a] “risk regulation” regime – a designation developed in the environmental, health, and safety (“EHS”) regulatory context that has been underappreciated, underutilized, and undertheorized in the financial regulatory context.
Focusing on this third aspect, Rob states that:
The risk regulation model ... confronts head-on the necessity of basing regulatory intervention into otherwise private activity on a discretionary assessment of an uncertain, hypothetical, and conjectural harm. It is no objection that the harm has not yet occurred. The uncertainty of the harm is a feature, not a bug, of the system.
Section 2 of the Sherman Act provides:
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
The Washington Examiner, among other outlets, reports that President Obama and former Republican presidential candidate Mitt Romney are fighting a section 2 lawsuit together. The lawsuit, filed by a group of third-party political groups including the 2012 nominees for the Libertarian Party and the liberal Green Party, claims the Commission on Presidential Debates committed antitrust violations:
This action challenges a per se continuing illegal conspiracy or agreement between the RNC, the DNC, and the Commission, with the direction, assistance, and collusion, over the course of many years, of several co-conspirators and affiliated persons, including Fahrenkopf, McCurry, Obama, Romney, and other presidential candidates of the Republican and Democratic Parties. The conspiracy commenced prior to the formation of the Commission, and no Defendant has withdrawn or abandoned it. The overall objective was and continues to be the entrenchment market power in the presidential debates market, the presidential campaign market, and the electoral politics market of the two major political parties by exercising duopoly control over presidential and vice presidential debates in general election campaigns for the presidency. That objective was achieved in 2012 when the individual Plaintiffs were arbitrarily excluded substantially because of hostility towards their political viewpoints from presidential and vice presidential debates between the nominees of the two major parties organized and conducted by Defendants on October 3, 2012, October 11, 2012, October 16, 2012, and October 22, 2012, respectively.
Romney's brief responds:
Presidential debates are a quintessential political, non-commercial activity... .
The antitrust laws were not intended to regulate non-commercial markets like the 'marketplace of ideas' (even assuming such 'markets' exist as anything more that metaphors). Plaintiffs' claims therefore fail. . . . .
Soliciting votes is fundamentally different from selling widgets. The former implicates core constitutional values that are absent from the commercial arena. The First Amendment forbids Congress from telling political candidates where to go, what to do, what to say, or— crucially here—who they have to debate. Just as President Obama has an absolute right to refuse to debate every person who attacks his Administration, Governor Romney had an absolute right during the 2012 presidential campaign to refuse to debate Gary Johnson, Jill Stein, or any other candidate waging a long-shot bid for the presidency. The only possible sanction for that refusal is a political one.
I'm not an antitrust expert, but this case seems like a loser even if the concept of the claim is viable. The Examiner piece quotes an expert, Geoffrey Manne, executive director of the nonpartisan think tank International Center for Law and Economics, who said the case was out of the ordinary, but not inconceivable:
"The short answer is that it is not crazy... The commission is a private entity, not a government one, so it doesn't get immunity," he said, adding, "The question is whether the activity amounts to a restraint of trade." It was hard to tell how a court might come down on that, he said.
Manne knows his stuff, and I trust his point that the claim could have legs. I also agree a court might buy it. Still, I think it ultimately fails in most courts. It seems to me that it is reasonable to have some limits on who participates in debates (do we all get stage time?), and because of that, plaintiffs would likely have to show that the current structure is an unreasonable restraint on trade. Then you start getting into where to draw those lines, and I think you have a problem with the marketplace. That is, not all speech is being shut out, and two people don't have to agree to share a platform with others.
Furthermore, if people cared, CNN or FoxNews or TruTV or HBO, could have debates with the other candidates and invite all of them. I'd argue they should. But the fact that people don't vote with their eyeballs suggests the restraint isn't really as simple as the debate commission. It's a lack of interest. I'd like to see a broader discussion of ideas -- maybe a real platform of people who think government should be inclined to stay out of bedrooms and boardrooms, for example. But I don't think the Commission on Presidential Debates is really responsible for the nation's inability to demand more information, more interaction, and more accountability.
