Sunday, April 20, 2014

ICYMI: Tweets from the past week (140420)

April 20, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, April 6, 2014

Cooke on “10 Surprises for a US Bidder on a UK Takeover.”

Over at the Harvard LSFOCGAFR, Stephen Cooke, partner and head of the Mergers and Acquisitions practice at Slaughter and May, has posted a fascinating review of “10 Surprises for a US Bidder on a UK Takeover.”  It’s a bit long for a blog post (16 printed pages on my end), but well worth the time if you have any interest at all in the subject matter.  What follows is a very brief excerpt, which is really just a teaser in light of the excellent depth of treatment the post provides.  Given my latest project, "Corporate Social Responsibility & Concession Theory," I find # 7 to be of particular interest.

Takeovers in the UK are in broad terms decided by the Target’s shareholders, with the Target Board rarely having decisive influence …. Unlike in the US, the Target Board is not the gatekeeper for offers. A Bidder may take its offer direct to shareholders and the Board has no power to block or delay an offer …. The Takeover Code (the “Code”) reflects this environment and, although changes were made post-Cadbury to reflect the interests of non-shareholder stakeholders, it remains a body of rules embodying the pre-eminence of shareholders….

1…. [I]n the UK: a potential Bidder may be publicly “outed” before it is ready to announce its offer; once outed, a potential Bidder is required to either announce a firm offer or withdraw (“put up or shut up”) within a specified period; and once a firm offer is made, there is a time limit within which the offer must succeed or fail….

2…. In the UK … you cannot combine … transaction structures and must either obtain 90% acceptances or proceed by way of the UK nearest equivalent to a merger…. There is no concept of statutory merger in the UK…. Therefore, any acquisition of a UK public company takes place through the acquisition of shares in the Target by the Bidder. This is effected either by a tender offer (referred to in the UK simply as “an offer”) or by the nearest UK analogue of a US-style merger, a “scheme of arrangement”.

3…. [I]n the UK … rules on equality of information require that any information or access to management provided by a Target to one Bidder or potential Bidder is made available on request to any other Bidder or bona fide potential Bidder, whether or not welcome….

4…. In … 2011, the Panel introduced a general prohibition on break fees (along with various other deal protection measures) in UK takeovers as part of its response to the demands from some quarters (following the Kraft/Cadbury takeover) that the balance of negotiation power be shifted away from Bidders and in favour of Targets….

6…. In the UK … financing conditions [are] prohibited (except in very limited circumstances) ….

7…. In the UK … a Bidder is required to disclose its intentions as regards the future of the Target’s business and the impact its bid may have on the Target’s employees in its offer document. In addition, the Bidder must make equivalent disclosures in respect of its own future business, employees and places of business where these are affected by the offer…. [T]he Panel has signalled a tougher approach to enforcement in this area and has stated that it expects to investigate complaints from any interested person, which would include trade unions, employee representatives and political representatives. It is also worth noting that breaches of this section of the Code can attract criminal liability as well as the more usual range of Panel disciplinary measures….

April 6, 2014 in Corporate Governance, Merger & Acquisitions, Stefan J. Padfield | Permalink | Comments (0)

Sunday, March 30, 2014

How would former Chief Justice Rehnquist have ruled on Hobby Lobby?

In my article, “The Silent Role of Corporate Theory in the Supreme Court’s Campaign Finance Cases,” 15 U. Pa. J. Const. L. 831, I criticized the Supreme Court justices for failing to acknowledge the role of competing conceptualizations of the corporation in their corporate political speech cases.  I noted, however, that former Chief Justice Rehnquist was arguably the lone modern justice to deserve at least some praise in this area.

