Monday, September 30, 2024
Fordham Law - Entrepreneurial Law Clinic Director Opening
FORDHAM UNIVERSITY SCHOOL OF LAW invites applications for a full-time tenure, tenure-track, or long-term contract faculty position to direct our Entrepreneurial Law Clinic. The faculty member will join a vibrant clinical program that has 15 full-time clinicians who teach, practice, and lead. We welcome interest both from those new to clinical legal teaching and from experienced clinicians; an appointment could be made to Associate Clinical Professor, Associate Professor, Clinical Professor, or Professor.
We seek dynamic candidates who are excited about clinical legal education, deeply committed to the academic enterprise, and able to collaborate with diverse groups inside and outside our university. We also welcome candidates who possess the capacity and inclination to support and advance law reform. Commitment to principles of experiential learning and clinical pedagogy is central to the position; those who are not already conversant with these principles should be committed to developing in this domain. The faculty member will have primary responsibility teaching and supervising students in the Entrepreneurial Clinic at our in-house law firm (Lincoln Square Legal Services, Inc.). They will also have primary responsibility for selecting clients and matters and structuring the overall design and goals of the clinic.
In its current form, the highly successful Entrepreneurial Law Clinic provides pro bono transactional legal services to under-resourced entrepreneurs and small business owners and participates in community outreach to educate entrepreneurs about legal issues. Students work with clients to form entities, structure incentive compensation for founders, protect clients' intellectual property rights, help clients build their workforce, as well as draft shareholder, operating, vendor, customer, lease and/or employment agreements. We are open to candidates who wish to work within the Clinic’s current form as well as those who wish to advance their own distinctive vision of an Entrepreneurial Clinic at Fordham Law School.
We welcome applications from all qualified candidates, including those applicants facing barriers to or who have been underserved by legal education and in the legal profession. The salary range for this job is $175,000-$290,000, dependent on experience. Any summer case coverage or research funding is in addition.
Qualifications
Candidates must hold a JD or its equivalent and be members of the New York Bar (or be eligible to seek membership as soon as reasonably possible after committing to join us). A period of at least three years of practice experience in transactional practice is preferred.
Application Instructions
Candidates can review the full job posting and apply for the position through Interfolio. Applications should consist of a C.V. and a cover letter stating the applicant’s vision for the clients and communities the clinic would serve, the range of matters to be handled, and the clinic’s student learning objectives. The cover letter should also indicate aspects of the candidate’s practice experience that render them suitable for the position. Candidates seeking a tenure or tenure-track position should include a separate research agenda and potential job market paper.
For questions, please contact Professor Tracy Higgins or Professor Paul Radvany, Co-Chairs of the Clinical Faculty Appointments Committee, at [email protected], [email protected].
Applications will be accepted until the position is filled but applicants are strongly encouraged to submit their materials by October 15, 2024 or earlier.
September 30, 2024 in Clinical Education, Entrepreneurship, Joan Heminway, Jobs | Permalink | Comments (0)
Saturday, September 28, 2024
Zymergen
The SEC recently settled an enforcement action against Zymergen for making false projections about its business. Prior to its IPO in April 2021, many of these projections were given directly to analysts. Zymergen did not include the projections in its registration statement, because companies are strictly liable to investors for false statements in a registration statement under Section 11 of the Securities Act, and so they generally try to avoid making projections that may turn out to be overly optimistic. Instead, Zymergen gave the false projections to analysts, so the analysts would take the projections, and use them in building their models, which they would pass on to investors with a recommendation of some sort.
One question then, is, if the SEC had not brought an enforcement action, could Zymergen have been liable to investors for passing on bad info to analysts?
The answer is, maybe not. Certainly not under Section 11, which only applies to information in a registration statement. And maybe not under Section 10(b), the general antifraud statute, because Stoneridge v. Scientific-Atlanta holds that public investors are not deemed to “rely” on behind-the-scenes conduct that’s filtered to the public through the false statements of another entity. (But see Janus Capital Group, Inc. v. First Derivative Traders, raising the possibility, without deciding, that statements to analysts are public for 10(b) purposes).
Could the analysts themselves be liable for passing on targets based on false projections? Certainly not under Section 10(b), unless they knew or were reckless about falsity, because Section 10(b) only applies to intentional frauds.
What about under Section 12, which imposes negligence liability for anyone who distributes a false offer for the sale of securities (which could theoretically apply to Zymergen, as well?)
It’s complicated. The Supreme Court has narrowed the application of Section 12 in ways that are somewhat convoluted, and might preclude liability here, though in the pre-IPO context it's hard to say. But a second issue concerns whether the research report could be considered an offer in the first place. Maybe so, except in the JOBS Act of 2012, Congress legislated an exception to the definition of offer, so that any research report is not an offer if it concerns an IPO of an emerging growth company. So, because Zymergen (like most IPOs) was an emerging growth company, the analysts themselves were free to distribute Zymergen’s false information, without fear of Section 12 liability; they could only be liable if they themselves acted intentionally under Section 10(b).