Maybe in 1976 or even 1986, but not in 2016. There's just too many options for the other candidates to get their word out if the people care. People should care, but I don't think antitrust law was designed to make that happen, nor do I think it can.
Monday, January 18, 2016
“Call me Ishmael.”
Legal scholarship is in many ways like whaling. We don’t use harpoons, except in especially contentious symposia. And most of the mammalian harm is emotional, rather than physical. But there are many similarities.
1. Whales, Once Abundant, Are Disappearing
In the early days of legal scholarship, novel ideas were abundant. Blackstone, Story, and Kent were out there as background, but there was much unexplored territory—both general theoretical work and summaries of the law. Whales were abundant. Today, the major theoretical positions have been staked out ad infinitum, summaries and restatements of the law are abundant, and the few remaining whales lie on the edges—inspired primarily by new developments in technology and markets.
Much of today’s scholarship merely applies old ideas to new marginal questions. (Witness the work of many late-arriving law-and-economics and critical-legal-studies scholars.) The number of truly novel ideas is dwindling; most of the whales are gone.
2. To a Desperate Whaler, Everything is a Whale
The whales are rare, but the demand for “cutting-edge” scholarship has not ceased. Tenure at most schools depends on it. And the number of legal writers has increased substantially since those early days. Fewer whales; more whalers.
Faced with this mismatch between expectations and possibilities, the tendency is to call anything one finds in the ocean—down to the smallest minnow—a whale. How many times have you read an introduction claiming to offer a significant contribution to the literature, only to find a relatively trivial point? And sometimes the conclusion is not just trivial, but clearly incorrect. Not even a fish or a whale; just an old shoe.
3. Chasing White Whales
“Towards thee I roll, thou all-destroying but unconquering whale; to the last I grapple with thee, for hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.”
Some scholars spend their entire careers chasing the elusive white whale—the profound insight that all their predecessors have missed that will rock the legal world. It sometimes happens, but only rarely. Most claims of white whales are wrong. And many of us toil on, wasting time on grand theories that ultimately prove unsuccessful, when we might have made useful contributions of a more pedestrian variety.
4. If You Do Catch a Whale, Spend the Rest of Your Life Talking About It
If Ahab had caught the white whale, he would have spent the rest of his life in front of the stove describing his conquest to anyone who would listen. (This is a familiar scene to those of you who know people who love to fish.) The same thing sometimes happens to the few legal scholars who do come up with a profound insight. They spend the rest of their careers applying that insight in marginally different ways.
5. If You Can’t Find a Whale, Talk About Whaling
Some people realize they’re not going to find a whale, so they spend much of their time talking about whaling—criticizing other people’s scholarship; writing about legal scholarship and the publication process. It’s much easier than actually trying to find a whale yourself. Mea culpa.
[The quotes, for those not familiar with the work, are from Herman Melville’s Moby Dick. And, if you’re not familiar with Moby Dick, why not? It’s a masterpiece.]
Sunday, January 17, 2016
Development Studies Workshop - Organized by the Banque Populaire Chair in Microfinance of the Burgundy School of Business (Dijon, France)
Development Studies Workshop
Organized by the
Banque Populaire Chair in Microfinance of the Burgundy School of Business (Dijon, France)
In collaboration with
BG Foundation (India)
With Support from
Theme: Spirituality, Organization and Development
Dates: 28th and 29th October, 2016
Venue: Gurgaon/Delhi (India)
At a time of terrorism, war, and general confusion on human values, there is increasing concern to develop the world in a more sustainable manner. Harmony with nature, ethics, morality and even spirituality is being sought at an individual level, at an organizational level and at the macro level, while continuing the focus on development and making life worth living for all our fellow human-beings. At this juncture, more and more academics and practitioners are turning towards religion to see if some spiritual lessons can be incorporated for an enhanced work-life. At the very least, understanding the spiritual culture of different persons is important to work in global corporations. It is even more important to understand large waves of immigrants and to mentally prepare for their differences in values. The theme of this workshop is therefore relevant to promote human understanding in a globalized world.
A research workshop's primary aim is to help each other improve our papers so that we can publish in high ranked international journals and specialized books on a topic. For this, we would like to bring together a large diversity of researchers from different backgrounds to focus on a relevant and interesting theme, which is meaningful to the present moment.
