Friday, August 14, 2020
As an academic and consultant on environmental, social, and governance (ESG) matters, I’ve used a lot of loaded terms -- greenwashing, where companies tout an environmentally friendly record but act otherwise; pinkwashing, where companies commoditize breast cancer awareness or LGBTQ issues; and bluewashing, where companies rally around UN corporate social responsibility initiatives such as the UN Global Compact.
In light of recent events, I’ve added a new term to my arsenal—wokewashing. Wokewashing occurs when a company attempts to show solidarity with certain causes in order to gain public favor. Wokewashing isn’t a new term. It’s been around for years, but it gained more mainstream traction last year when Unilever’s CEO warned that companies were eroding public trust and industry credibility, stating:
Woke-washing is beginning to infect our industry. It’s polluting purpose. It’s putting in peril the very thing which offers us the opportunity to help tackle many of the world’s issues. What’s more, it threatens to further destroy trust in our industry, when it’s already in short supply… There are too many examples of brands undermining purposeful marketing by launching campaigns which aren’t backing up what their brand says with what their brand does. Purpose-led brand communications is not just a matter of ‘make them cry, make them buy’. It’s about action in the world.
The Black Lives Matter and anti-racism movements have brought wokewashing front and center again. My colleague Stefan Padfield has written about the need for heightened scrutiny of politicized decisions and corporate responses to the BLM movement here, here, and here, and Ann Lipton has added to the discussion here. How does a board decide what to do when faced with pressure from stakeholders? How much is too much and how little is too little?
The students in my summer Regulatory Compliance, Corporate Governance, and Sustainability course were torn when they acted as board members deciding whether to make a public statement on Black Lives Matter and the murder of George Floyd. As fiduciaries of a consumer goods company, the “board members” felt that they had to say “something,” but in the days before class they had seen the explosion of current and former employees exposing companies with strong social justice messaging by pointing to hypocrisy in their treatment of employees and stakeholders. They had witnessed the controversy over changing the name of the Redskins based on pressure from FedEx and other sponsors (and not the Native Americans and others who had asked for the change for years). They had heard about the name change of popular syrup, Aunt Jemima. I intentionally didn’t force my students to draft a statement. They merely had to decide whether to speak at all, and this was difficult when looking at the external realities. Most of the students voted to make some sort of statement even as every day on social media, another “woke” company had to defend itself in the court of public opinion. Others, like Nike, have received praise for taking a strong stand in the face of public pressure long before it was cool and profitable to be “woke.”
Now it’s time for companies to defend themselves in actual court (assuming plaintiffs can get past various procedural hurdles). Notwithstanding Facebook and Oracle’s Delaware forum selection bylaws, the same lawyers who filed the shareholder derivative action against Google after its extraordinary sexual harassment settlement have filed shareholder derivative suits in California against Facebook, Oracle, and Qualcomm. Among other things, these suits generally allege breach of the Caremark duty, false statements in proxy materials purporting to have a commitment to diversity, breach of fiduciary duty relating to a diverse slate of candidates for board positions, and unjust enrichment. Plaintiffs have labeled these cases civil rights suits, targeting Facebook for allowing hate speech and discriminatory advertising, Qualcomm for underpaying women and minorities by $400 million, and Oracle for having no Black board members or executives. Oracle also faces a separate class action lawsuit based on unequal pay and gender.
Why these companies? According to the complaints, “[i]f Oracle simply disclosed that it does not want any Black individuals on its Board, it would be racist but honest…” and “[a]t Facebook, apparently Zuckerberg wants Blacks to be seen but not heard.” Counsel Bottini explained, “when you actually go back and look at these proxy statements and what they’ve filed with the SEC, they’re actually lying to shareholders.”
I’m not going to discuss the merits of these cases. Instead, for great analysis, please see here written by attorneys at my old law firm Cleary Gottlieb. I’ll do some actual legal analysis during my CLE presentation at the University of Tennessee Transactions conference on October 16th.
Instead, I’m going to make this a little more personal. I’m used to being the only Black person and definitely the only Black woman in the room. It’s happened in school, at work, on academic panels, and in organizations. When I testified before Congress on a provision of Dodd-Frank, a Black Congressman who grilled me mercilessly during my testimony came up to me afterwards to tell me how rare it was to see a Black woman testify about anything, much less corporate issues. He expressed his pride. For these reasons, as a Black woman in the corporate world, I’m conflicted about these lawsuits. Do corporations need to do more? Absolutely. Is litigation the right mechanism? I don’t know.
What will actually change? Whether or not these cases ever get past motions to dismiss, the defendant companies are likely to take some action. They will add the obligatory Black board members and executives. They will donate to various “woke” causes. They will hire diversity consultants. Indeed, many of my colleagues who have done diversity, equity, and inclusion work for years are busier than they have ever been with speaking gigs and training engagements. But what will actually change in the long term for Black employees, consumers, suppliers, and communities?
When a person is hired or appointed as the “token,” especially after a lawsuit, colleagues often believe that the person is under or unqualified. The new hire or appointee starts under a cloud of suspicion and sometimes resentment. Many eventually resign or get pushed out. Ironically, I personally know several diversity officers who have left their positions with prestigious companies because they were hired as window dressing. Although I don’t know Morgan Stanley’s first Chief Diversity Officer, Marilyn Booker, her story is familiar to me, and she has now filed suit against her own company alleging racial bias.
So I’ll keep an eye on what these defendants and other companies do. Actions speak louder than words. I don’t think that shareholder derivative suits are necessarily the answer, but at least they may prompt more companies to have meaningful conversations that go beyond hashtag activism.
August 14, 2020 in Ann Lipton, Compliance, Consulting, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Financial Markets, Management, Marcia Narine Weldon, Shareholders, Stefan J. Padfield | Permalink | Comments (0)
Thursday, August 13, 2020
Those of us who study banking law and regulation know it’s an absolutely exciting area! That’s particularly true at the moment. Not only are we watching the path of Lacewell v. Office of the Comptroller of the Currency (OCC), a case about the OCC’s power to grant federal fintech charters to nondepository institutions, currently in the Second Circuit Court of Appeals, but we’ve also been treated to dueling banking law prof amicus curiae briefs (additional amicus briefs were also filed). In this week’s post, I’ll highlight the brief led by Lev Menand, Saule Omarova, Morgan Ricks, Joe Sommer, and Art Wilmarth, and signed by thirty-three banking law scholars (here).
