Saturday, August 13, 2022

I really need to get out more

Hi, so first, if you're reading this, you probably already noticed, but for what it's worth, it appears that email notifications of new posts have entirely stopped.  So, if you've been following us via email up until now, please be aware you'll need to switch to another method - I personally use Feedly to keep track of blog updates.

With that out of the way, obviously, my specialty is corporate and securities law, and one of the odder things about this space is that while it has incredibly well-developed standards for evaluating and litigating fraud claims, those standards are very different from the standards for fraud claims in other areas of law.

I was reminded of this when I read the decision denying a motion to dismiss in Fishon v. Peloton Interactive, 2022 U.S. Dist. LEXIS 143930 (S.D.N.Y. Aug. 11, 2022).  Fishon is a consumer fraud action brought under New York law against Peloton for misrepresenting the breadth of its song catalog.  Defendants argued, among other things, that the plaintiffs could not prove they had heard any misrepresentations, and therefore they had not been injured. The court rejected that argument, holding:

a plaintiff can also plead both injury and causation under GBL §§ 349 and 350, by alleging that the defendant’s misleading or deceptive advertising campaign caused a price premium, that the price premium was charged both to those who saw and relied upon the false representations and those who did not, and that, as a result of the price premium, plaintiff was charged a price she would not otherwise have been charged but for the false campaign….

These cases persuade the Court that, while a reliance- or exposure-based theory of injury is one way to plead that a defendant’s misrepresentation caused harm, it is not the only way. The operative question is whether a plaintiff suffered an injury because of a defendant’s misrepresentation; it is not whether that injury was tied to plaintiff’s reliance on the misrepresentation. Plaintiffs have alleged that Defendant made misrepresentations that would have mislead a reasonable consumer, that those misrepresentations were consumer-facing and had broad impact, and that as a result of those widespread misrepresentations that mislead reasonable consumers, they paid higher costs. By alleging that they paid a higher price—“increased costs”—for their products because of Defendant’s widespread misrepresentations about the value of the product, Plaintiffs have pleaded an injury that was attributable to Defendant’s alleged misrepresentation, regardless whether they ever personally saw the representation.

That’s fraud on the market. It’s fraud on the market in a consumer action.  And, in fact, this kind of holding is not unusual; there are cases with similar holdings under other states’ consumer protection laws. See, e.g., Hasemann v. Gerber Prod. Co., 331 F.R.D. 239 (E.D.N.Y. 2019); Nelson v. Mead Johnson Nutrition Co., 270 F.R.D. 689 (S.D. Fla. 2010).  What’s striking here is that a securities fraud plaintiff would absolutely not be able to recover under similar facts, because there has been no showing of market efficiency.  And, in fact, courts have rejected attempts by securities fraud plaintiffs to use fraud-on-the-market for primary market transactions, which are of course akin to consumer purchases.  See, e.g., Freeman v. Laventhol & Horwath, 915 F.2d 193 (6th Cir. 1990).

What’s the difference? It appears to me that, doctrinally, the reason for the difference is that the consumer protection statutes at issue require causation, but they do not require reliance.  So plaintiffs are permitted to argue that a lie generally increased prices, but they don’t have to argue that any consumer subjectively believed that price to be indicative of the product’s value.

That’s different than in the securities context.  Securities fraud requires a showing of reliance.  Fraud-on-the-market therefore permits two separate and independent presumptions that benefit plaintiffs.  First, that false statements impact prices, and second, that investors subjectively believe those prices represent something when they purchase.  There’s lots of debate over what, exactly, they’re supposed to subjectively believe,  and this “subjective” component has been the subject of academic criticism, see, e.g. Donald C. Langevoort, Judgment Day for Fraud-on-the-Market: Reflections on Amgen and the Second Coming of Halliburton, 57 Ariz. L. Rev. 37 (2015); James D. Cox, Understanding Causation in Private Securities Lawsuits: Building on Amgen, 66 Vand. L. Rev. 1719 (2013); John C.P. Goldberg & Benjamin Zipursky, The Fraud on the Market Tort, 66 Vand. L. Rev. 1755 (2013), but it is real.  And it means that, for example, when plaintiffs bring 10(b) claims against underwriters and accountants for a fraudulent offering, they are told:

The security's promoter and other entities involved in the issuance, such as the underwriter, the auditor, and legal counsel—the very entities often charged with fraud—cannot be reasonably relied upon to prevent fraud.

Malack v. BDO Seidman, LLP, 617 F.3d 743 (3d Cir. 2010).  In other words, no matter the fraud’s effect on security prices, investors are not justified in believing those prices represent something significant in an inefficient market, and therefore they cannot use the fraud-on-the-market doctrine to satisfy the element of reliance.

To some extent, Section 11 claims are akin to consumer actions in this way; Section 11 claims, unlike 10(b) claims, do not require a showing of reliance, but they do require causation (with the burden of proof on defendants rather than plaintiffs).  Thus, Section 11 claims are permitted even in inefficient markets, and the theory behind them - as the legislative history makes clear - is that false statements in a registration statement are likely to influence market prices. See 78 Cong. Rec. 10186 (1934) (“When an issue of securities is proposed, a banking house will investigate the financial statement of the corporation. Based upon the statements contained in the registration statement of the corporation, a banking house will offer the securities at a certain price. Therefore, the market value is fixed by the false statement of the corporation. The individual investor relies upon the investigation made by the banker. It is fair to assume that this situation continues until such time as the corporation makes available a statement showing its earnings for 12 months. Then the market value is influenced by the statement of actual earnings and not by the statements contained in the registration statement, which deceived the underwriter or banker and the investor.”); see also William O. Douglas & George E. Bates, The Federal Securities Act of 1933, 43 Yale L. J. 171 (1933) (“the registration statement will be an important conditioner of the market. Plaintiff may be wholly ignorant of anything in the statement. But if he buys in the open market at the time he may be as much affected by the concealed untruths or the omissions as if he had read and understood the registration statement.”)

I don’t think the cases are perfectly consistent with this doctrinal lineup, but it has some explanatory power, which means in some circumstances, consumers have an easier time alleging fraud-by-price-impact than investors do.

August 13, 2022 in Ann Lipton | Permalink | Comments (0)

Friday, August 12, 2022

Tulane Law is seeking entry level and pre-tenure lateral candidates

Tulane University Law School seeks candidates in a variety of specialties including, but not limited to, Constitutional Law; Race and The Law; Racial Justice; and Critical Race Theory, for a position with a start date of July 1, 2023.

Tulane University Law School invites applications from entry-level or pre-tenure lateral candidates for one or more tenure-track faculty positions. We welcome applications from candidates with teaching and research interests in all topics, and we particularly welcome candidates who focus on constitutional law, race and the law, racial justice, and critical race theory. We especially invite applications from candidates who will enhance the diversity of the law faculty and whose research, teaching, and service have prepared them to contribute to the strong commitments Tulane has to equity, diversity, inclusion (EDI), and anti-racism. Applications and queries should be addressed, preferably via email, to committee chair, Professor Stacy Seicshnaydre sseicshn@tulane.edu. For further information about Tulane University Law School, consult: www.law.tulane.edu. Tulane University is an Equal Employment Opportunity/Affirmative Action (EEO/AA) employer committed to a non-discriminatory, diverse work and learning environment.