Justice Rehnquist's stand-alone dissent in Bellotti provides arguably the sole example in these opinions of a Justice affirmatively adopting a theory of the corporation for purposes of determining the constitutional rights of corporations--though not via the express adoption of one of the traditionally recognized theories. Specifically, Justice Rehnquist relied on Justice Marshall's Dartmouth College opinion to conclude that: “Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons . . . our inquiry must seek to determine which constitutional protections are ‘incidental to its very existence.”’ Thus, while it may be true that “a corporation's right of commercial speech . . . might be considered necessarily incidental to the business of a commercial corporation[, i]t cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes.” I would argue that this is a formulation most aligned with concession theory because not only does Justice Rehnquist rely on Dartmouth College, but he also goes on to say: “I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation.”  Stefan J. Padfield, The Silent Role of Corporate Theory in the Supreme Court's Campaign Finance Cases, 15 U. Pa. J. Const. L. 831, 853 (2013) (quoting First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765 (1978)).

While this is only one data point, I think it suggests the former Chief Justice would have been hesitant to grant corporations any form of free exercise rights, since it is difficult to see how free exercise rights are more incidental to a corporation’s existence than political speech rights.  Cf. Kent Greenawalt, Religion and the Rehnquist Court, 99 Nw. U. L. Rev. 145, 146 (2004) (“With limited qualifications, the Rehnquist Court has abandoned the possibility of constitutionally-required free exercise exemptions.”).

For more on concession theory, I shamelessly suggest my more recent article, “Rehabilitating Concession Theory,” 66 Okla. L. Rev. 327 (2014) (“the reports of concession theory's demise have been greatly exaggerated”).  And if you find that of interest, you can check out my latest SSRN posting, “Corporate Social Responsibility & Concession Theory.”

March 30, 2014 in Business Associations, Constitutional Law, Corporate Governance, Corporations, Current Affairs, Religion, Stefan J. Padfield | Permalink | Comments (0)

Sunday, March 23, 2014

The Weekly BLT for March 23, 2014

I'm trying out a new weekly blog post theme, "The Weekly BLT," wherein I highlight a few interesting business law tweets that I've come across in the past week that have not yet made it to the BLPB.

 

 

March 23, 2014 in Business Associations, Constitutional Law, Corporate Governance, Corporations, Financial Markets, LLCs, Stefan J. Padfield | Permalink | Comments (0)

Tuesday, March 18, 2014

Welcome Guest Blogger Tamara Belinfanti & New Co-Editor Ann Lipton

We here at the BLPB feel very lucky and excited to be able to follow up on Ann Lipton’s month of guest-blogging with a month of guest-blogging by Tamara Belinfanti and, furthermore, that Ann has agreed to come on board to blog with us on a regular basis going forward.  We have no doubt that our readers will benefit greatly from all of this.

If you want to re-visit my original introductory post for Prof. Lipton, you can find it here. As for Prof. Belinfanti, I will as usual leave the bulk of the introduction to her but pass on the following from her New York Law School profile page, which you can find here.  Welcome, Tamara & Ann!

Professor Belinfanti joined the faculty in fall 2009 and teaches Corporations, Contracts, and a corporate transactional skills seminar. Professor Belinfanti’s scholarly interests include general corporate governance matters, executive compensation, the proxy advisory industry, shareholder activism, and law, culture and identity. Prior to joining academia, Professor Belinfanti was a corporate attorney at Cleary Gottlieb Steen & Hamilton LLP, where she counseled domestic and international clients on general corporate and U.S. securities regulation matters, and was co-editor of the securities law treatise, U.S. Regulation of the International Securities and Derivatives Market (Aspen, 2003). Professor Belinfanti received her Juris Doctor, cum laude, from Harvard Law School in 2000.

March 18, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, March 16, 2014

Texas Tech to host conference on "the most important current development in corporate litigation."

The "Conference on Multi-Jurisdictional Deal Litigation" will be held April 25, 2014.  Here is a brief introduction:

M&A litigation is increasingly filed in both the target’s state of incorporation and its headquarters state. It is the most important current development in corporate litigation. The leading plaintiffs’ and defendants’ deal litigators from Delaware and from Texas will discuss every aspect of this issue at our day-long conference. Chief Justice Strine of the Delaware Supreme Court and Justice Brown of the Texas Supreme Court will be panelists.