The professors begin by stating their interest: “ensuring that banking agencies stay within their statutory mandates and work in the public interest.” They term the OCC’s proposal to charter nondepository fintech firms “a dangerous power grab premised on the novel claim that banking is just another word for lending.” In a nutshell, the scholars argue that “the OCC does not have the power to charter entities that are not in the deposit – that is, money creation – business.” It’s actually illegal – as the brief notes – for “unregulated entities to receive deposits.” “Bank deposits constitute the bulk of our nation’s money supply, and it is for this reason that banks are subject to strict federal oversight…Creating deposit dollars is a delegated sovereign privilege – an extremely sensitive activity that justifies federal chartering, regulation, and supervision.” The OCC’s very name is linked to the nation’s currency system!
As the brief explains, if the OCC were to be able to grant federal fintech charters to nondepository institutions, this would result in a significant expansion of its regulatory authority. It would also impact the governance of the Federal Reserve, and expand access to Fed master accounts and discount window lending. Additionally, as banks are exempt from the coverage of the federal securities laws and investment company laws, it would impact the coverage of these laws, and it would even create “an alternative, OCC-controlled system of business organization available to a huge range of companies.”
Indeed, the answer to what might seem to be a technical banking law question of interest to few (and perhaps boring to most) will have tremendous ramifications. The professors do an excellent job of explaining the implications of the OCC having the authority to grant federal fintech charters, and I encourage BLPB readers to review their brief.
Stay tuned for Part II, next Wednesday!! I’ll be highlighting Professor David Zaring’s Amicus Curiae Brief supporting the OCC’s position.
Wednesday, August 12, 2020
State Street, Public Sector Pension Funds, and In re Tesla: An Update on Uncovering Hidden Conflicts in Securities Class Action Litigation
My recent article with Anthony Rickey, Uncovering Hidden Conflicts in Securities Class Action Litigation, discussed how a court-appointed special master investigating a securities class action settlement discovered a $4.1 million “referral fee” paid by Labaton Sucharow LLP (“Labaton”) to an attorney who did no work on the case but purportedly secured the Arkansas Teacher Retirement System (“ATRS”) as a client. The bombshell revelation in Arkansas Teacher Retirement System v. State Street Bank and Trust Co. (“State Street”) undoubtedly stemmed from an email by Texas attorney Damon Chargois, who wrote:
We got you ATRS as a client after considerable favors, political activity, money spent and time dedicated in Arkansas, and Labaton would use ATRS to seek lead counsel appointments in institutional investor fraud and misrepresentation cases. Where Labaton is successful in getting appointed lead counsel and obtains a settlement or judgment award, we split Labaton’s attorney fee award 80/20, period.
The State Street payment was not the first: Labaton had paid a percentage of its total fee awards in at least seven other cases. While scholars had discussed the role of “pay to play” in securities class actions for years, State Street revealed a referral agreement and raised questions about the extent of favors and political influence brought to bear.
Shortly after we published Uncovering Hidden Conflicts, Judge Wolf issued a blistering opinion in State Street, finding that “the submissions of Labaton and [the Thornton Law Firm] in support of the request for an award of $75,000,000 were replete with material false and misleading statements” and that the firms “in many respects violated Federal Rule of Civil Procedure 11(b) and related Massachusetts Rules of Professional Conduct.” The opinion also described, in explicit detail, the origin of the relationship between Labaton, Chargois, and ATRS. Ultimately, Judge Wolf cut the fee from approximately $75 million to $60 million (the lower end of the “presumptive reasonable range”) and referred his opinion to the Massachusetts Board of Bar Overseers. An appeal is pending.
The State Street case prompted an exposé in the New York Law Journal, including extensive comments from Chargois’ former (now retired) law partner, Tim Herron, and a deep-dive into the history of the ATRS/Labaton relationship. Some Arkansas lawmakers questioned ATRS’ decision to rehire Labaton during a public hearing in May. As Professor Coffee put it, “The practices [the special master] uncovered is like turning over a rock in the field and finding some ugly things crawling around.”
More, after the jump.
Tuesday, August 11, 2020
The Mercer University School of Law seeks a candidate to fill the Southeastern Bankruptcy Law Institute & W. Homer Drake Jr. Endowed Chair in Bankruptcy Law. The faculty member will teach Bankruptcy Law and business related courses. Candidates who will add to the diversity of our faculty are particularly encouraged to apply. Mercer University is an AA/EEO/ADA employer. Applicants should have a J.D. degree from an accredited university/college, a commitment to excellence in teaching, and demonstrated potential for excellence in research and scholarship. Interested applicants will need to complete the brief online application at: http://hr.mercer.edu/jobs/ and attach a current CV with the names and contact information for three references. For information contact Professor Stephen Johnson, Chair, Appointments Committee, Mercer University School of Law, Johnson_s@law.mercer.edu.
Monday, August 10, 2020
Decent amount of reading for a summer than seemed quite chaotic. Fairly eclectic . Always open to suggestions.
God and Money - John Cortines and Gregory Baumer (2016) (Personal Finance). Two recent Harvard Business School graduates discuss thoughts on faith, finances, and giving. Less than 3% of American adults give away 10% or more of their income. Advocates for setting a floor of giving away at least 10% of gross income. In addition, the authors suggest setting an income and net worth cap and giving away the remainder. Reflection here (near the end of the post).
How to get Filthy Rich in Rising Asia - Mohsin Hamid (2013) (Novel). Family, love, business, morality, and violence. Novel claims to be written in a self-help style (though it didn’t really capture the self-help voice, in my opinion). I greatly preferred Hamid’s The Reluctant Fundamentalist (2008) to this one, but still think Hamid is talented and worth reading. As a father and a son, I liked this quote near the end - “You feel a love [toward your son] you know you will never be able to adequately explain or express to him, a love that flows one way, down the generations, not in reverse, and is understood and reciprocated only when time has made a younger generation of an older one.” (222).
When Breath Becomes Air - Paul Kalanithi (2016) (Memoir). Dr. Paul Kalanithi is diagnosed with metastatic lung cancer as a 35-year old nonsmoker. Paul’s diagnosis came just as he was finishing his training as a neurosurgeon at Stanford. Faith, family (including a newborn daughter), and work all provide purpose. Reflection here.
The Coddling of the American Mind - Greg Lukianoff and Jonathan Haidt (2018) (Social Psychology and Culture). Argues that privileged, upper/middle class children and students are overprotected. Children need more free play. Students need more exposure to differing viewpoints, learning civil discourse, and building well-supported arguments.
Let Your Mind Run - Deena Kastor (2018) (Memoir). History of a top professional runner and the role of positive thinking.
Love in the Ruins - Walker Percy (1999) (Novel). Satire, politics, religion, relationships, and the end of the world.
Amusing Ourselves to Death - Neil Postman (1985) (Cultural Commentary). Thesis - “Orewell warns that we will be overcome by an externally imposed oppression. But in Huxley’s vision, no Big Brother is required to deprive people of their autonomy, maturity, and history. As he saw it, people will come to love their oppression, to adore the technologies that undo their capacities to think.” (Preface).