August 12, 2022 in Jobs | Permalink | Comments (0)

Financial Restructuring Roundtable - Call for Papers

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Financial Restructuring Roundtable
Call for Papers 

The Financial Restructuring Roundtable (formerly the West Coast Bankruptcy Roundtable) will be held in person on April 6, 2023 in New York City. Spearheaded by Tony Casey, Samir Parikh, Robert Rasmussen, and Michael Simkovic, this invitation-only event brings together practitioners, jurists, scholars, and finance industry professionals to discuss important financial restructuring and business law issues. 

The Roundtable invites the submission of papers. Selected participants will receive a $2,000 stipend and have the opportunity to workshop their papers in an intimate, collegial setting. Last year’s attendees included Ken Ayotte, Douglas Baird, Bruce Bennett, Jared Ellias, Anna Gelpern, Marshall Huebner, Ed Morrison, Mark Roe, David Skeel, and Jamie Sprayregen. 

We seek papers exploring diverse topics and will be interested in interdisciplinary perspectives. Papers will be selected through a blind review process. Scholars are invited to submit a 3 – 5 page overview of a proposed paper. Submissions may be an introduction, excerpt from a longer paper, or extended abstract. The submission should be anonymized, and – aside from general citations to the author’s previous articles – all references to the author should be removed.

Please submit proposals by October 1, 2022. Invitations will be issued via email by November 1.  Working drafts of papers must be available for circulation to participants by February 10, 2023.  

Proposals – as well as questions and concerns – should be directed to Samir Parikh at sparikh@lclark.edu

The Financial Restructuring Roundtable is hosted by the University of Chicago Law School, USC Gould School of Law, and Lewis & Clark Law School in partnership with the Penn Restructuring Institute and Sidley Austin.

August 12, 2022 in Call for Papers, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Thursday, August 11, 2022

Seton Hall Seeking Entry-Level/Lateral Faculty

Seton Hall University School of Law welcomes applications for tenure-track positions to begin July 1, 2023. Candidates must have a J.D. or equivalent degree and a record of academic excellence. Candidates should demonstrate (i) scholarly promise, (ii) the ability or potential to be an outstanding teacher and mentor who can prepare students for the practice of law, and (iii) leadership in service toward building an equitable and diverse academic community.

We will consider entry-level and lateral candidates in a variety of subject areas. We have particular teaching needs in administrative law, civil procedure, contracts/business associations, clinics, estates and trusts, evidence, and health law/FDA, but we also are interested in candidates engaged in scholarship and teaching in race and gender, employment/labor, environmental law, family law, international law, and professional responsibility.

Candidates can go here for more information and to submit an application.

Questions should be sent to Professor Timothy Glynn, Chair, Faculty Appointments Committee, at lawfacultyappointments@shu.edu.

August 11, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)

Wednesday, August 10, 2022

A CDS Market Auction-Related Development to Follow

For those BLPB readers watching the derivatives markets, specifically CDS (credit default swaps), an interesting development to be following right now is the potential auction related to the EMEA (Europe) Determinations Committee’s decision that a failure to pay credit event had occurred with respect to the Russian Federation.

Really really briefly – if you want a deeper dive into CDS and the Determinations Committees, see here – CDS are insurance-like contracts in which a protection buyer makes periodic payments akin to an insurance premium to a protection seller to financially “protect” them should a credit event (failure to pay, bankruptcy, etc.) occur on an underlying reference entity, for example, the Russian Federation.  The protection buyer may or may not have actual economic exposure to the underlying entity.   

The importance of a credit event determination is that it triggers the CDS protection seller’s payout obligation.  In general, the amount of this payout obligation is determined by an auction.  The Credit Derivatives Determinations Committees is the dispute resolution mechanism which decides whether or not a credit event has occurred and, if so, whether a settlement auction will be held.  The decision of a Committee applies market-wide.  There are five regional Committees: Americas, Australia-New Zealand, Asia (non-Japan), Japan, and EMEA (Europe).  In general, each Committee is responsible for decisions surrounding reference entities related to their region.  An independently managed subsidiary of ISDA, DC Administration Services, is secretary to each Committee.  The voting members of a full Committee consist of 10 dealer members and 5 non-dealer members.  The most recent list of Determinations Committees members is here.

On June 1, 2022, the EMEA (Europe) Determinations Committee decided “Yes” in answer to the question: “Has a Failure to Pay Credit Event occurred with respect to the Russian Federation under the 2014 Definitions and the Updated 2003 Definitions?”  Generally, a Committee votes to hold a settlement auction following its determination that a credit event has occurred.  However, the EMEA Determinations Committee decided to defer making a decision about whether to hold an auction.  As noted in its Meeting Statement of July 25, 2022: “On 9 June 2022, the EMEA DC announced that it was deferring making a decision on holding an Auction and the date of any Auction. Such deferral was as a result of the publication by OFAC [Office of Foreign Assets Control] of updated FAQs on 6 June 2022 in respect of new investment prohibitions relating to entities in the Russian Federation (further to Executive Order (E.O.) 14066, E.O. 14068, and E.O. 14071).”  On June 24, 2022, a Bloomberg news article noted “Swaps Panel Asks US Treasury for Russia Sanctions Workaround.”  On July 22, 2022, OFAC released General Licenses No. 45 “Authorizing Transactions Related to the Wind Down of Certain Financial Contracts Prohibited by Executive Order 14071” and No. 46 “Authorizing Transactions in Support of an Auction Process to Settle Certain Credit Derivative Transactions Prohibited by Executive Order 14071.”

An August 5, 2022, Determinations Committee website update (the latest as of this post) shares that the EMEA Committee has now published a “Preliminary List of Deliverable Obligations for the purposes of a potential auction” and also that “The EMEA DC continues to consider the potential impact of restrictions on settlement of the debt obligations of the Reference Entity within clearing systems, including the restrictions on transfer of debt obligations within Clearstream referenced in the DC Meeting Statement of 25 July 2022.” 

With CDS and clearing involved, this is definitely a developing story I’ll continue to follow, think about, and write on!                  

August 10, 2022 in Colleen Baker, Financial Markets | Permalink | Comments (0)

Monday, August 8, 2022

Corporations as Political Actors - SEALS 2022

Another semester teaching business associations law is just around the corner. In fact, our fall semester begins next week.  This post is dedicated to those who, like me, are prepping for and teaching that course this semester.

