Sunday, May 24, 2015
"corporations..no longer..fairly characterized as an identifiable group of people acting in association" 56 Wm. & Mary L. Rev. 1673 #corpgov— Stefan Padfield (@ProfPadfield) May 19, 2015
"Orthodox economists ... use ... modelling ... that must produce ... error in the presence of ... control fraud" http://t.co/lhIjDv1fAo— Stefan Padfield (@ProfPadfield) May 19, 2015
"World’s Largest Banks Admit to Massive Global Financial Crimes, But [No One Goes to] Jail (Again)" http://t.co/GFSASslMyL— Stefan Padfield (@ProfPadfield) May 21, 2015
Sunday, May 17, 2015
"'The Wealth of Nations,' is not fully intelligible without ... first reading ... 'The Theory of Moral Sentiments.'” http://t.co/iwoSM3JtVN— Stefan Padfield (@ProfPadfield) May 10, 2015
"Should Business Appraisers Rely on Case Precedent for [lack of marketability] Discounts?" http://t.co/Pb9jKd6ZxD— Stefan Padfield (@ProfPadfield) May 13, 2015
"The Great Global Financial Crises: official investigations, past and present, 1929-2011" http://t.co/7Bp1ZoHHrw— Stefan Padfield (@ProfPadfield) May 16, 2015
Sunday, May 10, 2015
"The Curious Exclusion of Corporations from the Privileges and Immunities Clause of Article IV" http://t.co/GVPic978wM— Stefan Padfield (@ProfPadfield) May 6, 2015
Sunday, May 3, 2015
"Activists say the market-focused corporate model tends to exacerbate global inequalities." http://t.co/3LVWv7tQ4u— Stefan Padfield (@ProfPadfield) April 28, 2015
Is invoking Adam Smith "to champion domestic corporations running vast overseas empires...intellectually dishonest"? http://t.co/RGyh8jjWm5— Stefan Padfield (@ProfPadfield) April 28, 2015
"According to its opponents ... [Lex mercatoria or Law Merchant] as a uniform customary law of Europe never existed." http://t.co/DCk7ATwJm0— Stefan Padfield (@ProfPadfield) April 29, 2015
Sunday, April 26, 2015
business ethics codes: "some..research..suggests.. instrumental impacts..other studies..no discernible effect" 37 U. Haw. L. Rev. 1 #corpgov— Stefan Padfield (@ProfPadfield) April 20, 2015
"Etsy...is a B Corp...[but] was...careful to discuss community obligations as a long term benefit to the corporation" http://t.co/zmvgrYqjUy— Stefan Padfield (@ProfPadfield) April 20, 2015
Sunday, April 19, 2015
PwC report analyzes trends likely to drive future securities litigation http://t.co/hxZLHQZZHL— kevinlacroix (@kevinlacroix) April 13, 2015
Special Projects Segment: Opposition to Adopting Crowdfunding Rules: We are discussing possible rulemaking for... http://t.co/j3YqIfLfP0— TheRacetotheBottom (@RTTBCorpGov) April 13, 2015
New survey paper on M&A contracts by yours truly: http://t.co/kVnciDteTz— John Coates (@jciv) April 15, 2015
Trinity Wall Street v. Wal-Mart: 3d Circuit puts life back in ordinary business exception http://t.co/VjrI2sktal— Stephen Bainbridge (@ProfBainbridge) April 14, 2015
"power of the American executive and the American board as due in part to their influence on political ... outcomes" http://t.co/zQ2DBgnyfb— Stefan Padfield (@ProfPadfield) April 16, 2015
Sunday, April 12, 2015
"Amedisys Asks Justices to Fix Circuit Split on Loss Causation" http://t.co/hNdjFFI0Nv— Stefan Padfield (@ProfPadfield) April 8, 2015
"New White Paper: Second Wave of States Address Crowdfunding" http://t.co/JiUtkYSkZk— Stefan Padfield (@ProfPadfield) April 8, 2015
"Companies’ Pro-Equality Rhetoric Belied By Their Campaign Donations" http://t.co/AGW3YmM2Ds— Stefan Padfield (@ProfPadfield) April 12, 2015
Friday, April 10, 2015
The following comes to us from Lee Epstein, Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis.