March 16, 2014 in Conferences, Corporations, Current Affairs, Merger & Acquisitions, Stefan J. Padfield | Permalink | Comments (0)

Sunday, March 9, 2014

“Corporate Social Responsibility & Concession Theory”

I have posted the first rough draft of my latest project, “Corporate Social Responsibility & Concession Theory,” on SSRN.  Here is the abstract:

This Essay examines three related propositions: (1) Voluntary corporate social responsibility (CSR) fails to effectively advance the agenda of a meaningful segment of CSR proponents; (2) None of the three dominant corporate governance theories – director primacy, shareholder primacy, or team production theory – support mandatory CSR as a normative matter; and, (3) Corporate personality theory, specifically concession theory, can be a meaningful source of leverage in advancing mandatory CSR in the face of opposition from the three primary corporate governance theories. In examining these propositions, this Essay makes the additional claims that Citizens United: (A) supports the proposition that corporate personality theory matters; (B) undermines one of the key supports of the shareholder wealth maximization norm; and (C) highlights the political nature of this debate.

March 9, 2014 in Business Associations, Constitutional Law, Corporate Governance, Corporations, Stefan J. Padfield | Permalink | Comments (0)

Sunday, March 2, 2014

Work-Life Balance: Don't Be a Jerk

A while back @FrankPasquale tweeted a link to a blog post by Eric Schwitzgebel that begins with the lines, "A central question of moral epistemology is, or should be: Am I a jerk? Until you figure that one out, you probably ought to be cautious in morally assessing others."

This post has kept popping into my mind since then, and so I thought I'd pass it on to BLPB readers.  Personally, I believe part of living a healthy, balanced life includes trying to minimize the extent to which I am a jerk, and I have found the remainder of Schwitzgebel's post to be helpful in advancing that goal.  Here's a bit more (but you should really go read the whole thing):

But how to know if you're a jerk? It's not obvious. Some jerks seem aware of their jerkitude, but most seem to lack self-knowledge. So can you rule out the possibility that you're one of those self-ignorant jerks? Maybe a general theory of jerks will help!

I'm inclined to think of the jerk as someone who fails to appropriately respect the individual perspectives of the people around him, treating them as tools or objects to be manipulated, or idiots to be dealt with, rather than as moral and epistemic peers with a variety of potentially valuable perspectives. The characteristic phenomenology of the jerk is "I'm important, and I'm surrounded by idiots!" However, the jerk needn't explicitly think that way, as long as his behavior and reactions fit the mold. Also, the jerk might regard other high-status people as important and regard people with manifestly superior knowledge as non-idiots.

To the jerk, the line of people in the post office is a mass of unimportant fools; it's a felt injustice that he must wait while they bumble around with their requests. To the jerk, the flight attendant is not an individual doing her best in a difficult job, but the most available face of the corporation he berates for trying to force him to hang up his phone. To the jerk, the people waiting to board the train are not a latticework of equals with interesting lives and valuable projects but rather stupid schmoes to be nudged and edged out and cut off. Students and employees are lazy complainers. Low-level staff are people who failed to achieve meaningful careers through their own incompetence who ought to take the scut work and clean up the messes. (If he is in a low-level position, it's a just a rung on the way up or a result of crimes against him.)

Inconveniencing others tends not to register in the jerk's mind....

 

March 2, 2014 in Ethics, Stefan J. Padfield | Permalink | Comments (0)

Sunday, February 23, 2014

The Separation of Church and For-Profit Corporations

My co-blogger Haskell Murray recently posted “Religion, Corporate Social Responsibility, and Hobby Lobby” and asked me to respond, which I am happy to do. I will admit that I am still developing my thoughts on the issues raised by Haskell’s post, so what follows is a bit jumbled but still gives a sense of why I currently oppose for-profit corporations being permitted to evade regulation by pleading religious freedom (if you have not read Haskell’s post, please do so before proceeding):