I was invited to participate in a discussion group entitled "Pressure on and Backlash against Corporations as Political Actors" at the 2022 Southeastern Association of Law Schools (SEALS) annual conference last week.  The description for the session is as follows:

When businesses wade into political issues like abortion, the environment, gun control, LGBTQ rights, Black Lives Matter, and international affairs, they potentially face consumer backlash and even governmental retribution. Remaining silent can also be risky, potentially upsetting other consumers and employees. And silence/inaction is not always an option: either a business remains in Russia after its invasion into Ukraine or closes its operations there, sometimes at considerable expense. This discussion group will analyze these issues from corporate, tax, policy, electoral, and constitutional law perspectives. Should businesses like Nike, McDonalds, Disney, and Ben & Jerry’s take political stances, stay out of politics altogether, focus on profits or something broader, and what are the practical and legal ramifications of these views? More broadly, what is the proper role of the corporation in society?

As you might guess from the program description, the discussion generated broadly (and, in cases, deeply) divergent viewpoints and engaging conversation.  I offer here a rough summary (constructed from my talking points) of my personal "opener" from the session for everyone to poke at.  Enjoy!

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SEALS 2022
Pressure on and Backlash against Corporations as Political Actors

My thesis is that corporations come at political engagement as a natural implication of corporate theory, policy, doctrine, and practice. My work intersects with and addresses this claim in a number of ways.

Corporate boards have complex tasks. Corporate directors’ and officers’ fiduciary duties are, in most contexts in most states, owed to the corporation. So, understanding what the corporation is—as a matter of theory, policy, legal doctrine, and law practice—is critical. And folks have different views on that . . . .

My perspective?  Corporations are aggregations of constituencies managed by a board of directors acting alone or through corporate officers to manage and serve those various constituencies. The constituencies include shareholders, debt holders, and other security holders. They include employees. They include suppliers, customers/clients, state, local, and national governments. My perspective is, perhaps, closest to the team production theory articulations in which the board is the mediating hierarch.

My views are rooted in the notion that corporate law exists to facilitate individuals in conducting business—business that is critical to our lives. They also are rooted in corporate doctrine, which hands overall management responsibility to the board of directors—corporations are managed by or under the direction of the board under all state statutes. Finally, my views are framed by 15 years of work on teams of lawyers that advised corporate boards—where we did not blindly advise directors that shareholders always come first in every board decision (noting a primary shareholder allegiance in certain contexts, including certain M&A transactions--especially those involving Delaware public corporations).

Corporate theory views the corporation in many different ways. And there are differences in state law—Delaware corporate law in the public company context is different from, e.g., Tennessee corporate law in the public and private company contexts.  Talking in generalities in these regards is not helpful to a complete understanding.

It also bears mentioning that corporations are alternatives to government in providing for us and regulating our affairs in certain social and economic settings. Notably, corporations and other business associations are primary providers of health and welfare benefits, which are supplied by governments in other countries. 

Thus, as servants to a variety of corporate constituencies and as statutory entities bearing systemic social and economic responsibility (for, e.g., employee health and welfare), corporations are natural political actors. But imv, they are not actors with a particular political viewpoint.  Any political viewpoint expressed by a corporation optimally results from the board's careful consideration of the corporation's obligations to its various constituencies.

August 8, 2022 in Conferences, Corporate Governance, Corporations, Joan Heminway | Permalink | Comments (0)

Saturday, August 6, 2022

Exculpation

Delaware recently amended its General Corporation Law to permit corporations to adopt charter provisions that would exculpate top officers, as well as directors, from damages liability associated with care violations.

The catch is, unlike with directors, officer liability can only be eliminated for direct shareholder claims – not claims brought by the corporation, including derivative claims.  In other words, the amendments aren’t there to prevent officer liability; they’re there to prevent officer liability as dictated by shareholders.  When directors decide officers should be liable – or shareholders can show directors are incapable of deciding – then officer liability may follow.

So this is a little different than the theory behind director exculpation.  Director exculpation is a protection against the threat of frivolous lawsuits, to some extent, but it also functions so directors can substantively do their jobs without fear that they will be subject to ruinous liability for well meaning mistakes.  That fear, it was posited, would deter people from wanting to be directors in the first place.

Officers, though, they aren’t exactly being protected from ruinous liability over their mistakes – the corporation/directors can still sue them for those.  Which means there’s a lot less concern that officers won’t take the job if they can be held liable.

What are these amendments doing, then?

The protections being offered are only for direct claims.  And, most of the time, direct claims only arise in one context: sale of the company.

Sure, shareholders can sometimes sue directly even for going concerns – oh look, here’s an example from Snap – but those claims are relatively rare, and even rarer still when officers would be potentially liable, and rarer still when monetary damages rather than an injunction would be on the table.  So, most of the time, and in general, the proposed amendments serve one purpose: to exculpate officers for negligence in connection with the sale of the company.

And it goes further.  Because if shareholders vote in favor of the deal, that by itself waives any fiduciary claims – except when disclosures are inadequate.

So this amendment is intended to address one specific scenario: one where officers are arguably negligent in the context of a sale of the company, and where disclosures were inadequate, in a manner that may have been relevant to voting shareholders

And these claims will apparently be blocked both when they are frivolous, and when they are meritorious. 

Of course, in order to get this protection, corporations will have to amend their charters.  Relatively easy to do pre-IPO, but requiring the assent of public shareholders post-IPO.  Leading to the question: Will they?

Why would shareholders care about this situation specifically?  As above, it’s hard to imagine they’re worried about qualified officers refusing to serve, as was the case for the original 102(b)(7) protections.  The sale of the company is an unusual event, and one where officers often have golden parachutes that offset any risk – so fear of this precise situation is unlikely to deter many officers from accepting the job in the first place.

Another possible concern is straight up litigation costs – litigation itself is expensive, sucks up the time of top management, and if we’re worried about frivolous suits or even nonfrivolous ones that won’t result in significant penalties, that might be a reason for shareholders to say the game is not worth the candle.  That, too, was likely some of the motivation for 102(b)(7) as originally drafted.

But in a sale scenario, those costs are all borne ultimately by the acquiring company.  In a cash sale, they won’t be borne by shareholders at all; in a stock sale, they’ll be borne somewhat, but even those expenses are attenuated.  And sure, you can imagine maybe the buyer will pay less if the prospect of lawsuits is out there, or insurance costs will be higher – but those possibilities are so speculative that I genuinely wonder whether shareholders would benefit from exculpation, rather than prefer to have the option of bringing nonfrivolous claims for negligently-conducted mergers (where that negligence was concealed from them in advance), knowing that litigation costs will be paid by the acquirer.

That’s particularly true when you consider that a sale of company is a final period scenario – one where corporate officers know they will no longer be subject to shareholder discipline, and therefore are most at risk of abandoning their responsibilities.

Plus, keep in mind that sometimes, cases make it past pleading on narrow theories, but discovery provides grounds for more robust ones.  Suppose keeping the negligence window open allows shareholders to sue over mergers that have a whiff of unfairness, which functionally allows further probing for more problems, which could reveal more serious defects that permit greater damages to selling shareholders?  That, too, might be valuable for shareholders of the selling company.

All of which is to say, it’s not obvious to me that the same cost-benefit analysis that applies to Original Flavor 102(b)(7) would apply to the revised version.  The specific scenarios where protections for officers are proposed are also scenarios that offer the greatest threat to shareholders, and where shareholders bear the least risk of frivolous litigation costs.  And so it’s not obvious that shareholders of publicly traded companies would be wise to approve charter amendments that exculpate officers.