The combination creates some… well, troubling incentives, especially for analysts who work for investment banks that are part of the selling group and therefore may feel some pressure to offer positive coverage. The analyst report itself won’t trigger negligence liability as a false Section 12 prospectus (because of the carveout), shareholders who read the analyst report (probably) can’t sue Zymergen under 10(b) (because of Stoneridge), and neither Zymergen, nor the underwriters who might even employ the analyst, will be liable under Section 11 for false statements in the registration statement, because those false statements were by hypothesis carved out of the registration statement to be farmed out by the analysts instead.
Now, after the dot com scandals of the early 2000s, the SEC procured settlements from the largest investment banks to separate their underwriting and research segments and new FINRA rules also required such separation but, you know, the Zymergen situation does raise the question whether this is the correct balance, especially since I gather it is fairly common practice for pre-IPO firms to share revenue guidance with analysts, in the expectation those analysts will present the information to investors.
On this point, I note that Zymergen’s registration statement contains the following standard language:
We are responsible for the information contained in this prospectus. We and the underwriters have not authorized anyone to provide any information or to make any representations other than those contained in this prospectus or in any free writing prospectuses prepared by us or on our behalf. We and the underwriters take no responsibility for any other information that others may provide you.
The SEC doesn’t mention it; still, it’s weird to me that these companies are permitted to filter their projections through analysts in hopes of flogging an IPO, while simultaneously publicly disclaiming any of that analysis.
That said, investors did, in fact, identify some allegedly false statements that were directly included in Zymergen’s registration statement, and those are the subject of an ongoing securities case under Section 11. So … all’s well that ends well?
And finally, the latest Shareholder Primacy podcast is up. This time me and Mike Levin talk TripAdvisor (pending before the Delaware Supreme Court) and 14a-4 shareholder proposals. Available on Spotify, Apple, and YouTube.
September 28, 2024 in Ann Lipton | Permalink | Comments (0)
Friday, September 27, 2024
NCCU 2024 Law and Technology Symposium and Summit October 10–11, 2024
If you're in North Carolina, or just passionate about the topic, consider coming to the NCCU 2024 Law and Technology Symposium and Summit October 10–11, 2024 at the Durham Convention Center. The symposium dives deep into generative AI and its impact on healthcare, while the summit offers a broader look at AI, data privacy, cybersecurity, emerging trends in tech policy, legal services regulation, and more.
To register for the Symposium on October 10, please email [email protected].
To register for the Summit on October 11, where I'm speaking, click on the "Register Today" link.
The organizers are still finalizing speakers, but if you come, look out for me on the Legal Risks in Cybersecurity Investigations panel. My co-panelists include Tylin Woodstock of Cisco Systems and Daniel Shin of William & Mary Law School.
The full agenda and impressive line up of speakers for the October 11 Summit , including two members of Congress, is below.
8:00 AM ET
September 27, 2024 in Compliance, Conferences, Current Affairs, Insurance, Intellectual Property, Law School, Lawyering, Marcia Narine Weldon, Technology | Permalink | Comments (0)
Thursday, September 26, 2024
Reincorporation Returns: A Practitioner-Driven Stormlet or A Controller Cloudburst?
Reincorporations from Delaware to Nevada and elsewhere remain in the news with the Delaware Supreme Court awaiting oral argument in the TripAdvisor case. I've covered the issue here before and written about Nevada with our Secretary of State for the Wall Street Journal. Nevada offers an alternative to Delaware and a different litigation environment. In that op-ed, we framed the issue this way:
The likelihood of expensive, meritless or value-destroying litigation leads public companies in Delaware to avoid deals they would otherwise make. Another of the three public companies that recently decided to exit, Fidelity National Financial, explained in a shareholder letter that the state’s approach “may discourage pursuit of transactions the Board might otherwise believe to be in the best interests of the Company and its stockholders” because of litigation costs.
This issue looms particularly large for corporations with significant shareholders. Although Delaware law offers a process for companies to manage transactions with conflicts outside court, Delaware jurists themselves don’t always agree about how much information corporate boards must push out to shareholders to avoid litigation. When the process becomes too costly and cumbersome, deals don’t get done.
This brings me to the most recent reincorporation proxy filed this week--Trade Desk, Inc.--a company with a market capitalization of over $50 billion. The preliminary proxy contends that Delaware has grown uncertain and overly litigious for their tastes and that Trade Desk has been left burned by litigation distractions in Delaware. The preliminary proxy explains:
The Trade Desk has felt the weight of this trend in Delaware courts. Our litigation wins in Delaware have not been without cost.. . . .
. . . Even after following the time-consuming and costly process set out in MFW, we were still sued in Delaware based on allegations that we did not follow the requisite process, that our independent committee members were conflicted and that we provided supposedly deficient disclosures. This resulted in the Company expending significant time and resources to defend the case. Two years [later] . . . the case was dismissed after the judge determined the plaintiffs failed to state a claim against the Company and its then-directors. Although we were successful on the merits and the plaintiffs’ case was dismissed in full, it was not without significant diversion of time and resources from our business.
We and certain of our directors again face time-consuming and costly litigation in Delaware in connection with the market-based performance award granted to Mr. Green in 2021 (the “CEO Performance Option”), for which the proceeding was initiated in May 2022. We continue to view the CEO Performance Option as an appropriate tool for incentivizing Mr. Green and creating a long-term incentive to further align his interests with stockholder interests. As of September 23, 2024, litigation over the CEO Performance Option remains pending, and we are awaiting the court’s decision on the defendants’ motions to dismiss.