1. Corporate power threatens democracy. Corporations and other limited liability entities have been controversial since their creation because, among other things, the combination of limited liability, immortality, asset partitioning, etc., makes them incredible wealth and power accumulation devices. Of course, on the one hand, this is precisely why we have them – so that investors are willing to contribute capital they would never contribute if they risked being personally liable as partners, and thus unique economic growth is spurred, a rising tide then lifts all ships, and so on. On the other hand, because of their unique ability to consolidate power, corporations are aptly considered by many to be one of Madison’s feared factions that threaten to undermine the very democracy that supports their creation and growth:

Besides the danger of a direct mixture of religion and civil government, there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The establishment of the chaplainship in Congress is a palpable violation of equal rights as well as of Constitutional principles. The danger of silent accumulations and encroachments by ecclesiastical bodies has not sufficiently engaged attention in the U.S.

[More after the break.]

Continue reading

February 23, 2014 in Business Associations, Constitutional Law, Corporate Governance, Corporations, Current Affairs, Financial Markets, Food and Drink, Haskell Murray, Religion, Social Enterprise, Stefan J. Padfield | Permalink | Comments (3)

Thursday, February 20, 2014

Facebook, LinkedIn, and Twitter- Who needs them?

Our BLPB group has had a number of email discussions recently about the use of social media including blogs, Facebook, LinkedIn and Twitter for professional purposes. My home institution has discussed the same topic and even held a “training” session on technology in and outside of the classroom.  Because I am a heavy user, I volunteered to blog about how I use social media as a lawyer and academic in the hopes of spurring discussion or at least encouraging others to take a dip in the vast pool of social media.

Although I have been on Facebook for years, I don’t use that professionally at all. I also don’t allow my students to friend me, although I do know a number of professors who do. I often see lawyer friends discussing their clients or cases in a way that borders on violations of the rules of professional conduct, and I made sure to discuss those pitfalls when I was teaching PR last year.

I have also used LinkedIn for several years, mainly for professional purposes to see what others in my profession (at the time compliance and privacy work) were thinking about.  I still belong to a number of LinkedIn groups and have found that academics from other countries tend to use LinkedIn more than US professors. I have received a number of invitations to collaborate on research just from posts on LinkedIn. I also encourage all of my law students to join LinkedIn not only for networking purposes, but also so that they can attract recruiters, who now use LinkedIn almost as often as they use headhunters.  When I blog, I link my posts to LinkedIn, which in turn automatically posts to Twitter.

I admit that I did not like Twitter at first. I now have three Twitter accounts- follow me at @mlnarine.  I started using Twitter when I was a deputy general counsel and compliance officer and I followed law firms and every government agency that was online that regulated my industry. The government agencies were very early to the Twitter game and I once learned about a delay in the rollout of a regulation via Twitter a full week before my outside counsel who was working on the project informed me.

I also use the hashtag system (#) to see what others are saying on topics that hold my interest such as #csr (corporate social responsibility and unfortunately also customer service rep), #socent for social enterprise, #corpgov for corporate governance, and #Dodd-Frank  and #climatechange (self explanatory). 

I make an effort to tweet daily and am now an expert in trying to say something useful in 140 characters or less (being on yearbook staff in high school and counting characters for headlines made this a breeze for me). I re-tweet other tweets that I believe may be of interest to my followers or links to articles, and often gain new followers based on what I have chosen to tweet, largely because of my use of hashtags. In fact, after a marathon tweeting session following the Dodd-Frank conflict minerals oral argument before the DC Circuit Court of Appeals, I received four calls from the press for interviews, a nice, unexpected benefit of trying to educate my followers.  Often when I attend conferences, such as last week’s ABA meeting or the UN’s Business and Human Rights Forum, the organizers develop a hashtag so that those who cannot attend in person can follow the proceedings through tweets and the attachments to those tweets.

The best part of twitter is that I met fellow blogger, Haskell Murray because of one his tweets and that led to an invitation to speak at a conference.  Haskell has published a useful  list of business law professors on Twitter so if you’re not on his list, let us know and we will update it.

Next week I will post about the benefits or perils of blogging, especially for someone new to academia.    