What about publicly traded companies with dual-class stock?  Technically, they don’t need the assent of public shareholders to amend their charters, so they could just adopt officer-exculpation of their own accord, but (1) the public shareholders might then sue, on the grounds that this was an interested transaction intended to protect current insider/officers, and (2) dual-class companies may not be terribly worried about sale scenarios in the first place, and so have less interest in adopting these provisions.

Which leaves the IPO question: can companies simply go public with these provisions in their charters?

I mean, they can, surely, but the real question is will they pay a monetary price for doing so.  If you think IPO markets are efficient, you’d assume that if public shareholders have no use for this change mid-stream, they’d extract some kind of price for it in IPO markets, which might dissuade the adoption altogether.  I, personally, am less sanguine about the efficiency of IPO markets, however.  That said, so many companies now go public with dual-class stock, they once again may not feel they need these protections.

All of which is to say: I’m really curious to see if public companies manage to amend their charters to exculpate officers, if IPO companies adopt officer exculpation, and if there’s an obvious divergence between the two.  And, if we do see different companies adopting these things, I look forward to a financial analysis of whether they seem to affect pricing in a subsequent sale to an acquirer (who would be expected to bear the costs of shareholder litigation).

August 6, 2022 in Ann Lipton | Permalink | Comments (0)

Friday, August 5, 2022

Do Recent Calls for Censorship Respond to a Market Failure in the Marketplace of Ideas?

Back in March, I posted about a paper, "Censorship and Market Failure in the Marketplace of Ideas," that Professor Jeremy Kidd and I presented at a research roundtable on Capitalism and the Rule of Law hosted by the Law & Economics Center at George Mason University Antonin Scalia Law School. A complete version of that paper is now available here. Here is the abstract:

Use of the familiar metaphor of the exchange of ideas as a “marketplace” has historically presumed that free and uninhibited competition among ideas will reliably arrive at truth. But even the most fervent economic free-market advocates recognize the possibility of market failure. Market failure is a market characteristic (e.g., monopoly power) that precludes the maximization of consumer welfare.

The last few years have witnessed increased calls for censorship of speech and research pertaining to a variety of subjects (e.g., climate change; COVID-19 sources and treatments; and viewpoints concerning race, gender, and sexual orientation) across a variety of fora. The consistent refrain in favor of this censorship is that the spread of false or misleading information is preventing access to or distorting the truth and thereby inhibiting social progress: undermining democracy, fomenting bigotry, costing lives, and even threating the existence of the planet.

Though on their face these calls for censorship appear anti-liberal and contrary to the marketplace model, they can be made consistent with both if they are understood as a response to a market failure in the marketplace of ideas. While recent calls for censorship have not been justified expressly as a response to market failure, reframing the debate in these terms may prevent parties on both sides of the issue from engaging at cross purposes by locating the debate within an otherwise familiar model.

The Article proceeds as follows: Part I offers examples of recent calls for (and efforts at) censorship in the market of ideas concerning a variety of subjects and forums. Part II articulates a model of the marketplace of ideas that jibes with contemporary economic concepts, defines its components (e.g., sellers, buyers, intermediaries, etc.), considers the possibility of associated market failures, and highlights some common fallacies in the application of the concept of market failure more broadly. Part III explores the principal philosophical justifications for the utility of freedom of expression, focusing on the arguments articulated in John Stuart Mill’s classic, On Liberty. Part IV argues that, in light of these arguments (and taking into account contemporary critiques), the threat of false and misleading expression does not reflect market failure in the marketplace of ideas as modeled here. To the contrary, Part V argues that the ease with which recent public and private efforts at censorship have succeeded may itself reflect a market failure warranting correction—if not through legislation or the courts, then by social sanction and the court of public opinion.

August 5, 2022 in Ethics, John Anderson, Law and Economics, Philosophy | Permalink | Comments (0)

Duquesne Law Seeking Tenured/Tenure-Track Business Law Faculty

DUQUESNE UNIVERSITY SCHOOL OF LAW in Pittsburgh, PA, is seeking to hire several full-time tenured/tenure-track faculty positions to begin in the 2023-2024 academic year. We welcome applications from candidates across all areas of law, although subject areas of particular interest include: Property, Contracts, Torts, and Business Associations. Other areas of interest include: Professional Responsibility, Emerging Technologies, Intellectual Property, Health Law, and related elective course. Candidates must be available to teach in-person, although the public health situation may require occasional remote and/or hyflex teaching.

Required qualifications are a Juris Doctor from an ABA-accredited law school and superior academic credentials. Successful lateral candidates should ideally have demonstrated a commitment to excellence in teaching, scholarship, and service throughout their careers. Successful entry-level candidates should ideally demonstrate a strong potential for excellence in teaching, scholarship, and service. Prior teaching experience and/or clerking experience preferred but not required. Practice experience may provide evidence of potential for teaching excellence. Alternatively, the successful candidate may possess any equivalent combination of experience and training, which provides the knowledge, skills, and abilities to perform the essential job functions. This includes, but is not limited to the following: Commitment to the University's values of diversity, equity and inclusion, and recognition of the importance of treating each individual with dignity and respect consistent with the University's mission. Demonstrated experience with, and understanding of, the broad diversity of the University community (students, faculty, staff and others). Ability to establish and maintain effective working relationships with the University Community. Ability and willingness to contribute actively to the mission of the University and to respect the Spiritan Catholic identity of Duquesne University. The mission is implemented through a commitment to academic excellence, a spirit of service, moral and spiritual values, sensitivity to world concerns, and an ecumenical campus community, welcoming of all faiths and backgrounds.

As a condition of employment, Duquesne University requires all new employees -full-time and part-time, including adjunct faculty-to get a COVID-19 vaccine and provide proof of their vaccination upon commencement of employment. New employees requesting a religious or documented medical exemption from the vaccine must complete and submit a Duquesne University exemption request form for review and approval. To receive the appropriate exemption request form, contact hrservices@duq.edu. Employees with approved exemptions will be required to be tested on a regular basis.

APPLICATION INSTRUCTIONS:  Application review will begin immediately and will continue until the position is filled. Duquesne University uses Interfolio to collect all faculty job applications electronically. Applicants should submit a letter of intent, a curriculum vitae, and contact information for three professional references via Interfolio. The letter of intent should include comments on ability to teach in flexible environments, including online, hybrid, and in-person classroom settings. Applicants are encouraged to describe in their letter of intent how their scholarship contributes to building and supporting a diverse and inclusive community.  Applicants with questions about the position may contact the chair of the Faculty Recruitment Committee, Professor Bruce Ledewitz, at 412-396-5011 or ledewitz@duq.edu.

