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Thursday, August 31, 2017

ICYMI: #corpgov Midweek Roundup (August 31, 2017)

By Stefan J. Padfield

August 31, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Does Uber Need to Learn from Walmart about the FCPA?

By Marcia Narine Weldon

Uber has a new CEO. Perhaps his first task should be to require one of his legal or compliance staff to attend the FCPA conference at Texas A & M in October given the new reports of an alleged DOJ investigation.. I might have some advice, but Uber needs to hear the lessons learned from Walmart, who will be sending its Chief Compliance Officer. Thanks to FCPA expert, Mike Koehler, aka the FCPA Professor, for inviting me. Mike has done some great blogging about the Walmart case (FYI- the company has reported spending $865 million on fees related to the FCPA and compliance-related costs). Details are below:

 

THE F​CPA TURNS 40:
AN ASSESSMENT OF FCPA ENFORCEMENT POLICIES AND PROCEDURES

FCPA ConferenceThursday, October 12, 2017
Texas A&M University School of Law
Fort Worth, Texas

This conference brings together Foreign Corrupt Practices Act enforcement officials, experienced FCPA practitioners, and leading FCPA academics and scholars to discuss the many legal and policy issues relevant to the current FCPA enforcement and compliance landscape.

Register here

AGENDA

[Click here to download agenda pdf]

Registration, 8:30 a.m.

Morning Session, 9:00 a.m. to Noon

FCPA Legal and Policy Issues

  • Daniel Chow, Professor, Ohio State School of Law
    China’s Crackdown on Government Corruption and the FCPA
  • Mike Koehler, Professor, Southern Illinois School of Law
    Has the FCPA Been Successful In Achieving Its Objectives?
  • Peter Reilly, Associate Professor, Texas A&M School of Law
    The Fokker Circuit Court Opinion and Deferred Prosecution of FCPA Matters
  • Juliet Sorensen, Professor, Northwestern School of Law
    The Phenomenon of an Outsize Number of Male Defendants Charged with Federal Crimes of Corruption
  • Marcia Narine Weldon, Professor, Univ. of Miami School of Law
    What the U.S. Can Learn from Enforcement in Other Jurisdictions and What Other Jurisdictions Can Learn from Us

Luncheon, Noon to 1:00 p.m.

Afternoon Session, 1:00 to 3:00 p.m.

FCPA Conference JorgensenKeynote address

(1:00 to 2:00 p.m.)

  • Jay Jorgensen
    Executive Vice President, Global Chief Ethics and Compliance Officer, Walmart

Follow-up panel (2:00 to 3:00 p.m.):

FCPA Enforcement and Compliance Landscape: Past, Present, and Future

  • Kit Addleman, Attorney, Haynes and Boone LLP, Dallas and Fort Worth Offices
  • Jason Lewis, Attorney, Greenberg Traurig LLP, Dallas Office

CLE Credit for Attendees

All attendees are eligible for ​​5 hours of CLE credit. The morning session offers ​3 CLE credits. The afternoon session offers 2 CLE credits, one of which will be an Ethics credit. Forms will be provided to attendees at the conference. CLE ​credit is free for all attendees.
 
 
 

August 31, 2017 in Compliance, Conferences, Corporate Governance, Corporations, Current Affairs, Ethics, Marcia Narine Weldon, White Collar Crime | Permalink | Comments (0)

Tuesday, August 29, 2017

More Corporate LLCs and Phantom Veil Piercing

By Joshua Fershee

And so it continues:

In a recent case in the United States District Court, District of Columbia, a court messes up the entity (referring to one of the parties as “Howard Town Center Developer, LLC, is a limited liability corporation (‘LLC’)") and also does a fine job of improperly stating (or really, failing to state) the law for veil piercing. 

I took the initiative to pull the initial complaint and the answer to see if either of the parties were responsible for calling the LLC a corporation. Both sides properly referred to the LLC as a “limited liability company,” so it appears the corporation reference is a court-created issue.

In the case, a property developer brought action to require a university landowner to reinstate a ground lease and development agreement between developer and university, after the university sent notices of termination. The University counterclaimed to recover unpaid rent. The court determined, among other things, that the university was entitled to the damages it sought of $1,475,000 for unpaid rents and to attorney fees related to the developer's breach of a ground lease and development agreement. But the opinion doesn’t stop there.