The 14th annual workshop on Conducting Empirical Legal Scholarship, co-taught by Lee Epstein and Andrew D. Martin, will run from June 15-June 17 at Washington University in St. Louis. The workshop is for law school faculty, lawyers, political science faculty, and graduate students interested in learning about empirical research and how to evaluate empirical work. It provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data.
Participants need no background or knowledge of statistics to enroll in the workshop. Registration is here. For more information, please contact Lee Epstein.
I attended this workshop a few years ago, and thought it was excellent.
Sunday, April 5, 2015
"a survey experiment aimed at testing some of the factual claims made by the Supreme Court in Citizens United" http://t.co/02pziild2P— Stefan Padfield (@ProfPadfield) March 30, 2015
Sunday, March 29, 2015
"paucity of ... instruction ... on broad conceptions of the purpose of the corporation has important ramifications" http://t.co/VKUyRUSf8D— Stefan Padfield (@ProfPadfield) March 22, 2015
ICYMI: "S&P 500...companies referencing GRI guidelines in their sustainability reports increased...to 31% in 2014" http://t.co/foz5vZPjhr— Stefan Padfield (@ProfPadfield) March 25, 2015
Does the Trans-Pacific Partnership Agreement subordinate "national interests to those of multinational corporations"? http://t.co/WbpOxkYRzA— Stefan Padfield (@ProfPadfield) March 28, 2015
Sunday, March 22, 2015
Under Newman, unless "the tippee is particularly loquacious, sub-tippees will never be liable" http://t.co/yr6Y0sGvIE— Stefan Padfield (@ProfPadfield) March 18, 2015
"when a duty of care breach is not the exclusive claim, a court may not dismiss based upon an exculpatory provision" 2002WL31584292 #corpgov— Stefan Padfield (@ProfPadfield) March 18, 2015
SEC Chair on "the current state of shareholder activism; the shareholder proposal process; and fee-shifting bylaws" http://t.co/TMQbyNaJDt— Stefan Padfield (@ProfPadfield) March 21, 2015
Sunday, March 15, 2015
ICYMI: "UK poised to miss target for women board members" http://t.co/ybNIs96Hql— Stefan Padfield (@ProfPadfield) March 11, 2015
"Why are Top Tier Audit Failures so Common?" http://t.co/OLiPbfK60F— Stefan Padfield (@ProfPadfield) March 12, 2015
Sunday, March 8, 2015
"Lacking a voice, the court continued, a corporation cannot testify... Without a conscience, it cannot take an oath." http://t.co/zFlAJjZz6o— Stefan Padfield (@ProfPadfield) March 4, 2015
"The principles call on institutional investors to report to...stakeholders...how they are fulfilling their duties" http://t.co/ChFTbMBLi4— Stefan Padfield (@ProfPadfield) March 5, 2015
"corporate criminal prosecutions have turned the Justice Department into a kind of protection racket" http://t.co/Z0EqUZEoIv— Stefan Padfield (@ProfPadfield) March 6, 2015
"'tsunami' of unregistered & unlisted shares of small businesses expected to come on the market due to new rules" http://t.co/btkF7TB2n3— Stefan Padfield (@ProfPadfield) March 7, 2015
Sunday, March 1, 2015
The following comes to us fromJ. Scott Colesanti and Mandy Li Weiner:
To a degree large or moderate, New York shall soon be at the vanguard of Bitcoin regulation. Since last July, observers have been asked to witness the shotgun marriage of the coin of no realm and a daunting state licensing measure; to date, no vows have been taken.
The initial proposal from the Department of Financial Services was truly bold and far-reaching. Eschewing a classification of Bitcoin itself, the Department took aim at parties doing business with State residents by issuing, buying/selling, converting or storing the notorious cryptocurrency (and other, similar virtual currencies). Such entities and operators would have been required to register for the popularly dubbed "Bitlicense" at an indeterminate cost.