Duquesne University is committed to attracting, retaining, and developing a diverse faculty that reflects contemporary society, serves our academic mission and enriches our campus community. As a charter member of the Ohio, Western PA and West Virginia Higher Education Recruitment Consortium (HERC), we encourage applicants from members of underrepresented groups, and support dual-career couples.Founded in 1878 by its sponsoring religious community, the Congregation of the Holy Spirit, Duquesne University is Catholic in mission and ecumenical in spirit. Its Mission Statement commits the University to "serving God by serving students through commitment to excellence in liberal and professional education, through a profound concern for moral and spiritual values, through the maintenance of an ecumenical atmosphere open to diversity, and through service to the Church, the community, the nation and the world.” Applicants for this position should describe how they might support and contribute to the mission.  Duquesne University is Catholic in mission and ecumenical in spirit. Motivated by its Catholic and Spiritan identity, Duquesne values equality of opportunity both as an educational institution and as an employer.

https://www.duq.edu/work-at-du/careers/faculty-hiring/school-of-law/full-time-tenured/tenure-track-faculty-

August 5, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)

Thursday, August 4, 2022

New FINRA Expungement Proposal

FINRA has returned to the SEC with a new proposed rule change to address problems with its expungement system.  Although the proposal continues to use arbitration to facilitate stockbroker expungements, the new proposal makes some significant changes over prior proposals.

A bit of history may help put this in context.  Two years ago, FINRA released a proposal to reform its expungement process. I wrote two comment letters in response to that proposal, prompting FINRA to amend the proposal twice.   The twice-revised proposal was ultimately withdrawn so FINRA could study the issue before returning with another proposal.  That new proposal is now here.  I put together this chart to track some of my recommendations to see what has been adopted and what has not.

Changes to FINRA Expungement Proposal Over Time

Edwards’ Request

Initial Rulemaking

2022 Rulemaking

Abandon Arbitration-facilitated expungement

Denied

Denied

Allow Non-Party Investor Advocate  Participation

Denied

Accepted

Require Expanded Duties of Candor

 

Denied

Denied

Improve Customer Notice

Accepted

Accepted

Provide Non-Party Customers With Full Pleadings

Accepted

Accepted

Specify Attorney Fees For Successful Opposition

Denied

Denied

Allow Non-Party Customers to Access Docket Online

Accepted

Accepted

Allow Non-Party Customers to Participate in Scheduling Decisions

Accepted

Accepted

Provide Notice After Filing, Not Initial Hearing

Accepted

Accepted

Create a Time Period for Customer Notice

Accepted

Accepted

Separate Expungement Arbitrators from Ordinary Arbitrators

Denied

Denied

Specify Some Standard of Proof

Denied

Denied

Require Unanimous Expungement Awards

Denied

Accepted

The new proposal includes a major change to the process, a pathway for state regulators or their representatives to appear at the fact-finding stage.  FINRA explains the change as follows:

The current expungement process does not include a mechanism to facilitate state securities regulator involvement in expungement hearings in the DRS arbitration forum. The proposed rule change would provide a mechanism for an authorized representative to provide the state securities regulators’ position or positions on an expungement request in writing or by attending and participating in the expungement hearing in person or by video conference. This attendance and participation by an authorized representative of the state securities regulators would be limited to straight-in requests, where the panel may otherwise only hear evidence from the party requesting expungement.

This is undoubtedly a big step in the right direction.  Expungements effectively wipe a state securities regulator's memory.  By deleting information from the CRD, it removes information from the regulator's files.  State securities regulators should be able to appear at the key stage to advocate for their interests.  It's difficult to target your oversight toward brokerages with the most customer complaints if the customer complaints keep getting expunged.

My immediate concern is that I do not see a good reason for limiting this simply to straight-in requests.  Most customer cases settle.  After that, customers and their counsel have little interest in providing the panel with information.  Functionally, the only evidentiary hearing in many matters will be the expungement hearing tacked on to a settled matter.  Even within the proposal, FINRA itself has recognized that expungement hearings in settled cases are in a similar posture to straight-in requests.   It explained that although most concerns have been focused on straight-in requests, "[s]ome of these concerns, however, also apply to expungement requests filed in customer arbitrations that settle, where the panel from the customer arbitration then holds a hearing to consider the expungement request."  Given the similarity, it doesn't seem appropriate to limit state regulators to only straight-in requests.

FINRA has a tough job here to balance competing interests.  It aims to provide a way for stockbrokers to challenge complaints on their record. It also has an obligation to ensure the integrity of the CRD database.  These changes will likely result in more informed decisions by arbitrators.  Of course, given the incentive structure favoring customer apathy and broker participation, the system will likely continue to grant far too many expungements.  But it's a step in a better direction for now.

August 4, 2022 | Permalink | Comments (0)

Wednesday, August 3, 2022

Call for Papers - Fifth Conference on Law and Macroeconomics

Dear BLPB readers:

"Fifth Conference on Law and Macroeconomics
October 20-21, 2022 (virtual)

The macroeconomic instability of the 2020s continues to fuel economic, social, and political
turmoil worldwide and to recast our understanding of law and macroeconomics. The ongoing crisis
has opened up new and vitally important research opportunities. As we press on towards pandemic
recovery and confront new challenges, the Fifth Conference on Law and Macroeconomics will
focus on the law’s role in shaping a sustainable and resilient macroeconomy and on the role of
macroeconomic policy in national, regional, and global governance."

September 15, 2022 is the deadline for submitting papers for consideration.  The conference website and complete call for papers is here.

August 3, 2022 in Call for Papers, Colleen Baker, Financial Markets | Permalink | Comments (0)

Monday, August 1, 2022

Belmont University (Nashville, TN) - Assistant Professor of Business Systems and Analytics

BelmontU

We are hiring for an open Assistant Professor of Business Systems and Analytics position.

We will consider lawyers/law professors with data governance/privacy law experience/research.

I am on the hiring committee; feel free to reach out to me with any questions.

Position posting here.

August 1, 2022 in Business Associations, Business School, Haskell Murray, Intellectual Property, Jobs, Technology | Permalink | Comments (0)

LSU Law Seeks Business Law and Other Faculty

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire tenure-track or tenured faculty in a variety of areas, including, but not limited to, faculty who have expertise in business law, civil & comparative law, civil procedure, constitutional law, contracts, criminal law and procedure, evidence, family law, professional responsibility, and property. Applicants should have a J.D. from an ABA-accredited law school (foreign equivalencies will also be considered), superior academic credentials, and a demonstrable commitment to the production of quality scholarship, as well as a commitment to outstanding teaching.

Louisiana State University is an R1 land, sea, and space-grant university with a footprint across the state of Louisiana. It is one of only eight universities in the nation with a law school, dental school, medical school, veterinary school, and an elite MBA program. The LSU Law Center, the flagship state law school of Louisiana, is part of LSU A&M’s campus, located in the state capital, Baton Rouge. See more about LSU, including links to the area, at https://lsu.edu/visit/index.php.

LSU is committed to providing equal opportunity for all qualified persons in admission to, participation in, or employment in the programs and activities which the University operates without regard to race, creed, color, marital status, sexual orientation, gender identity, gender expression, religion, sex, national origin, age, mental or physical disability, or veteran’s status. LSU is committed to diversity and is an equal opportunity/ equal access employer. LSU believes diversity, equity, and inclusion enrich the educational experience of our students, faculty, and staff, and are necessary to prepare all people to thrive personally and professionally in a global society. To learn more about how LSU is committed to diversity and inclusivity, please see LSU’s Diversity Statement and Roadmap.