February 20, 2014 in Business Associations, Anne Tucker, Conferences, Corporate Governance, Corporations, Current Affairs, Entrepreneurship, Ethics, Haskell Murray, Marcia L. Narine, Social Enterprise, Stefan J. Padfield, Teaching, Web/Tech | Permalink | Comments (0)

Sunday, February 16, 2014

Belinfanti on “Shareholder Cultivation and New Governance”

Tamara Belinfanti recently posted “Shareholder Cultivation and New Governance” on SSRN.  Here is the abstract:

Several formal proposals have been made to address shareholder short-termism and speculative behavior. These include the imposition of a financial transaction tax, changes to the U.S. capital gains tax rate, and the adoption of an Investor Stewardship Code in the United Kingdom. This Article reverses the focus from looking to top-down solutions to looking at bottom-up grass root solutions that corporations can employ, and in some cases do already employ to achieve substantially the same effect of rewarding certain types of shareholder behavior while dissuading others — a process I refer to as “Shareholder Cultivation.” While many of the techniques and strategies discussed in this Article are not new and in fact many have been used by companies and investor relation professionals for years, the Article is the first to conceptualize a prescriptive framework for assessing which techniques and strategies should be allowed. Additionally, the Article utilizes new governance theory to examine the concept of Shareholder Cultivation with a fresh lens: as a corporate governance benefit.

February 16, 2014 in Business Associations, Corporate Governance, Corporations, Stefan J. Padfield | Permalink | Comments (0)

Friday, February 14, 2014

Welcome Guest Blogger Ann Lipton

I typically leave introductions to the bloggers themselves, but let me just say that we here at the BLPB are very much looking forward to having Ann Lipton guest blog with us for the next four weeks.  Professor Lipton is currently at Duke Law, and her primary focus is on federal securities regulation and complex civil litigation.  You can find her full profile here.  Welcome, Ann!

February 14, 2014 in Stefan J. Padfield | Permalink | Comments (0)

Sunday, February 9, 2014

Virginia Harper Ho on “Enterprise Principles & Corporate Groups: Does Corporate Law Reach Human Rights?”

I just received notice that Virginia Harper Ho’s article “Of Enterprise Principles & Corporate Groups: Does Corporate Law Reach Human Rights?” has been published in 52 Colum. J. Transnat'l L. 113.  Here is the abstract:

In recent years, a number of international and cross-sectoral initiatives have attempted to respond to the human rights impacts of corporations. Foremost among these is the United Nations' 2008 “Protect, Respect, and Remedy” Framework and its Guiding Principles on Business and Human Rights, adopted in March, 2011. The Framework is noteworthy, in part, because it considers the potential intersections of corporate law and human rights. Conventional wisdom, however, maintains that corporate law is largely irrelevant to questions of human rights. It is generally viewed to be enabling, rather than prescriptive, and concerned with private contracting rather than the public interest. From a practical standpoint, human rights impacts often involve conduct by remote affiliates and business partners of vast multinational corporate organizations. Corporate law, in contrast, governs the “internal affairs” of discrete legal entities within a given jurisdiction, each protected by a limited liability shield. Questions of global corporate accountability for human rights practices have therefore been viewed as beyond its reach.

This Article challenges this accepted wisdom by exploring the extent to which corporate law reaches the multinational enterprise. It argues that, notwithstanding the centrality of entity-level principles within corporate law, some dimensions of corporate law in fact extend across the formal internal legal boundaries of the multinational corporation. Although corporate law enforcement mechanisms do not offer direct remedies for victims of human rights violations, corporate law is nonetheless an integral part of the emerging institutional infrastructure supporting the human rights responsibilities of corporations.

February 9, 2014 in Business Associations, Corporations, Stefan J. Padfield | Permalink | Comments (0)

Saturday, February 8, 2014

Interested in Guest-Blogging?