While papers in any of these individual themes is welcome, papers combining two or more elements of spirituality, organization and economic development will be given preference.
Examples of possible topics combining two themes (not exclusive, not exhaustive) to spark your thoughts:
- Spiritual Development
a. Yoga in the workplace
b. Gandhism and sustainable development
c. Organizing Ayurvedic health systems
- Organizational Development
a. Organization Leadership and community development
b. Corporate transformation through Islamic Finance
c. Managing Conflicts through the Art of Living
- Economic Development
a. Microfinance and Hinduism
b. Confucianism and development of intellectual property rights
c. Economics of Spiritual tourism of Christian holy places
Please send abstracts by April 15, 2016 to firstname.lastname@example.org.
Guidelines for Abstracts (150 to 300 words)
Title of the paper
Author Information: Names, designations and affiliations, current locations (city, country)
Impact (on new research or on new practices, policies)
Value added/ Originality
There will be no parallel sessions. A minimum of six and a maximum of fifteen working papers can be presented.
Abstracts will be selected based on conformity to the theme and diversity of origins.
A few people whose abstract is not accepted can opt for being discussants or participants, subject to place availability.
[more below the fold]
"disregarding limited liability..for..unified economic enterprise that operates in..high-risk host country" 72 Wash&Lee L Rev 1769 #corpgov— Stefan Padfield (@ProfPadfield) January 15, 2016
Saturday, January 16, 2016
There has long been a debate about whether corporations should be forced to disclose non-financial information about their operations, particularly information pertaining to social responsibility. For example, as Marcia Narine has repeatedly discussed, Dodd-Frank’s “conflict minerals” disclosure requirement may be not only ineffective to pressure companies into making ethical purchasing decisions, but may even be counterproductive, by causing companies to pull out of the Congo entirely (thus devastating the regional economy) rather than endure the expense of ensuring that their purchases do not indirectly finance armed groups.
Further to this issue, Hans B. Christensen, Eric Floyd, Lisa Yao Liu, and Mark Maffett have recently released a paper studying the effects of Dodd-Frank’s requirement that mining companies disclose information about their compliance with the Federal Mine Safety & Health Act of 1977. They find that after mine-owning companies became subject to Dodd-Frank’s disclosure requirements, they demonstrated a marked decrease in safety violations and injuries, counterbalanced by a decrease in productivity (apparently because they are spending more time on safety compliance). They also find that mines that disclose an “imminent danger order” from regulators post-Dodd Frank not only experience an immediate stock price reaction (especially the first time such an order is received, as compared to subsequent orders), but also experience a change in investor base – specifically, mutual funds (and particularly mutual funds that focus on “socially responsible investment”) divest their holdings.
I find these results fascinating for several reasons.
First – as the authors point out – mine safety information has always been publicly available, but hard to decipher. It’s located on the website of the Mine Safety and Health Administration in a searchable database. The Christensen et al. study is a nice demonstration of the principle that piecemeal, hard-to-decipher information has less of an impact than information compiled in SEC filings. Which, by the way, was exactly what the court held in In re Massey Energy Co. Sec. Litig., 883 F. Supp. 2d 597 (S.D. W. Va. 2012). There, plaintiff-stockholders of Massey Energy argued that the company misled investors about its safety profile. The defendants argued that information about their safety record was publicly available in the MSHA database. The court rejected this “truth on the market” argument, recognizing that difficult-to-parse mine-level data might not offset more prominent misstatements announced to the investing public. This new study validates the court’s reasoning in Massey.
Second, the paper seems to document a real, substantive effect of disclosure on companies' behavior. "Name and shame" apparently does work, at least in this context.
Third, the paper adds to the literature regarding the effects of investor “taste” on asset prices– representing a challenge to simpler models that imagine that asset pricing is purely a function of expected returns. Of course, it is possible that investors treat mine safety data as relevant to returns, to the extent that the higher levels of production from unsafe mines comes at the cost of a higher risk of an expensive mine disaster. But the fact that socially-responsible funds react more strongly to mine-safety disclosures than other funds suggests that taste is part of the story. (Caveat: I am confused as to how the authors selected their mutual funds for the study; if they compared socially responsible funds to all mutual funds, including index funds, the greater reaction of socially-responsible funds may be traceable to the fact that the socially-responsible funds are more likely/able to respond to news about individual companies).