I recently received word from one of our former guest bloggers, Marcos Mendoza (whom I introduced here and who posted here, here, here, here, and here), that his most recent insurance article, The Limits of Insurance as Governance: Professional Liability Coverage for Civil Rights Claims Against Public School Districts, has been published in the Quinnipiac Law Review. It is available on SSRN here. The abstract follows.
Insurance intersects with people throughout their lives, sometimes with elements that are unobserved or misunderstood. That is often the case with “insurance as governance,” a form of private contractual regulation. This theory assumes that insurers, to minimize their financial losses, attempt to shape policyholder conduct by employing private regulatory measures, primarily through underwriting and contractual loss prevention methods. Insurance as governance is about risk reduction.
This article addresses a question regarding civil rights—do insurers influence the civil rights policies of public school districts? A broad legal arc encompasses civil rights litigation against schools, from freedom of speech complaints to sex-based claims involving students. School boards purchase professional liability insurance to defend their operational policies and actions. Previous research has not examined whether insurers attempt to shape school officials’ conduct to reduce these claims. This article finds that insurer influence is surprisingly minimal despite the financial and potential societal benefits.
Landmark scholarship (Rappaport, Harvard Law Review, 2017) established that insurers could positively influence police officer conduct, resulting in fewer civil rights claims against police entities. But this school environment research determines that insurers of public schools do not employ assertive loss prevention methods to limit civil rights claims. This lack of private regulation is because school boards want and exercise significant local control authority, and the administrators of interlocal risk pools—the leading type of insurer discussed within—have political concerns about membership stability, leading to regulatory hesitation.
This empirical study makes two main contributions. First, it involves a discussion of why insurer private regulation does not linearly increase when school district civil rights exposures rise. This contribution includes a review of the school districts’ mutual ownership of the predominant school insurer, the interlocal pool; an examination of the strong local control desires of school boards; and an analysis of the attendant political concerns of the interlocal pool administrators. Second, it reviews the policy adoption process of school boards, notes how school officials interact with and tend to resist insurers, and documents how this sociolegal setting creates insurers’ reluctance to attempt conduct-shaping with school districts regarding civil rights. This article will further private regulation scholarship regarding governmental entities and allow scholars to reassess the reach of insurance as governance.
Both this article and an earlier piece written by Marcos are cited in the new edition of Kenneth Abraham and Dan Schwarcz's Insurance Law and Regulation casebook.
I took a quick peak into the article, even though insurance is not my legal "thing." (I come from a line of insurance brokers and underwriters, but I went a different way . . . .) The article is well written and covers a lot of interesting ground. It is a tale of private ordering and regulation--or, rather, the absence thereof. On a macro level, the piece asks and answers the question: why, if insurance contracts incentivize policyholder behavior in some circumstances or with some insureds, do they not incentivize behavior in or with others? Its focus is, as the article title suggests, on public school districts as policyholders and civil rights claims as insured risks.
Although The University of Tennessee recently faced significant exposure for alleged Title IX violations (settled four years ago), I admit I hadn't thought much about the exposure of school districts to civil rights litigation. Of course, that exposure includes more than Title IX litigation. As the article notes, Section 1983 claims, Title VI claims, Title VII claims, and disability claims under the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973 also represent potential liability threats. Overall, the level of risk is reasonably high.
Yet, perhaps not high enough . . . . In the introductory portion of the article, Marcos contrasts the regulation of public police through insurance policies (evidenced in prior literature) with the lack or failure of similar regulation of public school districts. In the conclusion, he notes, among other things, that "it seems that assertive regulation happens with public actors only when the risk exposures become extreme, and not before." He also observes that insurer, as well as insured, behaviors contribute to the creation of regulatory power through insurance arrangements. All in all, the article is an instructive read with analogies to many other areas in which common types of contracts are entered into by repeat players in a commercial or other context.
Sunday, August 9, 2020
This announcement landed in my "in box" courtesy of friend-of-the-BLPB ad compliance law expert Veronica Root Martinez at Notre Dame:
Notre Dame Law School Hiring Announcement
Saturday, August 8, 2020
Some information for legal studies in 2019 and 2020. Please feel free to e-mail me with more information
New Hires (from the ALSB Newcomer List)
Michael Bell (New Jersey City)
Emma Best (Wake Forest)
Ilisabeth Bornstein (Bryant)
Amy Criddle (NAU)
Rustin Diehl (Weber State)
Terrence Dwyer (Western Connecticut State)
Sam Ehrlich (Boise State)
Mark Feigenbaum (Ryerson)
Valerie Flugge Goyer (California State-Northridge)
Lindsay Jones (UGA)
Jeff Lingwall (Boise State)
Goldburn Maynard (Indiana)
Sharlene McEvoy (Fairfield)
Thomas Miller (Western Connecticut State)
Sejal Singh (St. John's)
Christina Skinner (Penn)
Justin Pace from Western Michigan to Western Carolina (2020)
Jennifer Pacella from CUNY/Baruch to Indiana University/Kelley (2019)
Mike Schuster from Oklahoma State to University of Georgia (2020)
Charlotte Alexander - appointed Connie D. and Ken McDaniel WomenLead Associate Professor of Law and Analytics
Gerlinde Berger-Walliser (UConn) - promoted to Associate Professor (with tenure)
Cristen Dutcher (Kennesaw) - promoted to Clinical Associate Professor
Jessica Magaldi (Pace) - appointed Ivan Fox Scholar and Professor of Business Law
Victor Lopez (Hofstra) - appointed Cypres Family Distinguished Professor in Legal Studies in Business
Wednesday, August 5, 2020
The Academy of Legal Studies in Business is in the midst of its annual conference. And, not surprisingly, it’s completely online. Although we aren’t able to meet in person this year, the event has been a really great, remarkably smooth experience. Pre-pandemic, the Program Chair, Professor Robert Bird, at the University of Connecticut School of Business, presciently selected the theme of “Managing Disruption.”
For me, one highlight of the conference thus far has been the opportunity to hear guest speaker Lee Buchheit’s remarks to the ALSB’s International Section on the “State of the Art of Sovereign Debt Restructuring.” Buchheit is arguably the world’s leading expert on sovereign debt restructuring. As an FT Alphaville piece put it: Buchheit “has represented nearly every country that has gone bankrupt since the 1980s, sparring with aggrieved creditors and cajoling stricken governments back to fiscal health — and in the process almost single-handedly building up an entire field of international law.” He didn’t disappoint, giving us a fascinating overview of the major disruption the pandemic is causing in the sovereign debt arena, and the likely challenges that lie ahead, including the risk of a systemic sovereign debt crisis such as happened in the 1980s. For readers interested in learning more about Buchheit’s perspectives on the impending issues in sovereign debt markets, a few places to start are here and here.