Controlled corporations may conclude that the game of going through a conflict cleansing procedure under MFW may not be worth the candle because they get sued anyway and spend years litigating it even if they win. The board concluded that they believed "flexibility and certainty in corporate decision-making can offer the Company competitive advantages needed to stay nimble and compete effectively in the years to come" and "determined it was in the best interests of the Company and our stockholders to evaluate reincorporating to a jurisdiction that we believe could provide this flexibility."
As part of that exploration, the board ultimately settled on Nevada and obtained advice from Latham & Watkins LLP and Wilson Sonsini Goodrich & Rosati PC. They even hired Steven Davidoff Solomon to evaluate differences in the jurisdictions. He provided an "academic review of incorporation and reincorporation, including principles of corporate governance, the value attributable to a company’s situs of incorporation and legal and policy distinctions between Delaware and Nevada." Some of his findings and observations include:
- Academic studies do not support the conclusion that there is additional value in incorporating in Delaware.
- My own empirical analysis supports the view that reincorporation from Delaware to another state does not incur a negative premium.
- Nevada and Delaware corporate law is largely similar with respect to many governance rights, including economic rights associated with holding common stock.
- The differences between Nevada and Delaware law, often cited in the literature, stem from each state’s policy choices.
- In assessing the differences between Delaware and Nevada law, the Board, under its duty of care, should determine which laws and internal governance structures best serve the interests of the Company and its shareholders.
Trade Desk appears likely to win its vote. Jeff Green, the CEO, has 48.6% of the voting power.
It's still early to see how many corporations might migrate away from Delaware. As Vice Chancellor Laster memorably put it, the noise around Nevada as an alternative domicile to Delaware might just be a "practitioner-driven stormlet." To run with this theme, it could also turn into a controller cloudburst or some other weather pattern. For now, it appears that corporations with controllers or other large shareholders may be closely considering this question. It will be interesting to watch this continue to play out.
And here, I want to pause and plug my co-blogger's excellent podcast on the TripAdvisor case that came out a few days ago. If you want another way to get up to speed on this issue, it's worth a listen.
September 26, 2024 | Permalink | Comments (0)
Tuesday, September 24, 2024
Widener Law Seeking Business Law Faculty!
Widener University Delaware Law School located in Wilmington, Delaware, currently has multiple, full time, tenure-track faculty opportunities available to begin January 1, 2025, or July 1, 2025. Applications for visitors for the upcoming Spring 2025 Semester are also welcome.
We welcome applications from candidates with teaching interests in required and bar tested courses. The list of courses includes:
- Academic Success
- Civil Procedure
- Constitutional Law
- Corporate Law
- Contracts
- Criminal Law
- Criminal Procedure
- Evidence
- Legal Research and Writing
- Property Law
- Professional Responsibility
- Torts
- Wills and Trusts
Qualified candidates will have strong academic credentials, including at least a J.D. degree or its equivalent. Candidates should demonstrate evidence of and potential for innovative and impactful teaching, scholarship, and service to the Law School, the University, and the legal profession. We welcome applications from candidates who approach pedagogy and scholarship from a variety of perspectives and methods.
In its sixth decade, Delaware Law School is the oldest and only ABA-accredited law school in the nation's First State of Delaware. It has civic-minded students and staff and a top-notch faculty featuring some of the most highly regarded teachers, legal scholars, and social change agents in the nation. The large corporate community in Delaware and the varieties of legal practice opportunities in neighboring Pennsylvania, New Jersey, and Maryland offer students an unusually rich array of opportunities for experiential learning through internships and externships, a public interest law center, and numerous clinical programs.
DUTIES AND RESPONSIBILITIES (including, but not limited to):
Essential:
- Teach law school introductory and upper-level courses.
- Engage in productive research, scholarship, and service.
- Demonstrate academic citizenship at all levels within the university.
Secondary:
- Advise students related to law school and career success.
- Participate in faculty governance.
MINIMUM QUALIFICATIONS (education/training and experience required):
Required:
- Juris Doctor degree or its equivalent.
- Demonstrated commitment to legal education.
- Evidence of scholarly potential. Positions are not limited by area of research specialization.
Preferred:
- Teaching experience in legal education.
- Published legal scholarship.
- Experience with professional service and practice.
Applicants are invited to submit a cover letter, CV, and three references at widener.edu/jobs. Applications will be accepted on a rolling basis. Only those selected for an interview will be contacted. Please direct questions to Professor Luke Scheuer, Appointments Committee Chair, [email protected]. The University embraces diversity in its faculty, students, and staff. We welcome applications from those who would add to the diversity of our academic community.
All qualified applicants are encouraged to apply and will receive consideration for employment without regard to race, religion, color, national origin, age, sex, sexual orientation, disability status, or any other characteristic protected by applicable law. Widener University is committed to fostering an inclusive community in which faculty, staff, and students from a variety of backgrounds, cultures, and personal experiences are welcomed and can thrive. We are an equal opportunity employer and are committed to providing equal educational and employment opportunities for all persons without regard to age, color, national origin, race, religion, disability, veteran status, sex, sexual orientation, gender identity, genetic information, or status as a protected veteran.