The requirements attending the proposed Bitlicense were rich and varied. Traditional State consumer protection provisions focused on customer complaints and record keeping. More novel provisions seemingly borrowed from securities law authorities on business continuity planning and anti-money laundering programs, and from sister State warnings regarding cryptocurrencies as investments. Consequentially, New York's broad, multi-layered protocol would have closed the door of entry to an appreciable number of businesses and startups, as well as related enterprises.
Not surprisingly, last Fall, there emerged on the Internet (albeit in piecemeal fashion) a consistent chorus of domestic, interstate, and international objections. That commentary, from parties including conversion sites and start-up companies, voiced concerns ranging from infringement of free speech to niche resentment at measures designed for financial intermediaries. Meanwhile, support for the initial proposal in the form of public comment letters was hard to locate. And, among federal authorities, only FinCEN has to date directly addressed the question of regulating the ersatz currency.
Still a Shotgun Marriage
Complicating matters is the continuing bad press attached to Bitcoin. Another round of mishaps at conversion exchanges in the past year highlighted issues ranging from questionable marketing to cybersecurity. Other States evidence both the carrot and the stick in the inevitable march towards rules governing the persistent cash alternative. California is considering a measure to coronate the online currency with legal status. Conversely, Missouri voiced its concerns via a June 2014 enforcement action that faulted a company for inadequate disclosures about virtual currencies in general. Concurrently, Congress is entertaining Bills that would shield Bitcoin exchangers from State regulation altogether. The one consistent truth is that supporters of the cryptocurrency seem to have established a daily Internet presence. Here, again, New York has seized the opportunity for regulatory arbitrage: In January, a spokesperson from DFS felt compelled to correct the statement by exchanger/storage repository Coinbase that it had been the first licensed Bitcoin exchange in a plethora of states including New York (no licenses have as yet been issued).
Interestingly, DFS Superintendant Lawsky himself has acknowledged that "The [proposed] rules also generally mirror the types of requirements that other banks, financial institutions, and money transmitters have to live by – with some alterations owing to the unique nature of virtual currencies." Yet the tension among interests appears to be growing, and New York officials no doubt find their efforts pausing to balance the State's heightened interest in protecting consumers (and extinguishing untrustworthy companies) while permitting industry creativity and innovation to flourish. Accordingly, the revised DFS regulation continues to grapple with the dual aims of a stringent standard and enough wiggle room to account for dynamic regulatory and entrepreneurial fields.
The Main Course
Thus, the revised legislation retains many of the original provisions, but it also attempts to appease more parties. For example, Bitlicensees are held to slightly less record-keeping and anti-money laundering protocols.
The price for the Bitlicense has been mercifully capped at $5,000. And the definitional section now makes equally clear that software development and "merchant" payment activities will often be exempt. But the grandest largess takes the form of a 2-year conditional license (granted at the "sole discretion" of the Superintendant), a variation expressly designed for "an applicant that does not satisfy all of the regulatory requirements upon licensing."
Additionally, third parties have benefitted from the revisions: The revised regulations clarify that certain software developers, "miners" (i.e., creators of Bitcoin), those offering customer loyalty programs, rewards (such as airline vouchers) and gift cards are not required to obtain a Bitlicense.
To be sure, the 2015 changes to the 2014 proposal exemplify a newfound DFS responsiveness to the concern of the crossroads of the technology and finance that is virtual currency. However, pure capitalists should note: Even in amended form, the proposal contains substantial costs attending requirements of cash reserves, quarterly reporting, the employ of cybersecurity employees, business continuity planning, transaction records and consumer disclosures. Further, some new obligations have been added – most notably, the requirement that the surety trust account for customers be maintained with a "qualified custodian" (i.e., a banking entity approved by the DFS). The next round of comments should reveal whether the Department's revised approach has achieved meaningful supervision of the industry without concurrently extinguishing some of the characteristics that make virtual currency attractive in the first place.