Afterwards, the International Section elected a new officer, Professor Justin Evans, to serve the Section, along with Professor Kevin Fandl (President) and myself (Vice-President). A total, but quick, fun digression: Fandl has led several faculty development trips in international business to Chile to study innovation in Chile focused on wine. Watch out for the next iteration!
Our Section meeting was followed by presentations for the ALSB Ralph Bunche Award for Best International Paper. This Award aims to recognize excellent, unpublished research in the area of international business law. There were many exceptional submissions, and it was difficult to select the finalists. Professor Abbey Stemler presented Regulation of Sharing Economy Platforms: A Multi-Country Comparative Study. Professors Brian Feinstein and Kevin Werbach discussed The Impact of Regulation on Global Cryptocurrency Trading (here). Professor Tim Samples, the winner of the Award for 2020, spoke about Investment Disputes and Federal Power in Foreign Relations (here).
Finally, I want to send a big THANK YOU to outgoing President Professor Stephen Park! With his tireless work for, and commitment to, the Section, he did a great job of modeling for future officers excellence in this role.
Tuesday, August 4, 2020
Cynthia Dahl: "any corporate lawyer with technology clients must understand standard essential patents"
Cynthia Dahl has posted "When Standards Collide with Intellectual Property: Teaching About Standard Setting Organizations, Technology, and Microsoft v. Motorola" on SSRN (here). The paper provides "a Teaching Guide to a plug and play module designed to easily allow professors to insert teaching about SEPs into their IP or other commercial courses." I have provided the abstract below.
Technology lawyers, intellectual property (IP) lawyers, or even any corporate lawyer with technology clients must understand standard essential patents (SEPs) and how their licensing works to effectively counsel their clients. Whether the client’s technology is adopted into a voluntary standard or not may be the most important factor in determining whether the company succeeds or is left behind in the market. Yet even though understanding SEPs is critical to a technology or IP practice, voluntary standards and specifically SEPs are generally not taught in law school.
This article aims to address this deficiency and create more practice-ready law school graduates. The article is a Teaching Guide to a plug and play module designed to easily allow professors to insert teaching about SEPs into their IP or other commercial courses. It is particularly designed for professors who are unfamiliar with (or even intimidated by) the technical subject matter of SEPs. The Teaching Guide unlocks a number of helpful resources, available at the Penn Program on Regulation website (direct link on page 4). The resources together encompass a complete plan for the professor, using the recent seminal case of Microsoft v. Motorola - where licensing some SEPs went horribly wrong - to illustrate themes. Besides the Teaching Guide, the resources include a business school-style Case Study for students to read on the Microsoft case, recorded video interviews with the lead counsel for each party, the federal court judge for the case and his clerk, and other supporting materials. The Teaching Guide provides contextual background for the professor to explain SEPs and particularly this case, suggests a class discussion outline, lists discussion points and proposed “answers,” includes prompts to spark public policy debates, and offers an extensive resources library for further study, including cases as well as articles. It even helps the professor accommodate longer or shorter sessions, calibrate to more or less outgoing classes, and adapt the module for use in many different kinds of classes, including IP classes, but also classes in remedies, contracts, federal courts and licensing, among others. By offering guidance but much flexibility, the Teaching Guide aspires to make incorporating this critical SEP subject matter into the law school curriculum straightforward and accessible.
Monday, August 3, 2020
Drake University invites applications from entry level and lateral candidates for a tenure-track Assistant/Associate Professor of Law position beginning in the 2021-22 academic year. We are interested in candidates with demonstrated interest or experience in Technology Law. Applicants must hold a J.D. degree (or the equivalent) and should have a record of academic excellence, substantial academic or practice experience, and a passion for teaching. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.
In addition to service and scholarship, this position involves teaching courses such as Legal/Ethical Issues in Technology, Technology Law, Privacy Law, and related areas in both the Law School and the College of Arts & Sciences as well as advising law and undergraduate students and serving as a University resource on technology legal issues.
Drake University sustains a vibrant intellectual culture, and Des Moines has been recognized as the Best Place to Live (US News), the Best Place for Young Professionals (Forbes), and as the #1 Best U.S. City for Business (MarketWatch).
Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status. Diversity is one of Drake’s core values and applicants need to demonstrate an ability to work with individuals and groups of diverse backgrounds.
Confidential review of applications will begin immediately. Applications (including a letter of interest, a complete CV, teaching evaluations (if available), a diversity statement, and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: firstname.lastname@example.org.
Drake University Law School invites applications from entry level and lateral candidates for a tenure-track or tenured Assistant/Associate/Professor of Law position beginning in the 2021-22 academic year. We are especially interested in candidates with demonstrated interest or experience in Contracts, Sales, Tax, Intellectual Property, and Family Law. Applicants must hold a J.D. degree (or the equivalent) and should have a record of academic excellence, substantial academic or practice experience, and a passion for teaching. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.
Drake University Law School sustains a vibrant intellectual culture, and Des Moines has been recognized as the Best Place to Live (US News), the Best Place for Young Professionals (Forbes), and as the #1 Best U.S. City for Business (MarketWatch). The Law School features innovative and nationally recognized programs in agricultural law, constitutional law, legal research and writing, and practical training.
Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status. Diversity is one of Drake’s core values and applicants need to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.
Confidential review of applications will begin immediately. Applications (including a letter of interest, a complete CV, teaching evaluations (if available), a diversity statement, and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: email@example.com.
The University of Utah S.J. Quinney College of Law invites applications for faculty positions at the rank of associate professor (tenure track) beginning academic year 2021-2022. Candidates should be aspiring law faculty or junior lateral candidates. Qualifications for the positions include a legal degree, an exemplary academic record, demonstrated scholarly merit, and proven or potential teaching distinction, and a demonstrated commitment to diversity, equity, and inclusion. Although all qualified candidates will be considered, the College of Law seeks candidates with teaching interests primarily in the areas of administrative law, business associations, civil procedure, commercial law, constitutional law, contracts, clinics/experiential learning, and federal courts, and secondarily in the areas of environmental law, property, and torts. Candidates should submit an application to the University of Utah Human Resources website: https://utah.
Mitch Crusto, a long-term buddy from past Southeastern Association of Law Schools (SEALS) conferences, contacted me last year about participating in a discussion group at this year's SEALS conference on issues surrounding and emanating from Jeffrey Epstein's significant asset transfers to a trust (for the benefit of his brother) two days before his death, currently ruled to be a death by suicide. The discussion group, held yesterday afternoon/evening, was designed to explore interdisciplinary approaches to legal problem-solving, with the thought that the conversation might spur us to bridge doctrinal silos not merely for ourselves, but also for the benefit of our students (in and outside the classroom). Megan Chaney and Victoria Haneman spoke passionately on that issue to lead-off our discussion. Doctrinal areas covered in the session included trusts & estates, business associations, federal income taxation, criminal law, civil rights, and professional responsibility (and I am sure that I am missing some . . . ).