If you are a business law professor (or reasonable facsimile thereof) and would like to guest-blog with us here at the Business Law Prof Blog, please drop me a line at [email protected]

February 8, 2014 in Stefan J. Padfield, Weblogs | Permalink | Comments (0)

Sunday, February 2, 2014

Gedicks & Van Tassell on “RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion"

Frederick Mark Gedicks & Rebecca G. Van Tassell recently posted “RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion” on SSRN (HT: Robert Esposito).  Here is excerpt of the abstract:

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked the Establishment Clause limits on such exemptions.

The heated religious-liberty rhetoric aimed at the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — a government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose material burdens on third parties who do not believe or participate in the accommodated practice.

While it is likely that RFRA facially complies with the Establishment Clause, it violates the Clause’s limits on permissive accommodation as applied to the mandate. RFRA exemptions from the mandate would deny the employees of an exempted employer their ACA entitlement to contraceptives without cost-sharing, forcing employees to purchase with their own money contraceptives and related services that would otherwise be available to them at no cost beyond their share of the healthcare insurance premium.

Neither courts nor commentators seem aware that a line of permissive accommodation decisions prohibits shifting of material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not. Many of the Court's decisions under the Free Exercise Clause and Title VII also exhibit this concern with cost-shifting accommodations. Yet, one federal appellate court has already mistakenly dismissed this cost-shifting as irrelevant to the permissibility of RFRA exemptions from the mandate.

The impermissibility of cost-shifting under the Establishment Clause is a threshold doctrine whose application is logically prior to all of the RFRA issues on which the courts are now focused: If RFRA exemptions from the mandate violate the Establishment Clause, then that is the end of RFRA exemptions, regardless of whether for-profit corporations are persons exercising religion, the mandate is a substantial burden on employers’ anti- contraception beliefs, or the mandate is not the least restrictive means of protecting a compelling government interest.

February 2, 2014 in Business Associations, Constitutional Law, Corporate Governance, Corporations, Current Affairs, Stefan J. Padfield | Permalink | Comments (0)

Saturday, February 1, 2014

“To be, or not to be,” is an important question, but so is, “What to be?”

A lot of chatter this week surrounding the submission of an amicus brief filed in the Hobby Lobby case by corporate and criminal law professors in support of petitioners.  In particular, Stephen Bainbridge has written a series of posts critical of the brief:

 

 

I was one of the 44 law professors that signed on to the amicus brief, and I also have a tremendous amount of respect for Prof. Bainbridge, so I’ve been very interested in what he’s had to say.  However, I’m also currently trying to advance my latest writing project (relatedly, on the intersection of corporate governance theories, theories of corporate personality, and corporate social responsibility) to some semblance of completeness that I can submit to journals with a straight face in the next few weeks.  Thus, I am going to pass on addressing Bainbridge’s critiques for now – except for briefly responding to his claim that there is some inconsistency between arguing that the Supreme Court should respect corporate personhood in Hobby Lobby (the brief states: “this legal separateness—sometimes called legal ‘personhood’—has been the very basis of corporate law at least since the 18th Century”) while at the same time bemoaning the application of that corporate personhood in Citizens United (while I won’t speak for my co-signers, I think it is fair to assume many are critics of Citizens United and I personally have expressed my disagreement with the opinion in various places, including here).

By way of background, the three primary theories of corporate personality are aggregate theory, real entity theory, and concession theory (AKA artificial entity theory).  At the risk of over-simplifying, aggregate theory and real entity theory essentially presume corporations stand in the shoes of natural persons (e.g., shareholders in the former case, and the board of directors in the latter), and thus have available to them all the rights of natural persons in resisting government regulation.  Concession theory, on the other hand, views the corporation as fundamentally a state creation, and presumes the state has the right to regulate its creation as it sees fit.  Importantly, concession theory does not preclude granting particular rights of natural persons to corporate entities, and it certainly doesn’t preclude doing so by including “corporation” in the definition of “person” for purposes of a particular rule, regulation, or statute.  It just doesn’t presume that all the rights of natural persons are automatically transferred to corporations upon their creation.