Please note that applicants must apply through the LSU Career Opportunities website. Only those persons who apply online will be considered for employment. Please apply using the following link: (https://lsu.wd1.myworkdayjobs.com/LSU/job/0400-Hebert-Law-Center/Assistant-Professor-of-Law-Associate-Professor-of-Law-Professor-of-Law_R00069560). Applications should include a letter of interest, resume including a list of three references, research agenda, and, if available, teaching evaluations.  

Questions may be directed by email to Ms. Pamela Hancock, the LSU Law Center’s Coordinator of Administration, who assists the Faculty Appointments Committee (phancock@lsu.edu).

August 1, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)

Sunday, July 31, 2022

DePaul Law: Business Law Hiring Interests

DePaul University College of Law invites applications from entry-level candidates for a tenure-track position expected to begin July 1, 2023. We have particular interest in the areas of Business Law, Contracts, Tax, Commercial Law, and Antitrust. 

DePaul Law is committed to improving society by educating purpose-driven lawyers who will serve their clients, the legal profession, and the broader community in ways that enhance access to justice and promote equitable policies and processes. We enthusiastically encourage applicants who would enrich the diversity of our community to apply. To learn more about us, please visit https://law.depaul.edu/Pages/default.aspx

Required Qualifications:

All candidates must hold a J.D. or equivalent degree, possess excellent academic credentials, and demonstrate potential to be an outstanding scholar and teacher.

Special Instructions to Applicants:

Interested candidates should apply online. Required materials include a cover letter, curriculum vitae, list of references, research statement, diverse learning environment statement, and writing sample. Please direct any questions about the position to mhelvest@depaul.edu.

July 31, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)

Saturday, July 30, 2022

WFSU on Gov. DeSantis taking aim at 'woke' ideology in Florida's investments

I’m currently working on a piece on anti-ESG legislation for our upcoming BLPB Symposium. According to The Heartland Institute (here), as of April 5, 2022, twenty-eight states have initiated some form of “anti-ESG action.” So, recent news of Florida Governor Ron DeSantis pushing for further action in this area caught my eye. Here is an excerpt from relevant coverage by WFSU (go read the full piece here):

DeSantis plans to have the State Board of Administration, which oversees investments, direct pension-fund managers against “using political factors when investing the state's money.” So-called ESG policies have drawn criticism from Republicans across the country…. Renner, who will become House speaker after the November elections, called the corporate practices a national-security issue and a pocketbook issue. "What we have is these large corporations and banks that are pursuing a woke agenda that is artificially driving up our costs in energy,” Renner said. “There's a reason why we haven't built new refineries. There's a reason why we're not drilling for oil even though we have more reserves in this country than any other place in the world, it’s because the banks and this woke agenda is choking off their ability to get financing to do that.” DeSantis said ESG is a being used by “upper echelons of our society” to impose a “woke ideology on the economy.” “We don't want to see the economy further politicized, and we want to push back against the politicization that's already happened,” DeSantis said. “Our investment of funds should be for the best interest of our beneficiaries here in the state of Florida, it should not be a vehicle to impose an ideological agenda.”

July 30, 2022 in Stefan J. Padfield | Permalink | Comments (1)

Twitter and Tea Leaves

As the world watches this unfold, I figured I’d blog this week to make a point I’ve expressed in other spaces (Twitter, etc), but I haven’t articulated here.

Where we are in this saga:  Musk sent a letter to Twitter on July 8, publicly filed with the SEC, purporting to terminate the merger agreement due to what he claimed were three contract breaches by Twitter.  First, Twitter falsely represented the amount of spam/bots on the platform; second, Twitter failed to provide information to Musk that was necessary to consummate the transaction (i.e., information about the amount of spam on the platform); third, Twitter failed to operate in the ordinary course by instituting a hiring freeze and laying off some employees. 

Twitter filed a lawsuit against Musk on July 12 seeking specific performance, arguing that it had not breached the agreement and that Musk, himself, was in breach, by failing to use his best efforts to consummate the deal as he promised to do.  (Links to case filings, by the way, are taken from this handy archive set up by Andrew Jennings.)

Musk filed an answer with counterclaims yesterday, but it’s under seal, so we’ll have to wait for a public version before we get a more complete account from him, but – at least based on what we know now – the dispute in this case is about who breached first. 

As has been widely reported, Musk’s arguments appear quite weak (with all due caveats about facts that may come out in the future, based solely on what has been publicly disclosed up until now, etc etc).  Stephen Bainbridge has a good break down here, but quickly:

Let’s just get the ordinary course thing out of the way – at least in his opposition to Twitter’s motion to expedite, Musk didn’t seem to be pressing on it very hard, and the fact is, the merger agreement has very seller-friendly language in which Twitter only promised to use “commercially reasonable efforts to conduct the business of the Company and its Subsidiaries in the ordinary course of business.”  Given the state of the economy and the industry, a hiring freeze and layoffs seems consistent with commercial reasonableness, and the Delaware Supreme Court has already suggested that what is “commercially reasonable” is gauged by references to peers, so it’s unlikely this has legs.

Which means the case is about the spam.  Did Twitter misstate its spam?  Or did it deny Musk information he was entitled to receive about spam?

Now, even if Twitter did misrepresent the amount of spam on the platform, that alone is not grounds to walk away; Musk would further have to show either that the misrepresentation was intentional, and that he relied on it (the common law rule about fraud in contracting), or that the misrepresentation (whether or not intentional) was so egregious that it caused a material adverse effect (which is the standard set forth in the merger agreement), and so far, there’s no evidence of any of that. 

But there’s also a good argument that Twitter did not make any false representations about spam in the first place, and Musk cannot show that it did.  There’s nothing in the merger agreement about spam; what the merger agreement says is that Twitter’s SEC filings are accurate.  Here’s what those SEC filings say:

There are a number of false or spam accounts in existence on our platform. We have performed an internal review of a sample of accounts and estimate that the average of false or spam accounts during the fourth quarter of 2021 represented fewer than 5% of our mDAU [monetizable daily active users] during the quarter. The false or spam accounts for a period represents the average of false or spam accounts in the samples during each monthly analysis period during the quarter. In making this determination, we applied significant judgment, so our estimation of false or spam accounts may not accurately represent the actual number of such accounts, and the actual number of false or spam accounts could be higher than we have estimated. We are continually seeking to improve our ability to estimate the total number of spam accounts and eliminate them from the calculation of our mDAU, and have made improvements in our spam detection capabilities that have resulted in the suspension of a large number of spam, malicious automation, and fake accounts. We intend to continue to make such improvements. After we determine an account is spam, malicious automation, or fake, we stop counting it in our mDAU, or other related metrics.  We also treat multiple accounts held by a single person or organization as multiple mDAU because we permit people and organizations to have more than one account. Additionally, some accounts used by organizations are used by many people within the organization. As such, the calculations of our mDAU may not accurately reflect the actual number of people or organizations using our platform.