In our initial set of communications, I asked Mitch what possible angle I could have on the Epstein trust matter based on my work and areas of expertise. He noted in response that he would like the session to address, e.g., whether veil piercing doctrine from the business entity law sphere might have a role in helping Jeffrey Epstein's judgment creditors--especially victims of his sexual exploitation, trafficking, molestation, and rape (including the sexual exploitation of teenaged victims)--satisfy any damages awarded to them with assets transferred to and held in the trust. I took the bait, more out of allegiance and curiosity than out of a feeling that I had something valuable to contribute. The session was extremely rewarding professionally and personally. I am sharing some musings from it today, most of which I also shared in yesterday's discussion. They are in the nature of a fledgeling thought experiment and do not reflect deep research.
At its base, the Epstein asset recovery issue presents as a fraudulent conveyance question: can creditors claw back into Jeffrey Epstein's estate the assets he put into trust (presumably to avoid keeping those assets in his name and, after death, in his estate) and, if so, under what circumstances? In reporting on the trust and the ability of Jeffrey Epstein's creditors to access assets from it, a Forbes article from last year concluded, on balance, that the trust assets may well be reachable by those creditors to satisfy their judgments. Of course, certain factual and legal matters asserted or assumed in the article's assessment would need to be established in fact (and participants in yesterday's session both agreed and disagreed with the conclusion expressed in the article, based on their individual knowledge of and "take" on the facts).
Aways loving a challenge, I set out to think about the business entity law angle Mitch pitched--focusing in on veil piercing doctrine (as the same is legally recognized under the law of corporations and limited liability companies). Interestingly, the Forbes article described a trust by contrasting it with these forms of business entity.
It is important to understand what a trust is and isn't. First, what it isn't: A trust has no physical existence: You can't have it over to your house on Saturday afternoon for beer and bar-b-que. Nor does a trust have a separate legal existence either, since it is not considered a "person" under the law that can itself sue or be sued; contrast this with the legal fictions known as corporations and LLC, which are considered "persons" under the law that can sue and be sued in their own names.
Right. So, there is no legal entity to disregard (although it was noted in the discussion group that a trust may be a taxable entity--a recognized legal person--for federal income tax purposes). There is, instead, the need to disregard a unique, legally recognized fiduciary relationship built on a contract or contract-like arrangement that involves the transfer, holding, and administration of property. The lack of legal entity status gives me pause.
Also, of course, veil piercing relates to who is liable for a loss (not whether assets owned of record by a transferee may be recovered, of sorts, and used to satisfy liabilities of the transferor). Various theories (e.g., alter ego, insufficient separateness, unity of interest/ownership) underlie the equitable application of veil piercing doctrine. Given the nature of a trust, however, I am hard-pressed to come up with a theory that would explain or justify holding a properly constructed trust or its trustee liable for the grantor's wrongful conduct. The possibility of disregarding the trust is not, then, logically rooted in notions of direct or vicarious liability operative in business entity law.
All that having been said, there is an interesting, albeit imperfect, analogy to explore between reverse veil piercing and fraudulent transfer law as the same may relate to the Jeffrey Epstein trust scenario. In reverse veil piercing, as business lawyers know well, a business entity is held legally responsible for damages created by the wrongful conduct of a shareholder. As a result, the corporation's assets would be used to satisfy the judgment for that wrongful conduct. The argument in the Epstein trust situation would be that transfers to a trust should be voidable to cover damages created by the wrongful conduct of the grantor. Thus, assets of the trust would be used to satisfy the judgment for that wrongful conduct. The analogy is arguably grounded in common policy underpinnings--the desirability that a plaintiff's recovery of damages for bona fide cognizable claims not be avoided by the establishment of legal structures purposefully designed to defraud or promote fundamental injustice. Kenya Smith put a point on the analogy in our session yesterday by asking us to consider whether reverse veil piercing would be appropriate if Jeffrey Epstein had transferred his assets to a corporation instead of a trust . . . .
Indeed, it appears that the reverse veil piercing argument has been used in at least a few cases. A 2020 Sixth Circuit opinion--Church Joint Venture, L.P. v. Blasingame, 947 F.3d 925 (6th Cir. 2020)--addresses reverse veil piercing in relation to a trust governed by Tennessee law. The opinion of the court notes that, under Tennessee law, reverse veil piercing has only been applied in the parent-subsidiary context. Both the opinion of the court and the concurrence offer much to consider. (I have more to say about the concurrence in the next paragraph.) Moreover, a Utah law firm has published a helpful post that offers a brief treatment of three cases--a federal tex case in which the argument was successful and two non-tax cases in which the argument was unsuccessful. (The post also includes information about two possible alternative arguments applicable to asset protection trusts: that the funding of all or part of the trust was a fraudulent transfer and, in the case of a self-settled trust, that the trust should not be recognized under applicable law.)
A problem with the reverse veil piercing analogy, to the extent it may be considered for use in a legal action, is the possible application of the doctrine of independent legal significance (a/k/a the doctrine of equal dignity). Under that doctrine, as it might be applied in this context, if a person chooses to use a corporation to accomplish a goal, then the law applicable to corporations should govern; and if a person chooses to use a trust to accomplish a goal (even if it be the same goal that could be accomplished with a corporation), then the law applicable to trusts should govern. A court may use that doctrine to reject the application of corporate law to the trust. In fact, the concurring opinion in the Church Joint Venture case cited above is grounded in independent legal significance and notes some of the points regarding the legal entity status (or a lack thereof) of trusts raised above. The concurrence begins: "I join the court’s opinion in full. I write to add a word (or two) about my discomfort with incorporating 'veil piercing' and 'alter ego' theories into trust law. Both concepts originate in corporate law, and both concepts should stay there." Church Joint Venture, L.P. v. Blasingame, 947 F.3d 925, 935 (6th Cir. 2020). I found the concurrence a great read overall. Another quotable from that opinion: "How could one 'pierce the veil' of a trust? It doesn’t have a veil, much less any form to pierce into." Id.
Notwithstanding the foregoing, it may be possible to use veil piercing not as a primary argument but, rather, as support for another legal theory of recovery (likely, fraudulent conveyance). It seems that legal actions may often raise both fraudulent transfer and veil piercing arguments, in the alternative, in any case. Regardless, it has been both instructive and satisfying to identify, think through, and discuss these issues with colleagues from other disciplines and other law schools. I look forward to future conversations of this kind with these and other colleagues in legal education, and I also look forward to engaging students with and in these discussions.