Widener University, an independent, metropolitan, doctoral-intensive university, connects curricula to social issues through civic engagement. Dynamic teaching, active scholarship, personal attention and experiential learning are key components of the Widener Experience. Located in Chester, PA, Widener's main campus is nestled between Philadelphia, PA and Wilmington, DE, with Law Schools located in both Harrisburg and Wilmington. For more information about the university, please visit our website at www.widener.edu.
EOE M/F/V/D
Widener University is an equal opportunity employer that encourages excellence through diversity. Women and minority candidates are encouraged to apply.
September 24, 2024 in Joan Heminway, Jobs | Permalink | Comments (0)
Monday, September 23, 2024
Call for Papers - American Business Law Journal Special Issue on Rescuing Organizations in Financial Distress
Dear BLPB Readers:
"The American Business Law Journal (ABLJ) is seeking manuscripts for a special issue on “Rescuing Organizations in Financial Distress.”
Organizations around the globe, both private businesses and public entities, are currently experiencing extraordinary financial pressure and distress. A panoply of internal and external causal factors are contributing to the financial distress. While some organizations can overcome their financial predicament through continued operations, others require legal mechanisms to facilitate a path to rescue. The failure of a private business or the collapse of a public organization has a cascading impact on a host of stakeholders and interests, leading to significant detrimental outcomes well beyond the organization in financial distress. The special issue explores what businesses, regulators, lawmakers, and attorneys should do to provide effective rescue regimes and tools for organizations in financial distress."
The deadline for submissions is February 3, 2025. The complete call for papers is here: Download Updated ABLJ 2025 Special Issue Call for Papers - Sept 2024.
September 23, 2024 in Call for Papers, Colleen Baker | Permalink | Comments (0)
UIC Faculty Search - Business Associations a Secondary Need
UIC Law is currently looking to hire for an entry-level tenure-track position. They are inviting candidates to apply directly for consideration in their faculty hiring. The announcement is below. UIC requires candidates to apply directly before they can invite a candidate to interview with them. Candidates can follow this link to the webpage to apply by October 7, 2024.
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UIC Law, Chicago's only public law school, invites applications for one entry-level tenure-track candidate to teach Torts and Products Liability with secondary needs of Business Associations and Constitutional Law.
Candidates must have a Juris Doctor from an ABA-approved law school or its equivalent from a foreign country; a record of teaching excellence or demonstrated potential to become an excellent teacher and a record of high-quality scholarship or demonstrated potential to produce high-quality scholarship; and demonstrated interested in serving the academy, the community, and the legal profession at an urban, public, Research 1 university. Excellent writing and communication skills and demonstrated ability to mentor students is highly preferred. Salary will be commensurate with experience and qualifications.
Confidential review of materials and screening of candidates will be ongoing and will continue until the position is filled. For fullest consideration, apply online at https://jobs.uic.edu by October 7, 2024. Include a letter of intent, a current CV/resume, and the names of three professional references.
The University does not engage in discrimination or harassment against any person because of race (ethnicity), color, religion, sex, pregnancy, disability, national origin, citizenship status, ancestry, age, order of protection status, genetic information, marital status, sexual orientation, gender (including gender identity and gender expression), arrest record status, unfavorable discharge from the military, or status as a protected veteran (military status) and complies with all federal and state nondiscrimination, equal opportunity, and affirmative action laws, orders, and regulations.
The University of Illinois may conduct background checks in compliance with the Fair Credit Reporting Act on all job candidates upon acceptance of a contingent offer. The University of Illinois System requires candidates selected for hire to disclose any documented finding of sexual misconduct or sexual harassment and to authorize inquiries to current and former employers regarding findings of sexual misconduct or sexual harassment. For more information, visit www.hr.uillinois.edu/cms/...
September 23, 2024 in Joan Heminway, Jobs | Permalink | Comments (0)
Saturday, September 21, 2024
Climate Change and Wahed Invest, a Reprise
A while ago, I posted about an SEC enforcement action against Wahed Invest. Wahed Invest is a religious investment advisor that purported to select and monitor investments to ensure compliance with Shari’ah law. In fact, according to the SEC, it did not in fact have policies in place to assess ongoing Shari’ah law compliance,
At the time, I noted that I had not before seen an enforcement action based on false nonfinancial representations – that were nonetheless material to investors’ nonfinancial goals - and I compared it to the then-proposed climate change rule’s consideration for the nonfinancial goals of investors. Specifically, the proposed rule justified, in part, its requirement that companies disclose GHG emissions on the ground that some investors have made net-zero commitments, regardless of whether the emissions data would be financially material to the operating company.
Well, this morning, I learned about a new SEC enforcement action against Inspire Investing. Like Wahed, Inspire is a religious investment advisor, and like Wahed, it purported to engage in a “biblically responsible” investment strategy that required it to use sophisticated data analysis to ensure no companies in its ETFs engaged in certain prohibited activities. In fact, its methods were far more slipshod than it represented, resulting in a number of verboten companies being included in its funds.