It is quite clear that the developer LLC does not have the funds to pay the judgment, so the question of whether the LLC’s veil could be pierced was also raised.  The court, I think properly, determined that “a targeted asset or individual must be named before veil-piercing may be considered.” Howard Town Ctr. Developer, LLC v. Howard U., CV 1075 (BAH), 2017 WL 3493081, at *56 (D.D.C. Aug. 14, 2017). The court continued: “The University should not lament, nor the Developer celebrate, that conclusion, however, on the erroneous assumption that the University has waived its right to veil-piercing in this matter.” Id.  

The court then determined that, because of “considerations of justice and equity,” the university could later seek a veil-piercing action if it were unable to satisfy its judgment. “Any such action will be fairly straightforward given the instant decision, including the Court's observations regarding the inadequacy of the Developer's capitalization . . . and the University may then be entitled to the additional discovery it presently seeks.” Id.

 Wow.  That’s some heavy dicta.  First, the court never states what the rule is for veil piercing an LLC, so it is a pretty bold assertion to say veil-piercing will be “straightforward.” Is the sole test adequate capitalization? What does that mean?  And what is that test? Well, the court gives us an explanation in footnote 22:

The Developer's status as an inadequately capitalized shell company is an ongoing demonstration of bad faith. LLCs are a legitimate corporate form, and the societal benefits of such entities are significant. Dickson testified that the use of such entities in transactions like this one is “typical[ ],” explaining that “single-asset entities are established as borrowers” so that “the borrower[ ] contains one asset,” the advantage from a “liability standpoint” being that “on a transaction of this size, the asset couldn't be pulled into bankruptcy.” Trial Tr. Day 7 AM at 49:25–50:7. Yet, even a single-asset entity must be capitalized to the extent necessary to satisfy its obligations to the project it was created to support. See Lawlor v. District of Columbia, 758 A.2d 964, 975 (D.C. 2000) (noting inadequate capitalization as factor in determining whether a given entity's corporate form should be respected). Consequently, abuse of the corporate form to render a company judgment-proof is impermissible and reflects bad faith.

Um, no.  First, the LLC is not a corporate form. And an entity not being able to pay its debts is not, in and of itself, a showing of bad faith.  Otherwise, what’s the point of limited liability? The court seems to think that being judgment proof because of a lack of funds is not allowed. But it is specifically allowed. If there is fraud or deception, that is not allowed. But an inability to pay the bills is not, alone, at all improper.  It is unfortunate, and perhaps awful, but it is not improper. 

Ultimately, it may be that veil piercing could be justified under DC law, but first, we’d need to know what that law is.  And it should be clear that it is LLC-veil-piercing law that is to be applied, and not the “corporate” veil piercing this court has apparently relied upon.  Once again, I will repeat my call for courts to state specifically the law (and the test) they are applying in LLC-veil-piercing cases, explain why the factors of the test are appropriate in the LLC setting, and then apply that test. 

Instead, the court suggests that veil piercing is essentially inevitable, which could have a strong role in forcing a settlement. This language amounts to phantom veil piercing.  The court never stated a veil-piercing test, never ran the test, and yet, there it is: the specter of a pierced limited liability veil. 

The court seemed frustrated with the developer, and that may be well founded.  Maybe the developer committed fraud. Maybe the developer and other representatives made binding promises that should make them all guarantors. The case also suggests that there may be an argument for enterprise liability among some of the entities mentioned.  And those are all issues that should have been considered.  But none of them are veil piercing claims, and if the court is going to go down that road, the court needs to be more precise to ensure justice and equity prevail.  

August 29, 2017 in Corporations, Joshua P. Fershee, Lawyering, LLCs | Permalink | Comments (1)

Monday, August 28, 2017

"Business Law: Connecting the Threads" - The First (Annual?) BLPB Conference

By joanheminway

I am excited and proud to make the following announcement about a cool (!) upcoming program being held on Saturday, September 16 at UT Law in Knoxville:

The University of Tennessee College of Law will host a conference and CLE program that will focus on trends in business law. Discussions will take place throughout the day featuring panel discussions that center upon business law scholarship, teaching and law practice.

Topics will include business transaction diagramming; risks posed by social enterprise enabling statutes; fiduciary obligations and mutual fund voting; judicial dissolution in LLCs; Tennessee for-profit benefit corporation law and reporting; corporate personality theory in determining the shareholder wealth maximization norm; and professional responsibility issues for business lawyers in the current, evolving business environment.