Sunday, August 2, 2020
Greetings from SEALS (virtually). I've just finished sitting in on the last of several excellent panels on online teaching. Below are tips from the panelists, some of my own lessons learned, and key takeaways from the excellent book Small Teaching Online. For more of the foundations of online teaching see Part I, Part II, Part III, and Part IV.
- Have a class zero- you and students can record an introduction of themselves, pets, hobbies, skills, talents etc. Make sure you’re smiling and conveying your excitement in the video about the class.
- You can also have a class zero where you spend 5 minutes on Zoom with each student before the first day of class talking to them about any questions they have about the class, their tech etc.
- Let students know that this online format is not just a pandemic issue. Virtual offices are increasingly common in practice.
- Think about how to motivate students- what counts as a grade? Should you raise the class participation component and if so, how will you measure it? Will watching videos before class and participating in discussion boards count?
- Stand when recording your video lectures or teaching synchronously. Students prefer it. You can get a standing desk or go old school like me and use a pile of textbooks to create a lectern.
- Think about creating mnemonic devices through your intentional use of imagery. Use images appropriately so that the students can connect the image with what you want them to remember.
- Allow the students to do more prep before class. Let them find the rule and the law and use a problem method during synchronous sessions where the students work on hypotheticals.
- Make sure that you explain the learning objectives each week or each module so the students know what they are doing, why, and where it fits in the course. You can even add how the module or unit will help them in practice.
- You can get information to students with an announcement or email, but consider using a short video, especially if you want to explain an assignment and add more nuance. Make sure to add your personality in to the video. You can also use video to explain information that students find confusing. This way you can avoid answering the same questions over and over again.
- Use the subtitle or caption feature for your powerpoints when you are recording your asynchronous lecture.
- Consider having a transcript of your lecture videos or a detailed outline, especially if you don’t have subtitles or captions in your videos. I don’t write out an outline for my classes, but if you do, you can post that outline.
- Have some questions for the students to think about while they watch the asynchronous video lecture. I will use Feedback Fruits so students will answer questions while they watch the videos and won’t be able to continue watching until they answer the questions. You could be more low tech and provide them with the question in advance and require them to answer the questions before class in a no or low-stakes quiz.
- Students seem to prefer short, informal videos to highly produced videos. Students respond better to conversational tones and unedited videos. Of course, don’t just read the slides.
- Try to avoid talking about dates or current events in your videos, unless it’s really relevant. Make sure the videos can stand alone as an independent product and don’t refer back to other videos.
- Disclose your grading rubric early or have students develop a rubric based on what you have communicated. This will help you know whether they understand your materials and your grading standards.
- Learn from neuroscience- do ungraded short quizzes and spaced repetition before and after class. For a business associations class, for example, you can use old bar questions each week, which will get them familiar with those type of questions.
- Use some of what works in K-12 teaching about how to keep students engaged, where they empower the students to learn. We focus more on how we perform as teachers vs. how students learn. If you watch YouTube videos of K-12 teachers, you can learn a lot that will also apply to law students.
- Use non-graded events throughout the semester such as short essays or multiple choice so that they can see how they are doing. Do this anonymously and provide the answers or model answers.
- If your class is small enough, greet students by name when they come in the Zoom room.
- Start each synchronous class with a question in the chat- it can relate to the materials, something in the news, or pop culture etc. If you normally arrive early to the physical classroom, do the same on Zoom and recreate that casual conversation.
- Make sure to save the chat in Zoom so that you can refer to issues in the next class or you can send out an email or announcement to discuss what you may have missed in the class.
- If you have a TA, that person can monitor the chat for you while you're teaching.
- In the first week, think of creating an exercise that relates to what the students may do for the final exam. This may include multiples choice, a short essay etc.
- Have panels of students on call for certain parts of the class, just as you would in residential classes.
- Try peer-to-peer formative assessment through peer review and team-based learning. This will work better in an online than a residential setting. See my earlier posts for more information on TBL.
- Take a break in class if it’s more than an hour. Tell the students that they can use that time to take notes, talk with each other etc.
- Add humor to the course. Consider a contest for best virtual background but be mindful that some students may not have the bandwidth for this. If all of your students can do it, consider a “prize” for the best background.
- When you use breakout rooms, have a class document that students can fill out or download and then share the screen during the breakout rooms. While they can use a whiteboard in breakout groups, they can’t share their breakout room whiteboard in the main room. You can share using Google docs in Zoom. This may work better if students need to report back to the class.
- In class, reboot student attention with thumbs up, thumbs down, polls etc. Try to keep things moving every 10-15 minutes.
- Have students do a short reflection at the end of a unit to discuss what they learned or struggled with. Give them the choice of using video or written format.
- If your LMS allows it, have a conditional release system so students cant’t see certain content until they have reached a certain score or milestone with the materials.
- Use the discussion board feature for students to answer questions and then make sure that you answer within 24 hours.
- If you choose to use discussion board for substantive student submissions, make sure that you have a clear rubric, with word count requirements etc. Consider having students have a choice of questions to answer. You may decide that if a response does not meet the rubric, the student gets 0 points, so it’s all or nothing. You can also require students to post before they see other posts. If you have a very large class, you can divide them into groups so the students are only looking at a smaller group of posts.
- Think about providing feedback on assignments via audio or video, if your class is small enough. Many students find that this provides more of a connection to the professor.
- Early or midway through the semester, use Google forms, survey monkey, or another mechanisms for students to let you know anonymously what's working and what’s not. Ask them what you should start, stop, and continue doing.
- Send personal emails when a student misses class. Just asking if the student is ok and making sure s/he knows where to find the class recording, can further the sense of community and connection.
- At the end of the semester, have the students assess themselves. They can also discuss three takeaways from the course and how they plan to use it in practice.
Best of luck planning for the new semester. Stay safe!
(A bit of the harvest picked from my parent's garden in north Georgia yesterday)
Last Thursday my neighborhood book club discussed work by poet David Whyte. This book club has been especially life-giving during the pandemic. I have deep admiration for every member of the group and always learn from our meetings. In March and April, we briefly moved to Zoom, but were unable to capture the same energy. We then decided to meet in person, bringing chairs to a member’s spacious driveway that backs up to common green space.
The work we discussed last week was not actually a book, but rather a few hours of David Whyte’s musings, only available in audio form. Much of the talk involves Whyte reading poetry – primarily his own, Rainer Maria Rilke’s and Mary Oliver’s – and relating that poetry to questions many of us ponder in midlife.
While I can’t locate the exact quote in the long recording, Whyte used a harvesting metaphor effectively. Whyte suggests that if we don’t slow down to be present for the harvest times in our lives, the fruit will rot on the vine. He reminds us, for example, that our child will only be five years old for a relatively short season. By being present for the harvest, I think Whyte means celebrate (among other things).