In any event, none of this is to say that disclosure is the best way to regulate corporate behavior – direct command and control, or economic incentives, may be preferable for a lot of reasons, including the fact that disclosure only impacts public companies – but, well, it’s not nothing.
Friday, January 15, 2016
Perhaps the most common question I receive from the MBA students in my Decision Making & Negotiation Skill class is - what do I do when the other side is completely unreasonable or evil?
Robert Mnookin (Harvard) explores this question in his book Bargaining with the Devil: When to Negotiate and when to Fight.
I won't attempt to summarize the entire book, but I share a few representative quotes below. (Page numbers correspond to the 2010 hardback edition).
"By 'Devil' I mean an enemy who has intentionally harmed you in the past or appears willing to harm you in the future. Someone you don't trust. An adversary whose behavior you may even see as evil." (pg. 1)
"An act is evil when it involves the intentional infliction of grievous harm on another human being in the circumstances where there is no adequate justification." (pg. 15)
Consider "Interests [of both sides]...Alternatives [of both sides]...Potential negotiated outcomes...Costs...Implementation...What issues of recognition and legitimacy are implicated in my decision" (pgs. 27-34).
"I believe there is reason to be deeply concerned whenever an agent or representative allows personal morality to override a rational analysis favoring negotiation - even with a devil." (pg. 49)
"If you bargain with the Devil, develop alternatives. You will need them if the deal doesn't work out." (pg. 81)
Using "empathy and assertiveness....A good negotiator has to do a lot of both." (pg. 134)
Remember to "listen first, talk second." (pg. 177)
"A common occupational hazard for mediators is getting hooked into taking responsibility for finding a solution....[The mediator's] responsibility is to help the parties better understand each other and their predicament, and then fashion their own solution." (pg. 237)
"'Should you bargain with the Devil?' If I were pressed to provide a one-sentence answer to this question, it would be: 'Not always, but more often than you feel like it.'" (pg. 261)
This is a difficult topic and doesn't fit neatly into bullet pointed format, but Robert Mnookin uses case studies throughout the book to explain his methods. The case studies come from political, business, and family disputes. The wise solutions are fact-dependant, but after reading the case studies you get a better sense of how to deal with difficult negotiations.
Thursday, January 14, 2016
Last week, I threatened that I might have outtakes from the the Association of American Law Schools ("AALS") panel discussion for the Section on Agency, Partnerships, LLCs and Unincorporated Associations, "Contract is King, But Can It Govern Its Realm?". The "conversation" between panelists and among panelists and audience members was rich and far-ranging, although much of it was not "new news" to those of us focused on the many legal questions relating to contracts in the unincorporated business associations space. Here is my brief additional comment on the panel discussion, ex post. A recording of the session should later be available, for those interested in listening in.
Although most of the discussion was intentionally not scripted (but, rather, organized by a set of questions shared with the panelists in advance), a few of us did have assignments. I was charged with two key areas of earmarked participation. First, I accepted an invitation to identify and categorize non-Delaware state law issues at the intersection of unincorporated business association law, contract law, and legislative drafting. Second, I was invited to comment on my work on the LLC [operating] agreement as contract (or non-contract). Although each topic is worthy of attention, I already have written a bit about the latter in this forum. So, I will focus here on just the state law piece.
This specific area of focus, the non-Delaware issues, is a favorite area of mine in LLC law and business associations law more generally. As teachers and scholars, we all-too-often focus on Delaware law--and most often, for good reason. But sometimes we ignore, to our detriment, the fact that other laws, while not leading or as well developed, deserve attention in their own right--attention that may help the judiciary, the legislature, and the bar (including our former students). So, I took on this first assignment for the AALS panel to help ensure that we consider state laws more broadly. And for those who have done any work in this area, you know the specific doctrine can vary!