Notice here that Twitter is not making a specific representation about spam or bots; it’s representing that it conducts an analysis, that analysis reached a result, and that result could be wrong.  Even if Musk got the data he wants, conducted his own analysis, and reached a different result, that still would not show that Twitter’s actual representation was false

(The July 8 letter also alleged that Twitter continued to include accounts identified as spam in the mDAU despite claims not to do so, but I don’t see that allegation repeated in Musk’s Chancery filings so far. We’ll see if that pops up again in the answer).

As for Musk’s rights to information, he’s only entitled to information “for any reasonable business purpose related to the consummation of the transactions,” and even that with lots of caveats (Twitter can deny information if it would be disruptive, cause competitive harm, etc).  And his demand for increasingly detailed spam information – Twitter is already providing him with reams of data – hardly seems like it falls in that category.  (As Twitter argued in its complaint at ¶96, he wants this information to find an excuse to blow up the deal, not to close it).

In Delaware Chancery, the parties first sparred over a trial date – Musk wanted February, Twitter wanted September – and Chancellor McCormick decided that a five-day trial would be held in October.

Next, the parties sparred over the exact dates in October (Musk wanted the week of October 17, Twitter preferred October 10 but was amenable to October 17 with assurances that the trial length would remain 5 days), and McCormick ordered a trial from October 17-21.

But the important thing to note – and this is the reason I’m posting – is that the significance of these skirmishes is not the trial date per se.  The significance is what the trial is about.  Musk claims he needs a prolonged schedule in order to obtain data from Twitter and employ significant computing power/expertise to analyze it and identify spam.  Twitter, by contrast, claims that no spam information is even necessary because it never made any representations about spam, and therefore this can all be resolved quickly.  As Twitter’s counsel put it in a scheduling hearing on July 19, “When the Court consults page 5 of Twitter's 10-K, it will see that it says … Twitter has a system for monitoring false or spam accounts. It is a system that requires judgment. It yields the outcome that fewer than 5 percent of users are false or spam accounts, but it may well be wrong. The number, the disclosure expressly says, could be higher.  That is what we are testing, Your Honor. And this does not require a recreation of all things known to humanity.”

And all this was also teed up in the parties’ arguments about trial dates; even though there’s very little difference between October 10 and October 17, both of them were simultaneously shoehorning in arguments over the scope of discovery.  Musk accused Twitter of refusing to produce voluminous amounts of raw data; Twitter responded that Musk’s requests were “irrelevant to Twitter’s complaint and Musk’s asserted bases for attempting to terminate. The vast amount of data related to Twitter’s user activity and platform that Musk seeks has no apparent connection to any term of the merger agreement.”

McCormick was only being asked to set a schedule, but the subtext was, that schedule must be informed by the scope of discovery.  McCormick clearly understood that, because in her order, she stated she had not “resolve[d] any specific discovery disputes, including the propriety of any requests for large data sets,” though she did limit the parties to 25 interrogatories (Twitter claims that Musk has already served 68 interrogatories, see ¶17).  And, recognizing the sensitivity of discovery issues in this case, McCormick set out a procedure for the parties to try to address any discovery disputes before bringing them to the court, involving each side designating a Delaware lawyer to review its side’s privilege logs, and designating a lawyer who will serve as the party’s “Discovery Liaison.”  Per The Chancery Daily, this procedure has been used before in a case with significant discovery disputes.

So McCormick has avoided weighing in on the scope of discovery thus far, without much of a record or briefing before her, though she has tilted towards Twitter’s view of the matter.  Sooner or later, though, McCormick will likely have to decide a discovery motion regarding exactly the kind of data Twitter is required to produce.  And while discovery disputes are usually rather ho-hum matters for those of us watching from the cheap seats, in this case, discovery could, as a practical matter, end the case.  Twitter can and will argue that it need not produce extensive datasets because Musk has not demonstrated that the amount of spam on the platform is relevant to the merger agreement (or at the very least, because Musk already has the information he needs), and if McCormick agrees, she’s functionally cut the legs out from under Musk’s entire bases for claiming Twitter breached first.  And while I wouldn’t read too much into a decision by McCormick that allows Musk some leeway on this, if she orders production of large amounts of new data, that suggests she thinks there may be some merit to Musk’s claims.  (Or, at least, that she wants publicly to be seen as fair, and not provide a basis for Supreme Court reversal, in a high profile case. Hard to say.)

So.  That’s my point.  It’s not about the dates; it’s about how much this trial really will test Twitter’s spam counts.  There’s a plausible path for Twitter to win long before trial begins, and schedules – and more importantly, discovery disputes – can be viewed through that lens. 

July 30, 2022 in Ann Lipton | Permalink | Comments (0)

Friday, July 29, 2022

Practical Tips for Teaching or Training Adult Learners

Millions of law school graduates around the US just took the bar exam. Others are preparing to enter colleges and graduates schools in a few weeks. How will these respective groups do? While a lot depends on how much and how well they study, a large part of their success or failure may depend on how they've been taught. I recently posted about how adults learn and what the research says we should do differently. In this post, I'll show how I used some of the best practices in the last ten days when I taught forty foreign lawyers from around the world  and thirty college students in separate summer courses offered by the University of Miami as well as nine Latin American lawyers who were taking courses in business law from a Panamanian school. I taught these disparate groups about ESG, disclosures, and human rights. With each of the cohorts, I conducted a simulation where I divided them into groups to prioritize issues based on whether they were a CEO, an investor, a consumer, the head of an NGO, and for the US college students, I added the roles of a member of Congress or influencer. In a future post, I will discuss how the groups prioritized the issues based on their demographics. Fascinating stuff. 

Depending on what you read, there are six key principles related to adult learning:

1. It seems obvious, but adults need to know why they should learn something. Children learn because they are primed to listen to authority figures. Too often in law school or corporate training, there's no correlation to what they learn and what they actually do. When I taught the two groups of foreign lawyers, I talked about the reality and the hype about ESG and how the topic could arise in their practices with specific examples. When I spoke to the college students who were considering law school, I focused on their roles and responsibilities as current consumers and as the future investors, legislators, and heads of NGOs. Same powerpoint but different emphasis.

2. Adults are self-directed. Under one definition, "self-directed learning describes a process by which individuals take the initiative, with or without the assistance of others, in diagnosing their learning needs, formulating learning goals, identifying human and material resources for learning, choosing and implementing appropriate learning strategies, and evaluating learning outcomes." This may seem radical because many of my colleagues complain that today's students need a lot of hand holding and spoon feeding, and I agree to some extent. But I also think that we don't give students enough credit and we underestimate them. I developed my curriculum for the practicing lawyers but I also asked what they wanted to learn and what would be most useful for them. I only had a few hours with them, so I wasn't able to explore this much as I would have. But in some of my traditional courses at the law school and when I train adults in other contexts, I often give a choice of the exam type and topic. This ensures that they will submit a work product that they are passionate about. At the end of my traditional classes at the law school, I also ask them to evaluate themselves and me based on the learning outcomes I established at the beginning of the semester. They tend to be brutally honest about whether they've taken responsibility for their own learning.