The presenters for the program panels are . . . well . . . us!  All of the BLPB editors and contributing editors, except Anne Tucker (we'll miss you, Anne!), are coming to Knoxville to share current work with each other and conference attendees.  Each editor will anchor a panel that also will include a faculty and student discussant.  The BLPB blogger papers and the discussants' written commentaries will all be published in a future issue of our business law journal, Transactions: The Tennessee Journal of Business Law.  We also have secured one of our former visiting professors as a lunch-time speaker.

UT Law looks forward to hosting this event.  For more information, you can look here.  I expect some of us will post on the conference and the conference papers at a later date.

BLPBConferenceLogo

 

August 28, 2017 in Ann Lipton, Conferences, Haskell Murray, Joan Heminway, Joshua P. Fershee, Marcia Narine Weldon, Stefan J. Padfield | Permalink | Comments (0)

Sunday, August 27, 2017

ICYMI: #corpgov Weekend Roundup (August 27, 2017)

By Stefan J. Padfield

August 27, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Saturday, August 26, 2017

Activists and Women CEOs

By Ann Lipton

As Anne Tucker pointed out, there was a flurry of news items a couple of years ago suggesting that hedge fund activists were more likely to target female CEOs over male CEOs.

Well, someone’s now done a systematic study of the issue and confirmed – yes!  That is a thing that happens!

In their paper, Do Activist Hedge Funds Target Female CEOs? The Role of CEO Gender in Hedge Fund Activism, authors Bill Francis, Victor Shen, and Qiang Wu control for a variety of firm characteristics, including the “glass cliff” (that women are more likely to be elevated to CEO in times of turbulence), and still find that the presence of a woman CEO makes it more likely that a company will be targeted by activists.  They attribute the difference to a couple of things.  First, they find that women CEOs respond differently to activist attacks: instead of going into a defensive posture, they are more likely to cooperate.  As a result, activists seek cooperative measures like board seats, and settle without proxy fights.  The more cooperative posture of women CEOs makes it easier – and thus more profitable – for activists to target them.  This finding, they conclude, is consistent with other findings that the market does not respond as positively to activist intervention when the firm uses aggressive defensive tactics, unless the activist further increases the hostilities with even more expensive and aggressive interventions.

The study’s authors reject the notion that pure sexism is at work, because (they find) the market responds to activism at women-led companies with larger abnormal returns both in the short term and over the course of a year.  According to the authors, it is implausible that the market, as well as the activists, would be misled by pure gender bias for such a prolonged period.

On this point, I’m a little more skeptical.  For one thing, if I’m reading this correctly, their long-term findings of higher abnormal returns for women-led companies are less consistent across different specifications than the short-term findings.  Plus, I think it’s entirely plausible that even if the activists themselves are not “motivated” in some subjective sense by gender bias, they suspect that the other investors on whose cooperation they rely may be less trustful of women CEOs.  So they know that if they target those companies, other investors will respond more positively.  Indeed, the authors find that activists take smaller positions in women-led companies than men-led ones, suggesting that the activists anticipate more cooperation from the existing shareholder base.

That said, I certainly find it plausible that part of activists’ motivation stems from differential responses of men and women CEOs, so there’s a great irony in the fact that women CEO responses end up adding value to the company, yet at the same time – as the study’s authors find – women end up suffering more for it, with a greater loss in compensation and higher turnover than men CEOs who find themselves targeted, even though women begin with less compensation than their men counterparts.

In addition to having interesting implications on its own terms, this study I think can be viewed as part of a larger emerging literature on the problem of customer or end-user discrimination.  As Kate Bartlett and Mitu Gulati discuss in their essay on the subject, we have a variety of laws that prevent, say, employers from discriminating against employees, and businesses from discriminating against customers, but we don’t have laws that work in the opposite direction.  For the most part, buyers/customers can discriminate with impunity (with limited exceptions, like programs funded by the federal government) – which in practice means that we have real discrimination problems in the gig economy.  Airbnb, for example, has been trying to address discrimination by homeowners who will not rent to people of color, and people of color who sell products on eBay may receive less than white sellers (.pdf).  One article reports that women gig economy workers are used to experiencing harassment by customers, and – because they are considered to be independent contractors – don’t view themselves as having many options. Of course, this is not just a gig economy phenomenon; among other things, medical patients may not want to be treated by nonwhite doctors (here is an extreme example).

And recently, there have been a spate of articles about discrimination by venture capitalists, who are much less likely to fund women-led startups and, apparently, have engaged in a pattern of serious sexual harassment against women entrepreneurs.  Activists who target women CEOs seem to be another data point.