I made three observations on the non-Delaware state law issues relating to whether contract is king in LLC law. First, I observed that states describe the contractarian nature of their LLC laws differently. Some, like Delaware, articulate a policy of giving maximum effect to principles of freedom of contract and the enforceability of LLC [operating] agreements. See, e.g., the statutes in Indiana, Kansas, Kentucky, Missouri, New Mexico, and Virginia. At least one state, Pennsylvania, declares that contract is king unless otherwise noted in the certificate of organization or otherwise in the statute. A number of states, including my home state of Tennessee, have what I refer to as "RUPA-like" provisions (i.e., statutory language similar to that included in the Revised Uniform Partnership Act) that merely, without being subject to an overarching policy as to interpretation, give effect to the provisions in the LLC [operating] agreement unless those provisions are expressly proscribed by statute.
My second observation was that states treat exculpation and private ordering with respect to fiduciary duties and the implied covenant of good faith and fair dealing differently. Again, some states follow Delaware in allowing (1) exculpation except for bad faith violations of the implied covenant of good faith and fair dealing and (2) the elimination of fiduciary duties (but not the implied covenant of good faith and fair dealing). Kansas is an example that I noted. Mississippi, however, limits exculpation in ways not unlike those used in corporate law. Colorado LLC law provides that fiduciary duties may be restricted or eliminated if not "manifestly unreasonable" and allows for the provision of standards for compliance with the implied covenant of good faith and fair dealing (but does not permit its elimination). Tennessee, the District of Columbia, and others use a RUPA-like approach that does not permit exculpation and allows tailoring, but not elimination, of fiduciary duties (under separate standards for loyalty and care) and the articulation of standards by which performance of the obligation of good faith and fair dealing is to be measured, if not "manifestly unreasonable".
Finally, I observed that state legislatures may or may not focus on these issues or the differences among the state statutes concerning these matters. I noted, however, based on my experiences in Massachusetts and Tennessee, that the bar is attentive to both the issues and (at least to some extent) the differences. In other words, I see anecdotal evidence of conscious path-dependence in business entity legislation planning and drafting.
I wonder if these observations ring true to you. I also wonder if you have your own observations in this regard. Let me know in the comments.
On Sunday, the world lost a musical giant in David Bowie, who died of cancer at 69. He was the first artist who that made me a true music fan. Like buy all the records, read the biographies, hang-posters-on-the-wall type fan. I grew up with a love for Motown music, especially Smokey Robinson, the Supremes, and the Four Tops, that I still have, but my appreciation for that music came from listening to my parent's records.
When it came time to choose my own artists, other kids were into Led Zeppelin and Pink Floyd, but Bowie emerged as my guy. He was later followed by bands like R.E.M., the English Beat, and The Cure, among others, as I moved into more of the college radio scene, and I really liked Joan Jett, but Bowie was always The Guy. My fandom started with an album I poached from my aunt, Heroes. I also got ahold of David Live (1974), and then worked my way back before going forward. The Rise and Fall of Ziggy Stardust and the Spiders from Mars, Space Oddity, The Man Who Sold the World, Aladdin Sane, Diamond Dogs, and Hunky Dory were the next to follow. I even own a copy of the Christmas record featuring David Bowie and Bing Crosby.
Let's Dance came out in 1983. It was a hit, and yet criticized for being too mainstream. I was twelve, and thought it was great. I still do, though in a very different way than much of his other work. The connected tour for the album, the Serious Moonlight Tour, featured Bowie in a bow tie. I thought it was the coolest thing. I bought one and learned to tie it myself. I still have the tie, and I wore it to teach my first Business Organizations class of the semester on Tuesday (and my Energy Business Law and Strategy course). Contrary to what some want to believe now that E. Gordon Gee is the president of my institution, bowties originated with Bowie for me, not President Gee. (And yes, it is likely that only a law professor could connect someone as cool as Bowie with bowties, and probably only this law professor.)
I write this as much for me, as anything, I suppose, but a few things about David Bowie strike me as relevant to this blog. First, he was always ahead of his time, looking for what was next. He didn't back down, he said what he thought in a strong, but usually respectful way. He was, unfortunately, well ahead of his time in criticizing MTV for its lack of programing diversity. Not so much for calling them out -- others did that, too -- but in the way he did it, as you can see here.