I focus on presumptions, and the concomitant allocation of burdens of proof, because I believe these issues were critical in Citizens United.  The majority presumed that corporations were entitled to the same political free speech rights as natural persons, and placed the burden of proving that this right was subject to limitation on the basis of corporate status alone on the state.  Meanwhile, the dissent argued that the burden was on those claiming free political speech rights for corporations and presumed the legislative determinations regarding the corrupting influence of corporate spending on politics were sufficient to uphold the relevant regulation.  Accordingly, while many commentators disagree as to whether aggregate or real entity theory animated the Citizens United majority, most of those to have considered the issue agree it was one of two (I believe the key line in the opinion is: “[T]he Government cannot restrict political speech based on the speaker's corporate identity.”).  On the other hand, I believe most – though certainly not all -- of the commentators that have considered the issue appear to agree that concession theory animated the dissent’s position (despite the dissent’s express protestations to the contrary). 

Thus, I believe the better characterization of the relevant issue is not whether corporations are persons (we can all likely agree that corporations are entitled to personhood rights at the very least for a variety of relatively non-controversial purposes), but rather which rights of personhood corporations should be entitled to.  In Hobby Lobby, the issue is not whether corporations should ever be deemed persons under the law, but rather whether corporations should be deemed legal persons that are entitled to rights of religious freedom identical to natural persons and, if so, in what situations and to what extent.  I see no inconsistency in arguing that corporate personhood should not include religious freedom rights co-extensive with natural persons while at the same time arguing that corporate personhood should also not include political free speech rights co-extensive with natural persons.

February 1, 2014 in Business Associations, Constitutional Law, Corporations, Current Affairs, Stefan J. Padfield | Permalink | Comments (0)

Sunday, January 26, 2014

Bullard on the SEC's Crowdfunding Proposal: Will it Work for Small Businesses?

Go here for the January 16, 2014 testimony of Mercer E. Bullard before the Committee on Small Business, United States House of Representatives, on the SEC's Crowdfunding Proposal.  Here is a brief excerpt (comment deadline is February 3):

The overriding issue for crowdfunding is likely to be how the narrative of investors frequently losing their entire investment plays out. If investors are perceived as losing only a small part of their portfolios because of business failures rather than fraud, or if their crowdfunding losses are set off by gains in other investments through diversification, the crowdfunding market could weather large losses and thrive. However, if fraudsters are easily able to scam investors under the cover of a crowdfunding offering, or stale financial statements routinely turn out to have hidden more recent, undisclosed financial declines, or there are investors who can’t afford the losses they incur, resulting in stories of personal financial distress – then crowdfunding markets will never become a credible tool for raising capital.

January 26, 2014 in Current Affairs, Entrepreneurship, Financial Markets, Securities Regulation, Stefan J. Padfield | Permalink | Comments (0)

Saturday, January 25, 2014

Pearce & Hopkins on “Regulation of L3Cs for Social Entrepreneurship: A Prerequisite to Increased Utilization”

John A. Pearce II & Jamie Patrick Hopkins have posted “Regulation of L3Cs for Social Entrepreneurship: A Prerequisite to Increased Utilization” on SSRN.  Here is the abstract:

One new business model is the low-profit, limited liability company (L3C). The L3C was first introduced in Vermont in 2008 and has since been adopted by several other states. The L3C is designed to serve the for-profit and nonprofit needs of social enterprise within one organization. As such, it has been referred to as a "[f]or-profit with [a] nonprofit soul."

In an effort to efficiently introduce the L3C business model, states have designed L3C laws under existing LLC regulations. The flexibility provided by LLC laws allows an L3C to claim a primary social mission and avail itself of unique financing tools such as tranche investing. Specifically, the L3C statutes are devised to attract the program related investments (PRIs) of charitable foundations. Despite these successes, adoption of the L3C form has been slower than proponents expected.

A similar business initiative has found great success in the United Kingdom (U.K.), where numerous proponents supported legislation designed to create hybrid business models that would promote social entrepreneurship. As a result, the U.K. created the Community Interest Company (CIC) in 2006, allowing more than 4,500 companies to register as CICs that offer a double bottom line (or dual benefit) to investors.