The reality may be that there are forms of discrimination that the law can’t reach, but as the Bartlett and Gulati article concludes, we might start to seriously think about areas where legal intervention could be a practical, if partial, solution.

August 26, 2017 in Ann Lipton | Permalink | Comments (0)

Friday, August 25, 2017

Washburn Law Tenured/Tenure-Track Opening: Commercial Law

By joanheminway

From Friend-of-the-BLPB Andrea Boyack:

WASHBURN UNIVERSITY SCHOOL OF LAW invites applications for one or possibly two tenure-track faculty positions commencing in the 2018-19 academic year.  We are particularly interested in secured transactions, payment systems, and other commercial law courses.  We would also be interested in candidates who could also expand our tax law offerings, in addition to those commercial law courses.The Washburn campus is located in the heart of Topeka, Kansas, blocks from the state capitol.  Topeka has been named a Top Ten City in Kiplinger’s magazine.  Topeka features affordable housing with beautiful, historic neighborhoods filled with well-maintained parks, and is the home of the Brown v. Board of Education historical site.

Washburn Law School is committed to diversity in its faculty and encourages applicants whose backgrounds will enrich the law school. Candidates should possess a JD degree from an ABA accredited law school; a distinguished academic record; and, a record of, or demonstrated potential for, scholarly production.

Review of applications will begin immediately, continuing until the position is filled.  (All faculty appointments are contingent upon funding.)  Interested candidates should send a resume, listing three references, and a cover letter.  Contact: Professor Mary Ramirez, Chair, Faculty Recruitment Committee, Washburn University School of Law, 1700 College Avenue, Topeka, Kansas, 66621.  E-mail: [email protected]

August 25, 2017 in Joan Heminway, Jobs | Permalink | Comments (0)

The University of Alabama School of Law - Professor Positions

By Haskell Murray

From an e-mail I recently received:

---------

The University of Alabama School of Law seeks to fill multiple entry-level/junior-lateral tenure-track positions for the 2018-19 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Positions are not necessarily limited by subject. However, there is a particular need for applicants who study and/or teach business law (corporate finance, mergers & acquisitions, and business planning are of particular interest); criminal law; insurance law; and torts (including products liability). Family law and labor/employment are also areas of interest. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal modeling, or historical or philosophical analysis).

The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Interested candidates should apply online at facultyjobs.ua.edu. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Professor William Brewbaker, Chair of the Faculty Appointments Committee ([email protected]).

August 25, 2017 in Business Associations, Corporate Finance, Corporate Governance, Jobs, Law School, M&A | Permalink | Comments (0)

Interview with Dr. Jeff Edmonds on Running and Education

By Haskell Murray

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I am delighted that Dr. Jeff Edmonds has agreed to be interviewed for this blog. Jeff and I graduated from the same high school in Chattanooga, TN, a few years apart. We both ran track, though Jeff ran a good bit faster than I ever did, and Jeff continued his running career at Rice University and Williams College. Jeff earned a PHD in philosophy at Vanderbilt University and is currently the high school academic dean at the prestigious University School of Nashville. Jeff coaches a running group called the Nashville Harriers, and he recently revived his excellent philosophy and running blog, The Logic of Long Distance.

The interview follows under the break. In the interview, Jeff shares wisdom on running and education that are well worth your time.

Continue reading

August 25, 2017 in Haskell Murray, Philosophy, Sports, Teaching, Wellness | Permalink | Comments (1)

Thursday, August 24, 2017

Tenured/Tenure-Track Position Announcement - Brooklyn Law

By joanheminway

From Friend-of-the-BLPB Minor Myers (blue font emphasis added by me!):

BROOKLYN LAW SCHOOL seeks one or more full-time, tenure-track or tenured faculty members. We are interested in outstanding candidates in all fields, including, in particular, securities law and regulation and corporate law. Other areas of potential interest are civil procedure, constitutional law, labor law, antitrust, and torts. Applicants should have a strong academic record and demonstrated commitment to scholarly activity and publication. We are interested in both entry-level and lateral candidates, and we are especially interested in candidates who will enhance the diversity of our faculty. In addition, Brooklyn Law School plans to hire a proven, innovative leader for our academic success program. Entry-level candidates, and candidates who have been teaching in a tenure-track position for no more than two years, should apply via the Faculty Appointments Register or by email to Professor Minor Myers, Chair, Faculty Appointments Subcommittee ([email protected]). Candidates who have been teaching in a tenure-track position for more than two years and candidates for the academic success position should apply via email to Professor Alex Stein, Chair, Lateral Faculty Appointments Subcommittee ([email protected]).