His eye for talent was remarkable, too. David Sanborn played sax on David Live. Luther Vandross sang backup on Young Americans. Stevie Ray Vaughn played on Let's Dance, and Reeves Gabrels (now with The Cure) with Tin Machine. Adrian Belew played on Lodger. Bowie, in turn, sang back up and played sax on Lou Reed's Transformer. And his work with Iggy Pop, Queen, Tina Turner, Trent Reznor, and others crossed genres and time.
Finally, he tried creative financial vehicles. As one report explains,
In 1997, Bowie, born David Robert Jones, securitized revenue from 25 albums (287 songs) released before 1990. At the same time, he swapped distribution rights on his back catalogue for a $30 million advance on future royalties in a deal with EMI. The 10-year “Bowie Bond” he created with banker David Pullman promised a 7.9% return and raised $55 million, along with a media frenzy. A flurry of other artists followed, but the Bowie Bonds skidded toward junk status by 2004, downgraded by Moody’s from A3 to Baa3.
The trend never really took off, though. Despite never missing a payment, the bonds did not do well, though that did not appear to hurt Bowie. People got worried about online music sharing soon after the deal was struck. Still, the idea of monetizing intangible assets, was rather forward looking, even if some believe that loans, and not bonds, are the better suited to assets like music. For Bowie, in music and otherwise, new things were worth trying, even if they didn't always go as planned. I still wished I'd gotten in on that deal, regardless. I always felt like I missed out.
I know Bowie is something of an acquired taste for some (and an unacquirable one for others), but the outpouring of support following his death shows a tremendous amount of respect and admiration. He may even get his first U.S. number one album with his Blackstar album, which was recently released. Some believe the track Lazarus and the related video were his goodbye to the world. It's hard to argue it's not.
He will be missed, but I'm glad his legacy provides such a tremendous body work. I think the Sirius/XM Bowie channel should be permanent, and not just a limited-run engagement.
As I write this, I got a notice that Alan Rickman, also 69, has died of cancer. Cancer sucks. As David Bowie noted in this short, but poignant, interview from 2002, "Life is a finite thing." It sure is.
Wednesday, January 13, 2016
This post highlights SIGA Technologies, Inc. v. PharmAthene, Inc., Del. Supr., No. 20, 2015 (Dec. 23, 2015).
At the end of 2015, the Delaware Supreme Court issued an opinion affirming its earlier holding that where parties have agreed to negotiate in good faith, a failure to reach an agreement based upon the bad faith of one party entitles the other party to expectation damages so long as damages can be proven with "reasonable certainty."
Francis Pileggi, on his excellent Delaware Commercial and Business Litigation blog, provides a succinct summary of the case, available here. The parties to the suit entered into merger negotiations to develop a smallpox antiviral drug. Due to the uncertainty of the merger negotiations, the parties also entered into a non-binding license agreement, the terms of which would be finalized if the merger fell through for whatever reason. While nonbinding, the preliminary license agreement contained detailed financial terms and benchmarks. When the merger was terminated, SIGA proposed terms for a collaboration that departed from the preliminary license agreement. The Delaware Supreme Court affirmed the Court of Chancery finding that SIGA's acted in bad faith. The question of the case became what damages were due from the bad faith breach of a preliminary agreement to "negotiate in good faith,” when all essential terms have not been agreed to by the parties?
The first gem in the opinion, and something I'll be working into my damages lectures for first year contracts this spring, is that:
when a contract is breached, expectation damages can be established as long as the plaintiff can prove the fact of damages with reasonable certainty. The amount of damages can be an estimate.
What constitutes reasonable certainty changes whether the party is establishing damages are due versus the amount of the damages. And here is the second gem: the standard of proof can be lessened where willful wrongdoing contributed to the breach and the uncertainty about the amount of damages.
where the wrongdoer caused uncertainty about the final economics of the transaction by its failure to negotiate in good faith, willfulness is a relevant factor in deciding the quantum of proof required to establish the damages amount.