So, once again, the SEC took action to protect investors’ nonfinancial goals, i.e., it adopted a concept of materiality that originated from investors’ values, but was not tied to financial values.
Which is useful to consider in light of the final climate change rules. Not only is the GHG emissions disclosure requirement softened to focus solely on materiality to the company (previously, that was only for disclosure of Scope 3 emissions, which requirement is eliminated entirely), but the references to investor net zero commitments – investor financial goals – is (as far as I can tell, it’s a very long document) gone.
(To be fair, a lot of institutions have left the alliances that previously were committed to net zero goals, and one alliance has disbanded entirely, but a lot of that movement happened after the rules were finalized and some investors maintain their commitments).
Point being, we are in a world where apparently materiality for the purposes of assessing fraud can include nonfinancial information, but for the purpose of affirmative disclosure requirements, its status remains uncertain.
And another thing...
The latest episode of my Shareholder Primacy podcast with Mike Levin is up; this one deals with Moelis/SB313 and advance notice bylaws. Links on Spotify, Apple, and YouTube.
September 21, 2024 in Ann Lipton | Permalink | Comments (0)
Friday, September 20, 2024
Negotiation and Drafting Competitions for Law Students
One of the best ways for students to feel like "real lawyers" is for them to negotiate and draft contracts. The University of Miami will be announcing an inaugural invitational in the coming weeks so if you want to be in sunny Florida in early February, stay tuned. That competition will not require knowledge of M&A.
If M&A is your happy place, here's a fantastic opportunity from the American Bar Association.
MAC CUP II- ABA M&A Committee Invitational
Fall 2024 – January 2025
Application and Preliminary Instructions
The M&A Committee of the American Bar Association’s Business Law Section is seeking applications from JD students enrolled in ABA-approved law schools in the US and Canada to participate in its annual ABA M&A Committee Invitational (the “MAC Cup”).
Get your sunscreen and sunglasses ready — the “Final Four” teams will win an expense-paid trip to Laguna Beach, California, to compete for the championship at the ABA M&A Committee’s annual meeting on January 30 - 31, 2025.
Students should apply, and will participate, in teams of two. Qualifying rounds will be held during Fall 2024, with final rounds in January 2025. Additional information is attached below. Materials from last year’s MAC Cup, and other information, is available at the MAC Cup homepage: .
Students seeking an invitation to participate in the MAC Cup should:
(i) complete the application (see the website),
(ii) provide blinded resumes,
(iii) prepare the one page statement of interest described below.
These materials should be sent to both: (i) Thaddeus Chase, McDermott Will & Emery, at [email protected] and (ii) the MAC Cup Subcommittee at [email protected].
Students on a proposed team should complete a single application and statement of interest together and submit them (along with each of their resumes) jointly.
The application deadline is September 25, 2024.
Team Application Period - September 3-25, 2024
First Open Round - October 26/27, 2024 (Virtual)
Second Open Round - November 2/3, 2024 (Virtual)
Elite 8 Negotiations - January 25, 2024 (Virtual)
Semi-Finals - January 30, 2025, Laguna Beach California
Finals - January 31, 2025, Laguna Beach California
Good luck!
September 20, 2024 in Contracts, Law School, Lawyering, M&A, Marcia Narine Weldon | Permalink | Comments (0)
Thursday, September 19, 2024
SEC Advertising Enforcement
The SEC's ongoing sweep recently resolved potential claims against nine different SEC-registered investment advisory firms for violations of its Marketing Rule. The firms paid civil penalties ranging from $60,000 to $325,000. In total, the SEC secured about $1.2 million in civil penalties.
Marketing Rule enforcement sits in an interesting place after the Jarkesy decision. The Marketing Rule is Advisers Act Rule 206(4)-1. It's codified at 17 C.F.R. 275.206(4)-1. Section 206 of the Advisers Act is an anti-fraud provision.
Jarkesy would seemingly apply to give respondents the right to a jury trial and a federal court proceeding. Although addressing a different portion of the securities laws, the Jarkesy majority put it this way:
According to the SEC, these are actions under the “antifraud provisions of the federal securities laws” for “fraudulent conduct.” App. to Pet. for Cert. 72a–73a (opinion of the Commission). They provide civil penalties, a punitive remedy that we have recognized “could only be enforced in courts of law.” Tull, 481 U. S., at 422. And they target the same basic conduct as common law fraud, employ the same terms of art, and operate pursuant to similar legal principles. See supra, at 10–12. In short, this action involves a “matter[] of private rather than public right.” Granfinanciera, 492 U. S., at 56. Therefore, “Congress may not ‘withdraw’” it “‘from judicial cognizance.’” Stern, 564 U. S., at 484 (quoting Murray’s Lessee, 18 How., at 284).
Had the SEC not reached an agreement to resolve these claims, it likely would have decided to pursue claims in federal court instead of more expeditiously through its in-house administrative process.
It's unknowable how the change in enforcement procedure may or may not have affected the resolution on these issues. Consider the largest penalty, $325,000 from Integrated Advisors. The firm has "approximately $4.2 billion in regulatory assets under management." The civil penalty resolved a claim arising out of this factual circumstance:
During the Relevant Period, Integrated Advisors published a communication on the public website of one of its DBA firms that constituted an “advertisement” because it offered investment advisory services with regard to securities to prospective clients, through its affiliation with Integrated Advisors, and offered new investment advisory services with regard to securities to current clients. As the communication was published on a public website, it was made to more than one person.