August 24, 2017 in Joan Heminway, Jobs | Permalink | Comments (0)

ICYMI: #corpgov Midweek Roundup (August 24, 2017)

By Stefan J. Padfield

August 24, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Wednesday, August 23, 2017

If You Annoy Your Professors, You Will Probably Annoy Your Boss/Clients

By Joshua Fershee

So, don't. Over at Above the Law, Prof. Kerriann Stout wrote 10 Things That Will Absolutely Piss Off Your Law Professor.  She notes it is not an exhaustive list, but it is a good one and worth a read.  This year, I added a new bit of information to my first day of class about how to interact with me about absences and workload.  (I often discuss this in class at some point, but I don't recall ever doing it in both of my classes on day one.) 

So, here's the deal.  In my classes, I allow a certain number of absences (depending on number of credits and days we meet) without questions for personal reasons, interviews, etc.  Here is an example of my attendance clause: 

Students are expected to attend every class.  Students are permitted to miss up to four classes for other obligations without explanation.  This number is to include virtually all absences, including sickness, out-of-town interviews, etc. (but does not include classes missed for religious observance).  If classes in excess of four are missed, to avoid withdrawal from the course, a written explanation may be required, including the reason for missing additional classes, the student’s plan to ensure the materials covered in the missed classes will be learned, and the reasons the student should be permitted to continue in the course.  The policy is designed to facilitate learning, not impose hardship.

This way, students can plan ahead (and most do), and they can make decisions as professionals must about how they prioritize their time.  Despite this policy, every year I have students email me to say they will (or did) miss class because they: 

  • Have to finish a paper for another class
  • Have a law review note or moot court brief due
  • Must study for a midterm
  • Need to prepare for a clinic meeting/hearing
  • Plan to attend an out-of-town football game/baseball game/concert

Again, I do not require nor do I ask for an explanation (unless it is related to excess absences, and no one has tried these reasons for that).  My new tack is to explain: 

    I am interested in you as a human being, so please do not hear me saying I don't care what you do or why.  And if you need help, you should ask. And if you can't ask me, talk to our Dean of Students or Dean of Academic Affairs or ask a friend. There is help available; please let us help.  What I am about to tell you is not about when you need help. It is about what you say when you can't make it to class or be prepared for that class and about what you say to me (or my colleagues) in communicating that information.

    Though I do not require it, I appreciate it when you tell me you cannot be in class on a given day. I am am fine if you very rarely request a pass for the day because you are not prepared.  But I don't ask you for reasons for your absence or why you are not prepared.  So, if you volunteer that information and tell me that you have to miss class or are unprepared because you need to finish a paper for another class, that says to me, "I have prioritized another class over yours."  You may not mean to be saying that, but it is in many ways what you are saying.  

    I understand that you may be sharing to be honest.  I appreciate that, and if I were to ask you, honesty is the best policy. I get that you might be trying to communicate that you are not missing my class for a frivolous reason. Okay, but you have still told me your priorities. I also understand that you might want some level of absolution.  I can't and shouldn't give you that. We all have a lot to do, and sometimes life gets in the way of life, so we must make tough choices.  That does not make me mad.  Just don't volunteer that you made such a choice when you don't need to volunteer that you did.  

    I raise this for you not because it really upsets me. It doesn't. It may annoy me on a given day, but I can handle it. But it really, really irritates some of my colleagues, even if they don't tell you.  And it is an incredibly risky thing to share with a client or boss, who definitely don't want to hear someone else's work is more important than their's. 

    So, be honest when asked, and take responsibility for your actions.  Don't share information unnecessarily. Don't seek external absolution from professors, or clients, or bosses. I am here to teach, and I am here to help you learn, and grow, and find the resources you need to thrive.  But I am not here to make you feel better about not doing the work I have asked of you.  

 

August 23, 2017 in Joshua P. Fershee, Law School, Lawyering, Teaching | Permalink | Comments (0)

Tuesday, August 22, 2017

Air Force Academy Visiting Professor Program Seeking Applications in Business Law

By Joshua Fershee

The following posting looks like an incredible opportunity to take a year to work with the Air Force cadets in Colorado Springs and maybe even check out the Olympic Training Center.  