The practice of law, at least as it appears to be carried out by most major firms, leaves precious little time for celebration. In fact, during my handful of years at two major law firms, I can only recall a single occasion of truly pausing to celebrate the harvest.
This occasion involved a closing dinner. A celebratory dinner after closing a deal to buy or sell a company is relatively common in M&A practice. In my somewhat limited experience, however, law firms often organized these dinners to impress clients and tee up future deals. Networking, not savoring, is the focus. Often only the partners and clients attend closing dinners. The associates (or at least the junior associates) are usually back in the office working on the next matter.
This dinner was different. King & Spalding partner Russ Richards had just closed two relatively large deals in the same week with the assistance of same four associate attorneys. While the hours had been grueling, even by BigLaw standards, I didn’t expect to be invited to a closing dinner. Surprisingly, Russ not only invited the other three associates and me, but also encouraged us to bring a dates. Moreover, this was not a dinner to impress the clients; no clients were invited. We did not spend much time, if any, setting up future deals. We just celebrated work well done with wonderful wine, food, and company.
If there were more of this sort of unadulterated celebration of the harvest in BigLaw, I imagine the turnover would be much lower. And maybe one of the reasons Russ Richards excelled in a 45+ year career with the same firm is because he created moments of celebration and reflection like these. As I have argued before, I think one of the ways to make BigLaw more humane is to work in some time for celebration and rejuvenation, perhaps in the form of sabbaticals. A formal promotion to “senior associate” around the four-year mark, followed by a brief sabbatical (even as short as one month) would do wonders for the profession. Even longer sabbaticals, perhaps tied to a project improving the community, could be worthwhile as well.
Of course life is not, and probably should not be, constant celebration. To stretch Whyte’s metaphor further—as anyone who has tried their hand at farming knows—fruit that is the product of a season of sweat tastes sweeter than fruit obtained from a grocery deliver service. The gritty, difficult, back-spasm-inducing times are an important part of the process. That said, especially for those of us bent more in the direction of overwork, making some space to celebrate the harvest is essential.
Finally, and importantly, we should make a point to notice and celebrate the achievements of others. Whyte seems to focus on being present for the fruition of our own work, but I am convinced that pausing to celebrate the accomplishments of others can be even more worthwhile.
Saturday, August 1, 2020
Gabriel Rauterberg has just posted a fascinating new paper, The Separation of Voting and Control: The Role of Contract in Corporate Governance. It’s about shareholder agreements, and in particular, the fact that they are surprisingly common not only in private companies, but also in public companies. These agreements typically involve a founder and/or institutional investors like private equity funds, and contain various provisions related to corporate control, such as promises to support certain director nominees, and veto power over various types of corporate actions. As Rauterberg explains, shareholder agreements grant the parties far more freedom to order their arrangements than do bylaws and charter provisions; corporate constitutive documents, for example, could not guarantee board seats for specific nominees.
Rauterberg points out that these raise interesting questions under Delaware law, especially with respect to whether these agreements improperly end-run around mandatory corporate governance provisions. This is particularly so when the corporation itself is a party to the agreement, and the board is bound to take certain actions, like recommend a particular board nominee to shareholders or include a nominee on a particular committee. As he puts it:
The tapestry of corporate law draws fundamental contrasts – between control rights and contractual rights, between the types of rights held by creditors (generally, promissory and fixed) and by equity (generally, residual and discretionary), between internal and external, and ultimately, turning on all of the above, between those who do and do not owe fiduciary duties and those who do and do not receive fiduciary protection. It is simple to state why shareholder agreements challenge this picture: They grant significant corporate power to the paradigmatic “internal” patron – shareholders – but in a way that is fixed, external, and contractual, rather than routed through the board.
On this, I have to point out that preferred stock raises similar challenges. As William Bratton and Michael Wachter have explained, “Preferred stock sits on a fault line between two great private law paradigms, corporate law and contract law.” That fish-or-fowl problem has made Delaware courts quite uncomfortable with preferred shareholder rights; Bratton and Wachter go on to note that cases involving the rights of preferreds follow a simple maxim: “The preferred always lose.”; see also Victor Brudney (“For more than half a century the courts have systematically, if not uniformly, upheld the commons’ view of the scope of its discretion to act opportunistically toward the preferred stockholders under the preferreds' investment contract or the statutes that the contract is said to incorporate.”)
The other interesting point that Rauterberg makes has to do with who counts as a controlling shareholder. That’s a topic I’ve revisited a lot in this space – most recently here – and it’s an issue for Rauterberg as well. Most companies with shareholder agreements also identify as controlled companies, but a significant minority do not, which is ultimately going to be a challenge that lands in Delaware’s lap. Indeed, a couple of weeks ago I posted about Lemonade, which went public as a benefit corporation under Delaware law. Lemonade’s two founding shareholders each hold just under 30% of Lemonade’s votes, and they have a shareholder agreement with Softbank – which has another 21% – that the three together will decide on the disposition of Softbank’s votes. But Lemonade does not at this time identify itself as a controlled company. So that’s going to be something to watch if litigation arises.
Friday, July 31, 2020
The School of Business at the University of Connecticut invites applications for a tenure-track or tenured position at the rank of Assistant Professor, Associate Professor, or Professor of Business and Human Rights to begin in Fall 2021.
This faculty position will focus on the intersection of business and human rights broadly understood, including, but not limited to, environmental and social sustainability, corporate social responsibility, social innovation, and social entrepreneurship. The position will reside in the department/discipline of the successful candidate’s research and teaching domains, including Accounting, Finance, Management, Marketing/Business Law, and Operations and Information Management. The successful candidate will collaborate on the development and implementation of research, curricular, and public engagement activities with faculty affiliated with the Human Rights Institute and the Business and Human Rights Initiative at the University of Connecticut. See the following links for more information about the Human Rights Institute (https://humanrights.uconn.edu) and the Business and Human Rights Initiative (https://businessandhumanrights.uconn.edu).
Preference will be given to applications received by September 18, 2020. For a full description of the position and to apply online, go to: https://academicjobsonline.org/ajo/jobs/16575.
Thursday, July 30, 2020
On June 29, 2020, the Department of Labor reinstated it’s “five-part test” for determining what constitutes investment advice under the Employee Retirement Income Security Act (ERISA). The test first went into effect in 1975 and remained the governing standard as financial products and the investment advice industry changed significantly. In 2016, as part of its fiduciary rulemaking, Labor embraced a broader test which was later invalidated by the Fifth Circuit.