This advertisement contained the material statement of fact that the DBA firm was “a true fiduciary that puts the client first by aligning incentives and eliminating conflicts of interest” without providing any context for this claim. However, Integrated Advisors has recognized various conflicts of interest inherent in providing investment advisory services, including conflicts of interest disclosed in its Form ADV Part 2A brochures.
Frankly, I see the SEC as having Integrated Advisors dead to rights here, yet I don't know that the misstatement necessarily warranted the biggest penalty of the bunch. Of course, we're only able to see what made it into the order. It may be that the SEC was more concerned with how well the firm supervises advisers going out and making statements. Given its scale, the penalty may be more aimed at ensuring an oversight problem gets fixed.
Other advisers made the same mistakes and walked out with lower penalties. Consider AZ Apice. The firm claimed that its advice was "free from conflicts of interest" while also disclosing conflicts on its Form ADV. It paid just $70,000. Of course, AZ Apice only has about $325 million in assets under management, so the SEC may have scaled the penalty based on firm size.
TS Bank, doing business as Callahan Financial Planning made the same mistake, plus more, while also getting a lower penalty. The firm has a mere $248 million in assets under management. It also claimed not to have conflicts while disclosing conflicts. Yet it went off the rails by making false claims about being a "member" of an entity that doesn't exist! This is how the order describes it.
Callahan disseminated an advertisement on its public website containing an untrue statement of a material fact. Specifically, Callahan Financial published an advertisement on its website in which it described Callahan Financial as a “Member” of “Fiduciary Firm.” However, Callahan Financial was not a “Member” of “Fiduciary Firm,” as “Fiduciary Firm” is a non-existent organization. Callahan Financial’s advertisement included a purported logo for this non-existent organization.
For these sins, Callahan paid just $85,000.
From this, we can see the SEC trying to calibrate penalties appropriately--taking into account firm size and the nature of the wrongdoing. What Callahan did seems worse than AZ Apice and Integrated advisers because it invented a fake entity and even gave it a logo. It's also the smallest of the three by assets under management.
Other firms with exposure may be looking at these and trying to figure out where they could resolve issues with the SEC. Firms with more assets under management should probably expect that they'll end up with a higher penalty. You might be able to work out what kind of grid may be in play here by connecting the dots behind all nine of the awards.
September 19, 2024 | Permalink | Comments (0)
Wednesday, September 18, 2024
Beckley Securities Law Writing Contest For Law Students
The Contest
The Public Investors Advocate Bar Association (PIABA) sponsors this contest for papers touching on securities law and securities arbitration and will pay over $3,000 in awards to law students with prizes at $1,500, $1,000, and $750 for the top three entrants. The PIABA Bar Journal will publish the first place paper and, in years past, has also made offers to publish other papers from the contest. Papers must be submitted by Friday, March 28, 2025.
Eligibility
The competition is open to all students attending a law school in the United States.[1] PIABA employees and externs (except for students working less than 20 hours per week) are not eligible to enter the competition.
Criteria and Judging
All entries will be judged anonymously by the Competition Judges, who will select the winning submission(s). PIABA will notify the award winner(s) in early April.
Entries will be judged based on the following criteria: quality of research and authority provided; accuracy and clarity of the analysis; compliance with legal writing standards and technical quality of writing, including organization, grammar, syntax, and form. Strong preference will be given to articles that advocate pro-investor positions, provide updates on or surveys of securities or ADR law, and/or are consistent with PIABA’s mission of promoting the education and interests of the public investor in securities and commodities arbitration, protecting public investors from abuses in the arbitration process, and making securities and commodities arbitration fair through legislative reforms to arbitration forum providers. The Judges reserve the right not to award any prizes if it is determined that no entries are of sufficient quality to merit selection that year.
Format
The text of a submission must be double-spaced, with twelve-point font and one-inch margins. Any Question(s) Presented section, the Statement of the Facts / Statement of the Law section, the Argument section, and/or the Conclusion together are a minimum of 15 pages and a maximum of 30 pages. If the submission covers both a topic among those listed above and a topic not listed above, only the topic listed above will be evaluated. Submissions will not be penalized for arguing a position that would limit investor rights rather than expand them.
Submission Deadline
The submission deadline is 5 p.m. eastern on Friday, March 28, 2025. Submissions will be accepted via an online submission portal only. The portal will be posted to PIABA's website. The contestant's name and other identifying markings such as school name are not to be on any copy of the submitted entry. PIABA will assign a random number to each entry and will record this number on all copies of each submission. Neither the contestant's identity nor their academic institution will be known to any Competition Judge. Each entrant may submit only one entry.
About James E. Beckley
James E. Beckley – a passionate securities arbitration activist and an accomplished scholar – was well known for defending and promoting the rights of public investors. Along with his advocacy skills, he was as a prolific and outstanding writer. Mr. Beckley served on the Securities Industry Conference on Arbitration, an organization created at the request of the Securities and Exchange Commission to maintain and update the Uniform Code of Arbitration for securities arbitration, and to serve as a sounding board on issues of fairness in arbitration. At the time of his death in 1999, Mr. Beckley was the Public Investors Arbitration Bar Association (“PIABA”) President. This competition and award has been established to honor his legacy.