Visiting Faculty Position:  Business Law

The Department of Law at the U.S. Air Force Academy in Colorado Springs, Colorado, offers an undergraduate Legal Studies Program.  We seek a career employee at an American graduate or undergraduate institution or government agency to fill a 10.5 month position as a visiting faculty member to teach, among other things, an undergraduate Business Law course.  This visiting position will be from July 2018 to May 2019. 

In addition to being a fulltime career employee at an academic institution or federal agency, applicants must have a J.D. degree from an accredited law school and at least five years fulltime teaching experience.  Preference will be given to experience teaching Business Law and related courses as well as on-going scholarship and practice-related activities.  Visiting Faculty responsibilities in addition to teaching include development, review, and assessment of related learning outcomes, courses and programs, and engagement with students and faculty.  The successful applicant may also teach the core (required) course, Law for Air Force Officers, a survey course covering topics such as criminal and constitutional law, law of armed conflict, jurisprudence, and legal tools of military discipline.  The person selected may also teach upper-level law courses as part of the Legal Studies major. 

The Visiting Professor Program allows the Air Force Academy to reimburse the sending institution/agency the costs of salary and benefits and pays costs of personal transportation and movement of household goods to Colorado Springs and back.  Housing is available on or off the Academy grounds, but is at the visiting faculty member’s expense.  Teaching expectations are negotiable, but would likely involve one or two courses both fall and spring semesters teaching sections of about 20 cadets.  The Academy faculty is an integrated group of military and civilian educators.  The curriculum includes core academic and professional courses, and 27 disciplinary and interdisciplinary majors.  The Department of Law is composed of 18 military and civilian attorneys and a small administrative staff. 

The United States Air Force Academy (USAFA), located just north of Colorado Springs, Colorado, is an undergraduate institution that awards the Bachelor of Science degree as part of its mission to educate, train, and inspire men and women to become officers of character, motivated to lead in the United States Air Force and in service to our nation.  The student body consists of approximately 4,000 men and women representing every state and several foreign countries. 

USAFA is dedicated to the goal of building a pluralistic faculty committed to a multicultural environment that enriches the educational experience of our students.  Hence, we are especially interested in candidates whose teaching, life experience and/or research interests contribute to a climate that values and uses diversity in all its forms.  Interested persons should submit a curriculum vitae and a statement of interest that addresses the ways in which the applicant’s qualifications meet the requirements of the ad to include evidence of teaching excellence, promise of research productivity, and commitment to diversity/inclusion.

Email applications are preferred and should contain: A resume/CV, list of three references, and a cover letter.  Please send them to Professor John Hertel at [email protected] or Department of Law, 2354 Fairchild Drive, USAF Academy, CO 80840.  Review of applications will begin as soon as possible and will continue until the position is filled.  For more information, please contact Professor John Hertel at: [email protected] or 719-333-2832.

August 22, 2017 in Jobs, Joshua P. Fershee | Permalink | Comments (0)

Monday, August 21, 2017

Where Were You For Eclipse Day 2017?

By joanheminway

Eclipse2017(totality)

So, it happened.  A total eclipse of the sun.  (And how many of you are still singing one of these songs in honor of the occasion?)  Where were you?  What did you see and do?  My best Android phone photo of totality is above.

I spent the day enjoying both the event and the charm of Charleston, South Carolina with my hubby, sister-in-law, brother-in-law, and nephew (a student at the College of Charleston)--as well as many others.  The photo below shows how dark it got on the ground for us during the total eclipse.  The street lights came on!

Eclipse2017(totalityground)

A lot of people left the park we settled in for the eclipse soon after totality.  My husband and I stayed to watch the moon move away.  It all was so amazing.  Check out the little sliver of sun emerging from under the moon in the spot between the clouds in the photo below.  Yowza!  Here comes the sun!

Eclipse2017(post)

I am sure the business and business law stories from the total eclipse of 2017 will take some time to resolve themselves.  But I did note this WaPo article from earlier today reporting that the run-up to the eclipse, at least out in Oregon, may have predicted a better outcome for some businesses than they actually were able to achieve. Issues around the viewing glasses (counterfeiting, misrepresentations, scarcity) have been paramount in my neck of the woods.  I wonder whether there will be any related litigation . . . .  I guess the question is more of a "when" and "what," however, than a "whether" . . . .

And for those who just want an quick and amusing business-oriented angle on the eclipse, this short piece from the folks at Inc. may fit the bill.

Happy Eclipse Day 2017.  I hope it was all you wanted it to be.