The reinstated five-part test governs when someone giving investment advice for a fee will be classified as a fiduciary under ERISA and subject to its obligations. To be subject to ERISA, the person must:
- render advice with respect to the plan [or IRA] as to the value of securities or other property, or make recommendations as to the advisability of investing in, purchasing, or selling securities or other property;
- on a regular basis;
- pursuant to a mutual agreement, arrangement, or understanding with the plan, plan fiduciary or IRA owner, that,
- the advice will serve as a primary basis for investment decisions with respect to plan or IRA assets; and that
- the advice will be individualized based on the particular needs of the plan or IRA.
The five-part test should be modified to better cohere with the current economic environment. When Labor promulgated the five-part test in 1975, Congress had not yet modified the tax code to allow for employees to contribute a portion of their salary to 401(k) plans and most retirement assets were in defined-benefit pension plans. That change came in 1978 and eventually ushered in the current defined-contribution era. At present, the test does not cohere with the current legal and business environment and should be modified.
Remove the Regular Basis Requirement
Labor could do substantial good by removing second part of the test, the requirement that advice must be given “on a regular basis.” Single-shot events, such as the sale of annuities or other insurance products or a decision about whether to “roll over” assets from one account type to another have substantial impacts on a person’s retirement. Labor previously recognized this issue in its 2016 rulemaking and found that trillions of dollars shifted each year with rollover transactions. The “regular basis” requirement now excludes these transactions from ERISA’s scope and allows assets accumulated under ERISA’s protection to be dissipated without protection.
The “regular basis” requirement results in applying different standards to identical activities with identical effects. A consultant who regularly provides advice about small issues would be subject to fiduciary requirements when giving advice about the disposition of an entire pool of assets. Yet if a different consultant were hired to invest an entire pool of assets in a single transaction, the second consultant would not be bound by fiduciary obligations even though she would do the exact same thing with the same effects. Maintaining the “regular basis” requirement effectively allows single-shot transactions to misallocate ERISA-protected assets with impunity.
Remove Requirements That an Investor and Advisor
Mutually Agree That Advice Will Serve as the Primary Basis for an Investment
Labor should also reaffirm its prior conclusion the “mutual agreement” and “primary basis” requirements should be modified because it does not cohere with the current defined-contribution plan environment. Under the five-part test, a person may escape fiduciary status by arguing that there was no “mutual agreement” that their advice would be the “primary basis” for an investment decision. Fine print in sales contracts disclaiming any mutual agreement and claiming that the purchaser warrants that they have made their own decision by signing the agreement may be proffered to rebut the existence of any mutual agreement.
This requirement allows salespeople to exploit the wide financial sophistication gap between Americans and the financial services industry. Americans often struggle to understand even rudimentary financial concepts. Labor should not abdicate its responsibility to protect retirement assets by allowing simple disclaimers to greenlight profiting from shoddy advice.
Moreover, Labor should not allow any financial professional to give substandard or self-serving advice merely because it may not be the “primary basis” for an investment decision. Consider one scenario where a retirement saver hears from an uncle that his assets have been placed inside some complex annuity contract. The saver may meet with an insurance company’s representative to inquire about the product because an uncle purchased it. Here, the representative should not be free to give low-quality advice simply because the primary basis for exploring the option was the uncle’s purchase.
Identifying whether financial advice, independent research, or some other reason served as the “primary basis” for an investment decision may be impossible. In any event, persons giving financial advice for a fee should not be able to dispense lower-quality advice on the theory that an investor should not rely on that advice as the primary basis for their investment. This approach debases investment advice and turns it into a predatory trap.
Wednesday, July 29, 2020
So, I knew about TEDx and TED Talks, but I just learned about TED-Ed today in viewing Professors George Siedel & Christine Ladwig’s “Ethical Dilemma: The Burger Murders” (here). If you’re planning to incorporate an ethics module into your business law courses this year, including their video and accompanying teaching materials could be a great, entertaining addition to your class that I think students would love. Along with their fun, short video, Siedel and Ladwig have provided teaching materials (here) that include multiple choice and open ended questions; a “dig deeper” piece; and, a guided discussion section. They posted only yesterday, and have already had 152,224 views and 744 comments! Check it out! And if you didn’t see my prior post on Siedel’s negotiation materials, check that out too (here)!
Tuesday, July 28, 2020
As I have been working on a few projects involving law firms and legal education in the pandemic, I have come across a number of fun business law items involving mergers and acquisitions. The news reports I have noted cover regulatory changes, case law, and planning/drafting. Both small and large transactions are receiving attention. I shared these with Business Law Section colleagues in the Tennessee Bar Association about a week ago. I got some positive response. So, I am sharing them here, too. Feel free to post what you are seeing in this regard in the comments.
In the small business arena, a recent American Bar Association (ABA) Business Law Today article focuses in on clawback provisions in equity sale agreements. These provisions, the article avers, “enable the former owner to participate in the consideration received in a subsequent sale of the business by the remaining owner or owners.” The article lists a number of key things to consider in drafting these kinds of provisions.
Another ABA Business Law Today piece notes the trend toward glorifying deal price in valuation determinations, as evidenced in recent Delaware court opinions on appraisal rights. The article cites to three leading cases, two in 2017 and one in 2019, that address fair value determinations under Delaware law. As to the most recent case, Verition Partners Master Fund Ltd. v. Aruba Networks, Inc., No. 368, 2018 (Apr. 16, 2019) (per curiam), the article importantly notes that “the Delaware Supreme Court sides with the Chancery Court’s position—and reinforces recent Delaware jurisprudence—by holding that the deal price should act as a ceiling for a valuation, a result that will likely reinforce the trend in place since 2016 toward decreasing numbers of appraisal petitions.”
Another noteworthy M&A news item is the recent release by the Federal Trade Commission (FTC) and Department of Justice (DoJ) of final Vertical Merger Guidelines. As multiple sources report (see, e.g., here and here), formal guidelines for non-horizontal mergers were last issued in 1984. The most recent articulation of the FTC and DoJ Horizontal Merger Guidelines occurred in 2010.
Finally, an article in the National Law Review reminds us that it may be a good time to review client charters and bylaws to ensure that anti-takeover protections are up-to-date and adequate. A helpful list of possible anti-takeover devices is included in the article. The article also covers general corporate governance upgrades that may be warranted at this time. Specifically, the article recommends “that boards evaluate potential revisions to their bylaws to allow for greater flexibility and clarity relating to shareholder meetings and board actions.” Suggestions for shareholder meeting enhancements include ideas relating to virtual meetings and meeting procedures. Advice on board action provisions relates to remote meetings and emergency bylaws.
Why should we care about these developments, observations, and recommendations? Changes in the economy and in specific client circumstances relating to the COVID-19 pandemic may make M&A a more significant part of corporate governance and transactional activity for the next year or two. As a result, it will be important for business lawyers to remain up-to-date on current M&A activity as well as related regulatory pronouncements and practice points. As academics, we, too, may be engaged in related activities for the same reason. Food for thought . . . .