[1] Full-time students who are not law students but who write law-related papers as part of a course at an American law school may also enter
September 18, 2024 | Permalink | Comments (0)
Monday, September 16, 2024
Annual Peter J. Henning Memorial Lecture
Earlier today, I had the honor of attending the second annual Peter J. Henning Memorial Lecture at Wayne State University Law School. Mary Jo White, a partner at Debevoise & Plimpton and the former U.S. Attorney for the Southern District of New York and Chair of the U.S. Securities and Exchange Commission, delivered the lecture. Her topic: "The Psychology of White Collar Crime and How to Combat It."
Mary Jo is an engaging speaker. Her talk covered significant ground in a short period of time. In addressing her chosen topic, she drew from academic and professional sources, including her own experience.
Her focus was on ways to create effective deterrence. She offered three things that work well in that regard:
- prison sentences (althoigh not those with significantly long terms and no opportunity for parole) and wide publicity of the same in the news media, citing to 1980s insider trading enforcement efforts and the new millennium Enron era accounting fraud enforcement efforts as examples;
- multiple enforcement cases of the same kind brought close in time--creating what she referred to as "industry-changing deterrence"; and
- whistleblower programs, which she praised for their capacity to permit broad and quick enforcement against serious frauds.
She also noted drawbacks associated with enforcing against firms rather than individuals.
Along the way, Mary Jo made numerous smaller points and subpoints, extolling the virtues of in-person compliance trainings, including empathic trainings offered by people who are in effectively the same position as the trainees. She observed that deterrence is difficult in white collar crime enforcement; those who engage in while collar crime are psychologically complex and do not always respond logically in making law compliance/violation decisions. She cited to Eugene Soltes's work Why They Do It) and to Cressey's fraud triangle and the subsequent Wolfe and Hermanson fraud diamond. She noted technology's roles both as an efficient way to help identify fraud and as an assistance to fraudulent behavior.
In closing, Mary Jo suggested that achieving the effective deterrence of white collar crime will involve "thinking outside the box" about laws providing for and governing enforcement. In particular, she suggested we should be looking at ways of increasing C-suite accountability. She noted, however, the need for enforcement to be even and fair (devoid of, e.g., political motivations and overlays) in a C-suite accountability environment, which she admits may be easier said than done.
I am glad to be a part of this tradition honoring Peter Henning's life. My post on last year's lecture can be found here. Peter was a mentor and friend and will always be missed. But this lecture series is one simple and consistent way to help keep his memory and work alive.
September 16, 2024 in Joan Heminway, White Collar Crime | Permalink | Comments (0)
Saturday, September 14, 2024
Why I'm Having More Fun Teaching Business Associations Than Ever Before
I didn't really think it through. I actually thought that teaching Business Associations (BA) online, would mean that I would have fewer students. I'm teaching online because I have two immunocompromised parents and I don't want to take any risks. But alas, I have 90 students this semester.
Not to brag, but I'm pretty good at teaching online. I haves some students who have taken three or four classes with me online and none of them are required. But I have never taught ninety online. That number is completely contrary to best practices for online teaching and learning.
I even tried to scare some students away. Before every semester, I ask all students to complete a Google form that helps me understand them a bit better. This lets me know how to pronounce their names, what experience they have in business, where they have worked, what classes they are taking, and what they are most interested in learning about. This survey helped me understand how many of them were taking BA and Evidence at the same time. Some masochists are taking BA, Evidence, and our Transactional Skills I course, which is incredibly time consuming. But alas, only two dropped.
I always count class participation and professionalism for 25% of the grade because I try to teach this class as a hybrid between skills and doctrinal. How do you do that with so many students? Here's what has helped so far.
- Yes, the students do case briefs. But I require them to brief the case as though they were talking to a business person in plain English. As they prepare to brief the case and consider what facts to include, I ask them to consider why a business person would care if they will never see this same fact pattern again? What does the jargon mean? What are the key takeaways? I tell them that if they can't explain it to a lay person, then they don't truly understand it.
- I also allow them to have co-counsel if they can't answer a question. I give the person discussing the case the chance to answer my curveball questions first and if they can't, I ask for volunteers as "co-counsel." This helps others stay involved and it gives them the chance to shine as well.
- The students now also explain the problem sets from the book that I used to go through with the class with me as the sage on the stage. The textbook I use is light on cases by design. In addition to reading cases, my students spend time looking at simplified agreements and answering questions about whether the parties involved can take certain actions based on the agreement and the relevant state statutes. It's painstaking sometimes, but it's more in line with what business lawyers will do. The more the students feel like they are doing "real work," the more engaged they are. Now they lead those discussions and I add more facts and steer them in the right direction when they don't get it. Statutory interpretation is hard for them, so I take the lead on that part.