3. Adults filter what we tell them through their life experiences. In my traditional classes, I send out a survey to every student before the semester starts so that I understand their backgrounds, perspectives, and what's important to them. I often pick hypotheticals in class that directly address what I've learned about them through the surveys so it resonates much more clearly for them. With my three groups this week, I didn't have the chance to survey them but I knew where they were all from and used examples from their countries of origin, when I could. When the college students entered the Zoom room, I asked them to tell me why they picked this class. This helped me understand their perspectives. I also picked up on some of their comments during discussion and used those data points to pivot quickly when needed. It would have been easy to focus on my prepared lecture. But what does ESG mean to a lawyer in Bolivia, when that's not a priority? College students quickly grasped the context of socially responsible investing, so I spent more time there than on the Equator Principles, for example. The cultural and generational differences were particularly relevant when talking about the responsibility of tech companies from a human rights perspective. The lawyers and students from authoritarian regimes looked at social media and the power to influence the masses in one way, while the college students saw the issues differently, and focused more on the mental health issues affecting their peers. Stay tuned for a future post on this, including interesting discussion on whether Congress should repeal Section 230.

4. Adults become ready to learn only when they see how what they are learning applies to what they need to do at work and at home. With the foreign lawyers, I focused on how their clients could have to participate in due diligence or disclosure as part of a request from a company higher up in the supply chain. I focused on reputational issues with the lawyers who worked at larger companies. College students don't deal with supply chains on a regular basis so I spent more time focusing on their role as consumers and their participation in boycotts at their universities and their activism on campus and how that does or does not affect what companies do. 

5. Adults need a task-centered or problem-focused approach to learning. I had to lecture to impart the information, but with each group, they learned by doing. I had 12 hours with the Latin American lawyers so to test them on their understanding of US business entities, instead of having them complete a multiple choice quiz, I asked them to interview me as a prospective client and develop a memo to me related providing the advice, which is what they would do  in practice. They, with the other groups, also prioritized the issues discussed above from their assigned roles as CEO, NGO head, institutional investor, or consumer. When I teach my compliance course to law students, they draft policies, hold simulated board meetings, and present (fake) CLEs or trainings. My business and human rights students  have the option to draft national action plans, write case studies on companies that they love or hate, or write develop recommendations for governments for their home country. Students are much more likely to engage with the material and remember it when they feel like they are solving a real problem rather than a hypothetical.

6. Adults need extrinsic and intrinsic rewards. Everyone I taught this week will get some sort of certificate of completion. But they all chose to take these courses and those who weren't part of the UM program either self paid or were reimbursed by their employers. None of them were required to attend the classes, unlike those in elementary and high school. When students choose a course of study and learn something relevant, that's even more important than the certificate or diploma. 

I hope this helps some of you getting ready for the upcoming semester. Enjoy what's left of the summer, and if you try any of these suggestions or have some of your own, please leave a comment.

 

July 29, 2022 in Business Associations, Corporate Governance, Corporations, CSR, Current Affairs, Financial Markets, Human Rights, International Business, Law School, Lawyering, LLCs, M&A, Marcia Narine Weldon, Teaching | Permalink | Comments (0)

Thursday, July 28, 2022

New Legislation To Support Investor Clinics Introduced

A vanishingly small cadre of investor protection clinics now exist at law schools across the United States.  Most are on the east coast with the greatest concentration of clinics in and around New York City.  Pace’s Jill Gross wrote the leading history of the rise and possible extinction of these clinics. The major problem has always been funding.  I ran one at Michigan State before taking my first tenure-track teaching post.  We recovered hundreds of thousands for ordinary people.  It closed after I left for lack of funding.

In 2018, the SEC's Investor Advisory Committee formally recommended financial support for investor clinics.  Four years later, help sits just over the horizon.  Earlier today, Nevada's Senator Cortez Masto introduced legislation to create a sustainable funding mechanism for investor protection clinics.  Similar legislation has also been introduced in the House by Illinois Congressman Mike Quigley.

The proposed legislation would allow the SEC to administer grants roughly similar to what the IRS already does for tax clinics.  This would create sustainable support for these clinics and ensure that services remain available.

A few years back, I ran an investor clinic at UNLV.  We had some notable successes, including this $40,000 win over Wells Fargo.  But we were not able to keep the clinic open at UNLV because we lacked the resources to run it on a year round basis.  The law school has embraced a hybrid model.  Many semesters, I'll teach securities regulation, business organizations, or professional responsibility.  Other semesters the law school needs me to provide some kind of clinical course for our students.  As securities arbitration cases generally take about eighteen months to resolve, they don't fit neatly into a program that starts and stops with semesters.  Doing this work requires the ability to carry cases on an ongoing basis.

If the legislation passes, we'd be able to staff up and help so many more people.  Some of the work involves bringing claims through FINRA arbitration.  But that isn't all that these clinics do.  Often, investors have losses and want help understanding what happened.  These clinics provide a valuable resource for people to figure out whether they have a claim.

July 28, 2022 | Permalink | Comments (0)

Wednesday, July 27, 2022

Tomorrow!! Are SPACs Illegal Investment Funds?

Tomorrow, the Wharton Initiative on Financial Policy and Regulation is hosting a webinar entitled, Are SPACs Illegal Investment Funds?  I encourage you to register (here) and decide what you think about this issue!

Wharton Spac Event Social Media

 

July 27, 2022 in Colleen Baker, Financial Markets | Permalink | Comments (0)

Kansas Law Hiring Business Law Faculty

The University of Kansas School of Law invites applications for two tenure-track, associate professor positions to begin fall 2023.  We invite entry-level and junior-lateral candidates in the areas of business, corporate, finance, and transactional law for the first position and entry-level candidates from all subject areas for the second position.  Qualified candidates who will contribute to the diversity of our law school community, including a diversity of scholarly approaches, are especially encouraged to apply.
 
Applicants must possess a J.D. from an accredited U.S. law school or equivalent degree, and must demonstrate strong scholarly potential and a commitment to excellence in teaching.  The School actively seeks applications from members of groups that are underrepresented in higher education.

Review of applications begins August 25 and will continue until the positions are filled. Initial interviews will be conducted via Zoom. We will review candidate materials posted in the AALS Faculty Appointments Register (FAR), and also invite applications from candidates not participating in the FAR. Applications must be submitted online:  

and should include a cover letter, a CV/resume, a detailed statement of research interests/future plans, a statement related to diversity, a writing sample, and the names of three references. Materials such as teaching evaluations or additional samples of scholarly work may be requested of candidates at a later date. For fullest consideration, candidates not participating in the FAR should apply by August 25, 2022.
 
Contact:  Professor Kyle Velte, Chair, Appointments Committee, kvelte@ku.edu  

KU is an EO/AAE, full policy at http://policy.ku.edu/IOA/nondiscrimination

July 27, 2022 in Joan Heminway, Jobs | Permalink | Comments (0)