The revised regulations, which are available at http://www.dfs.ny.gov/legal/regulations/rev_bitlicense_reg_framework.htm, are presently subject to a 30-day comment period. The union of registration and innovation will likely not be decided until late 2015. By borrowing from expansive notions found in securities law and long arm statutes, the seminal State law with the decidedly federal twist will, of course, garner national attention. With objections to strict regulation ranging from Congress to IT developers, wedding guests from both sides of the aisle are still advised to hold onto their receipts.
Mandy Li Weiner, Hofstra University School of Law Class of 2017, is a Business Law Honors Concentration Fellow.
Professor J. Scott Colesanti, a former industry regulator and arbitrator, has taught Securities Regulation at Hofstra since 2002. His 2014 study of the potential application of the securities laws to Bitcoin exchanges is available on SSRN.
Sunday, February 22, 2015
ICYMI: "Round-Up of Recent Business Divorce Cases From Across the Country" http://t.co/B6sllwMAde— Stefan Padfield (@ProfPadfield) February 18, 2015
"LLCs dominate entity formation & cutting edge has moved..to..'series' a quasi-separate, quasi-person..within an LLC" http://t.co/sfDe490kic— Stefan Padfield (@ProfPadfield) February 19, 2015
Sunday, February 15, 2015
My final pre-publication draft of "Corporate Social Responsibility & Concession Theory," 6 Wm. & Mary Bus. L. Rev. 1 http://t.co/1m7Aeapdbz— Stefan Padfield (@ProfPadfield) February 15, 2015
"The growth of social impact has led to a proliferation of reporting methods" http://t.co/s6MQLCZxq4— Sustainable Business (@GuardianSustBiz) February 12, 2015
Sunday, February 8, 2015
Two SEC commissioners attack SEC for turning a "blind eye" to Oppenheimer's "wholly failed" compliance culture (2/2) http://t.co/BzAdJvGWpA— Jean Eaglesham (@jeaneaglesham) February 4, 2015
Sunday, February 1, 2015
I've created a public list of business law professors at US law schools that I follow: https://t.co/9Lu23dl1iO— Stephen Bainbridge (@ProfBainbridge) January 27, 2015
News release: SEC to hold roundtable on proxy voting on February 19. http://t.co/QnHLML4HzW— SEC_News (@SEC_News) January 27, 2015
"Alex Tabarrok on Private Cities | EconTalk | Library of Economics and Liberty" http://t.co/nmP6FrOBRY— Stefan Padfield (@ProfPadfield) January 28, 2015
"Court held that the parties’ choice of Delaware law to govern the terms of a noncompete agreement was unenforceable" http://t.co/Y3Z6dWnCbL— Stefan Padfield (@ProfPadfield) January 30, 2015
Sunday, January 25, 2015
"The aim of the precautionary principle...is to prevent decision makers from putting society as a whole...at risk" http://t.co/jcscjY5JIb— Stefan Padfield (@ProfPadfield) January 25, 2015
Henry G. Manne, RIP, David Henderson | EconLog | Library of Economics and Liberty http://t.co/27sLpCxsaA— Carlo Stagnaro (@CarloStagnaro) January 18, 2015
"split 'corporate America' into 'main street businesses' and 'crony capitalist big business'" http://t.co/meDNiw1F1t— Stefan Padfield (@ProfPadfield) January 20, 2015
ICYMI: Updated link: "Proxy Access Punt: Top 5 Things People Are Asking" http://t.co/LtmJTMfpCz— Stefan Padfield (@ProfPadfield) January 25, 2015
Sunday, January 18, 2015
ICYMI: "Piketty Shreds Marginal Productivity as Neoclassical Justification for Supersized Pay" http://t.co/H99ZIYfng8— Stefan Padfield (@ProfPadfield) January 11, 2015
“Directors were not aware of the problems ... the audit revealed b/c they aren’t involved in day-to-day operations.” https://t.co/ppmHWhCdun— Stefan Padfield (@ProfPadfield) January 12, 2015
Risk factors, non-GAAP financials & trend analysis expected to attract SEC scrutiny during filing season http://t.co/z97f5gdmmk— FEI Daily (@dailyfei) January 15, 2015