August 21, 2017 in Joan Heminway | Permalink | Comments (4)

Sunday, August 20, 2017

ICYMI: #corpgov Weekend Roundup (August 20, 2017)

By Stefan J. Padfield

August 20, 2017 in Stefan J. Padfield | Permalink | Comments (0)

Saturday, August 19, 2017

Donald Trump: Making Old Corporate Social Responsibility Arguments New Again

By Ann Lipton

I did a Lexis search, and found zero citations to Dodge v. Ford in the New York Times (though it appears there was at least one online reference in 2015), and only three in the Wall Street Journal – two of which were factual recitations regarding the history of corporate governance debates.

The third was yesterday’s op-ed, arguing that the shareholders of the companies that quit Trump’s manufacturing council (an issue discussed earlier this week by Marcia), as well as shareholders of other companies that purport to take a “moral” stance, should sue corporate executives for destroying shareholder value.  The authors, Jon L. Pritchett and Ed Tiryakian, argued:

Memo to activist CEOs: Dust off your notes, open your textbooks, and reread the basics of corporate finance taught at every credible university. The fiduciary responsibility of a CEO is to safeguard the company’s assets and acknowledge this overriding principle: “It’s not our money but that of the shareholders.”

In today’s heated political climate, some executives have rejected the fundamentals in favor of short-term publicity for themselves and their corporations. When several CEOs quickly resigned over the past few days from the now-disbanded White House Council on Manufacturing, they cited personal views or political disagreement as their reason for leaving. Those may be truthful reasons, but are they in the best interests of the companies they represent? Wouldn’t shareholders be better off with their interests represented in this powerful group of government officials who control regulatory policy?

...

In the landmark 1919 case Dodge v. Ford, the Michigan Supreme Court laid out the ruling that has guided corporate America ever since. Ford Motor Co. must make decisions in the interests of its shareholders, the court ruled, rather than in a charitable manner.

As any business law professor knows - and as Marcia made clear in her earlier post - the matter is not nearly that simple.  Even if we accept a pure shareholder wealth maximization frame, what would it mean for these companies’ ability to function if they remained?  #SoupNazi became a popular hashtag on Twitter to force Denise Morrison of Campbell’s Soup to quit the council; the celebrity endorsements of Under Armour may have been under threat due to Kevin Plank’s presence, and employees of Silicon Valley were in open revolt over their leaders’ cooperation with the Trump administration, which just goes to show why Dodge v. Ford is generally considered not good law, at least to the extent it proposes that courts second-guess the wisdom of business decisions.

That said, there’s the macro-level view.  Political instability is bad for business.  The perception that America strives for certain moral ideals, and its adherence to the rule of law, are good for business.  It’s reached the point where multiple companies are listing Trump as a risk factor in their SEC filings. 

America’s CEOs may have limited options for pressuring for more stability – and refusing to lend their credibility to Trump’s (largely ceremonial) business councils may be one of the few tools available.

In conclusion:

 

 

August 19, 2017 in Ann Lipton | Permalink | Comments (0)

Friday, August 18, 2017

Law & Wellness: Interview with Jodi D. Taylor (Shareholder at Baker Donelson)

By Haskell Murray

Jodi D. Taylor, a shareholder at the law firm Baker Donelson and a former classmate of mine, recently won the firm’s Work-Life Warrior Award. “Baker Donelson established the Work-Life Warrior Award to honor an attorney in the Firm who demonstrates an ongoing commitment to excellence in maintaining a healthy work-life balance or has advocated on behalf of work-life balance issues for the benefit of others.” Jodi graciously accepted my request to answer a few questions for this post, as part of the series I am doing on law and wellness.

The interview is below the break.

Continue reading

August 18, 2017 in Haskell Murray, Lawyering, Service, Wellness | Permalink | Comments (0)

University of Richmond School of Law Seeks Business Prof

By Ann Lipton

The University of Richmond School of Law seeks to fill three tenure-track positions for the 2018-2019 academic year, including one in corporate/securities law.  Candidates should have outstanding academic credentials and show superb promise for top-notch scholarship and teaching.  The University of Richmond, an equal opportunity employer, is committed to developing a diverse workforce and student body and to supporting an inclusive campus community.  Applications from candidates who will contribute to these goals are strongly encouraged. 

Inquiries and requests for additional information may be directed to Professor Jessica Erickson, Chair of Faculty Appointments, at [email protected]. 

August 18, 2017 in Ann Lipton, Jobs | Permalink | Comments (0)

Law & Wellness: Introduction

By Haskell Murray

On July 15 of this year, The New York Times ran an article entitled, “The Lawyer, The Addict.” The article looks at the life of Peter, a partner of a prestigious Silicon Valley law firm, before he died of a drug overdose.