While CICs and L3Cs were created with the same double bottom line in mind, CICs face strict government regulations that provide investors with additional protections. These regulations have indirectly contributed to the success of many CICs by increasing investor confidence in the success of these businesses. In the United States, the flexibility of LLC statutes may provide L3Cs with unique funding options, but the lack of government regulation leaves investor outcomes uncertain and inhibits L3Cs from being a better-utilized business model for social entrepreneurship.

January 25, 2014 in Business Associations, Corporate Governance, Financial Markets, LLCs, Social Enterprise, Stefan J. Padfield, Unincorporated Entities | Permalink | Comments (0)

Sunday, January 19, 2014

Nagy on Owning Stock While Making Law

Donna M. Nagy recently posted “Owning Stock While Making Law: An Agency Problem and A Fiduciary Solution” on SSRN.  Here is the abstract:

This Article focuses on Members of Congress and their widespread practice of holding personal investments in companies that are directly and substantially affected by legislative action. Whether entirely accurate or not, congressional officials with investment portfolios chock full of corporate stocks and bonds contribute to a corrosive belief that lawmakers can – and sometimes do – place their personal financial interests ahead of the public they serve.

Fiduciary principles provide a practical solution to this classic agency problem. The Article first explores the loyalty-based rules that guard against self-interested decision-making by directors of corporations and by government officials in the executive and judicial branches of the federal government. It then contrasts the strict anti-conflict restraints in state corporate law and federal conflicts-of-interest statutes with the very different set of ethical rules and norms that Congress traditionally has applied to the financial investments held by its own members and employees. It also confronts the parochial view that lawmakers’ conflicts are best deterred through public disclosure of personal investments and the discipline of the electoral process. The Article concludes with a proposal for new limitations on the securities that lawmakers may hold during their congressional service. Specifically, and as a starting place, Congress should prohibit its members (and their staffs) from holding securities in companies substantially affected by the work of any congressional committee on which they hold membership. But Congress should also explore the adoption of even stricter anti-conflict restraints, such as a statute or rule that would, subject to some narrow exceptions, prohibit members and senior staff officials from owning any securities other than government securities or shares in diversified mutual funds.

January 19, 2014 in Agency, Securities Regulation, Stefan J. Padfield | Permalink | Comments (0)

Saturday, January 18, 2014

Huhn on the Implications of Daimler AG for Hobby Lobby

My Akron colleague Will Huhn just posted “2013-2014 Supreme Court Term: Court's Decision in Daimler AG v. Bauman, No. 11-965: Implications for the Birth Control Mandate Cases?” over at his blog wilsonhuhn.com.  Here is a brief excerpt, but you should go read the entire post:

On January 14, 2014, the Supreme Court issued its decision in favor of Daimler AG (the maker of Mercedes-Benz), ruling that the federal courts in California lacked personal jurisdiction over Daimler to adjudicate claims for human rights violations arising in Argentina. The ruling of the Court may have implications for the birth control mandate cases pending before the Court in Hobby Lobby Stores and Conestoga Wood Specialties…. In those cases the owners of two private, for-profit business corporations contend that their individual rights to freedom of religion "pass through" to the corporation -- that the corporations are in effect the "agents" of the principal shareholders, and that this is why the corporations have the right to deny their employees health insurance coverage for birth control. In Daimler the Ninth Circuit Court of Appeals had held that MBUSA was the "agent" of Daimler AG, and that the substantial business presence of MBUSA in California could be imputed to Daimler AG. The Supreme Court was not persuaded by this agency analysis…. It would be anomalous for the Court to adhere to corporate identity for purposes of personal jurisdiction and liability for tort, and yet to ignore corporate identity to give effect to the personal religious choices of stockholders.

January 18, 2014 in Business Associations, Agency, Constitutional Law, Corporate Governance, Corporations, Current Affairs, Religion, Stefan J. Padfield | Permalink | Comments (0)