You should read the entire article, but I will provide a few quotes.

  • “He had been working more than 60 hours a week for 20 years, ever since he started law school and worked his way into a partnership in the intellectual property practice of Wilson Sonsini.”
  • “Peter worked so much that he rarely cooked anymore, sustaining himself largely on fast food, snacks, coffee, ibuprofen and antacids.”
  • “Peter, one of the most successful people I have ever known, died a drug addict, felled by a systemic bacterial infection common to intravenous users.”
  • “The history on his cellphone shows the last call he ever made was for work. Peter, vomiting, unable to sit up, slipping in and out of consciousness, had managed, somehow, to dial into a conference call.”
  • “The further I probed, the more apparent it became that drug abuse among America’s lawyers is on the rise and deeply hidden.”
  • “One of the most comprehensive studies of lawyers and substance abuse was released just seven months after Peter died. That 2016 report, from the Hazelden Betty Ford Foundation and the American Bar Association, analyzed the responses of 12,825 licensed, practicing attorneys across 19 states. Over all, the results showed that about 21 percent of lawyers qualify as problem drinkers, while 28 percent struggle with mild or more serious depression and 19 percent struggle with anxiety. Only 3,419 lawyers answered questions about drug use, and that itself is telling, said Patrick Krill, the study’s lead author and also a lawyer. “It’s left to speculation what motivated 75 percent of attorneys to skip over the section on drug use as if it wasn’t there.” In Mr. Krill’s opinion, they were afraid to answer. Of the lawyers that did answer those questions, 5.6 percent used cocaine, crack and stimulants; 5.6 percent used opioids; 10.2 percent used marijuana and hash; and nearly 16 percent used sedatives.”

There is much more in the article, including claims that the problems with mindset and addiction, for many, start in law school.

After reading this article, and many like it (and living through the suicide of a partner at one of my former firms), I decided to do a series of posts on Law & Wellness. These posts will not focus on mental health or addiction problems. Rather, these posts will focus on the positive side. For example, I plan a handful of interviews with lawyers and educators who manage to do well both inside and outside of the office, finding ways to work efficiently and prioritize properly. My co-editors may chime in from time to time with related posts of their own.

August 18, 2017 in Current Affairs, Ethics, Family, Haskell Murray, Law School, Management, Wellness | Permalink | Comments (2)

Thursday, August 17, 2017

AALS Section on Business Associations: Call for Nominations - Outstanding Mentors of 2017

By joanheminway

The Executive Committee of the AALS Section on Business Associations seeks to recognize Section members who demonstrate exemplary mentoring qualities.  We seek nomination letters on behalf of a deserving colleague (please no self-nominations) on or before November 1, 2017, sent to Professor Anne Tucker at [email protected].

Nominations should address personal experience with the mentor, and any additional information illustrative of the nominee’s dedication to mentoring including qualities such as:

  • Is eager to discuss others’ early ideas and contributes to the development and improvement of others’ work;
  • Promotes and encourages the success of junior scholars by reading and providing meaningful and useful feedback on drafts;
  • Promotes a supportive and rigorous environment for conference presentations;
  • Speaks frankly, provides useful professional and personal advice when asked;
  • Actively participates in a network of scholars;
  • Facilitates professional opportunities for junior scholars such as providing introductions to others in the field, and encouraging participation in the scholarly community through writing and speaking; 
  • Mentors those from underrepresented communities in academics and the study of law;
  • Actively/willingly participates in the promotion process for others by advising on tenure process, writing review letters, and providing useful guidance on career advancement.

Who May Nominate: Any member of the Section on Business Associations. 

Who is Eligible to Be Nominated: Members of the Section on Business Associations and others are eligible for nomination.  Nominees should have 10 years or more of law teaching.

Recognition: The Executive Committee will recognize all nominees at the AALS 2018 Annual Meeting and distribute the list to Section members.

In 2015, the Section recognized the following outstanding mentors:

Egon Guttman, Lynne L. Dallas, Claire Moore Dickerson, Christopher Drahozal, William A ("Bill") Klein, Donald C. Langevoort,  Juliet Moringiello, Marleen O'Connor, Charles (Chuck) O'Kelley, Terry O'Neill, Alysa Rollack, Roberta Romano & Gordon Smith

August 17, 2017 in Anne Tucker, Joan Heminway, Law School | Permalink | Comments (0)

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