- Even if we went through every case and problem in the book, I still wouldn't be able to have all students speak so I've now added a current events component. Students have to pick an item in the news that relates to what we are covering that week or something we have already covered. This requires them to read the news and apply what they have learned. They can also use a scene from a show like Billions, Succession, or some other show or movie and explain what the writers got right and what they got wrong based on what they've learned in class.
- I am also giving a midterm for the first time in a long time. Although the midterm will have multiple choice questions, I will have students look at past essay questions and issue spot for the class. I will do the same with past final exam questions when we do that review. When students "teach," they learn twice.
- As one credit of this four-credit class, my students must watch videos and answer questions in the videos prior to class because I used a flipped classroom method. I do most of the videos myself and draft the multiple choice and short answer questions so I have a good idea of what students do and don't understand. At the end of most of the videos, there is a discussion board where students can post questions about topics that they still don't understand. Rather than answering the questions myself, I now offer the opportunity for other students to answer them on a Google sheet. This gives students the chance to earn additional class participation points, especially those who don't like to raise their hands in class. And it saves me a ton of time.
- Another thing that saves me time? For the second half of the semester, I use videos from HotShot, a company that provides training videos to law firms and law schools. HotShot has videos from practicing lawyers, short quizzes, and cheat sheets so the students can learn the information in a different way from someone else. It also gives the students a leg up on some of their peers when they do internships and post-graduation jobs.
- I also use breakout rooms for students to brainstorm as though they are advising a fictional business. Each week so far, I've been adding new facts to the fact pattern so the students can apply what they have learned. And every time they use legalese, I tell them I don't understand. It's very hard to visit 20 breakout rooms, so I jump around. I also encourage them to email me with the names of their peers who provide particularly helpful insights in these sessions. Students have sent me lovely notes about their peers and this also helps them get to know each other. Breakout rooms help build community with such a large class.
- I also open the Zoom room 15 minutes before class for office hours. Some students come in just to hear what others say and sometimes we just sit there and talk about non-BA topics. I also hold office hours on weekends and at several times during the week so the students can build a relationship with me.
- I use the chat feature on Zoom a lot. Students answer a question of the day each class when they come in. Sometimes it relates to a case. Sometimes it relates to their other classes and what they are finding difficult. It's a nice way to get them engaged as soon as they enter the Zoom room. I also encourage them to use the chat during class. Some students raise their hands to answer questions before I even finish the sentence like it's Family Feud. Others are more comfortable answering the questions in the chat. Some are more comfortable asking questions in the chat. The chat feature is the great equalizer and I save them all.
- As an AI enthusiast and GC to an AI startup, I am a huge proponent of teaching students how to use generative AI. Some future assignments will have students show up to class and I will simulate a partner asking them to draft a short email to a client answering a question from our fictional client. Some of the students will be able to use AI and some will not. Then the class will point out what legal principles the students who used AI missed or got incorrect. The first time they use the AI, I won't give them any guidance. Throughout the semester, I will show them the best ways to use prompts to arrive at a better answer.
- Law students are often competitive. In the past, I have divided the students up into teams, and they have worked on projects as firms. As part of the final exam review, I do BA Jeopardy, where the teams answer multiple choice, short answer, and fill in the blank questions in a rapid fire style. If the team can't answer, I quickly move to the next team. And if they don't answer, then I answer. The team with the most points gets extra points toward their final grade. With ninety students, I will have students earn points as individuals. This will ensure that they are all prepared and have the chance to raise their grades in a fun way.
How are you making teaching more fun for yourself and more impactful for your students?
September 14, 2024 in Business Associations, Corporations, Current Affairs, Games, Law School, Lawyering, Marcia Narine Weldon, Teaching | Permalink | Comments (2)
Friday, September 13, 2024
What the world needs is a new podcast, amirite?
Well, Hurricane Francine passed through New Orleans, and left me with power (yay!) but no internet (boo!), which means I'm relatively helpless.
Still, I'll take this opportunity to announce that I've started a podcast, Shareholder Primacy, with Mike Levin (The Activist Investor). We're still working out what it wants to be, but our first episode is up (here on Apple, here on Spotify, here on YouTube) addressing the status of the Tesla compensation case, and the implications of the universal proxy.
Also, I'm very proud of this meme I made:
September 13, 2024 in Ann Lipton | Permalink | Comments (2)
Wednesday, September 11, 2024
Touro Law Hiring Announcement Includes Business Law Positions
Touro University Jacob D. Fuchsberg Law Center Seeking to Fill
Four Tenure Track Positions in Property, Business Organizations, Trusts and Estates, Tax, and Evidence
The Touro University Jacob D. Fuchsberg Law Center is pleased to announce that it is currently seeking outstanding applicants for four tenure-track appointments to its full-time faculty starting in August 2025. The law school welcomes applications from candidates interested in teaching Property, Business Organizations, Trusts and Estates, Tax, and Evidence.
Ideal candidates must have a J.D. degree from an ABA accredited law school and a commitment to teaching in an environment dedicated to excellence in teaching and mentoring of students. We look for innovative faculty with a preference for both practice and teaching experience. Applicants must demonstrate a commitment to service to legal education and to the wider community as well as a desire to engage in the intellectual life of the Law Center. With one of the most diverse student bodies in the country, Touro Law Center is dedicated to the aims of diversity and strongly encourages applications from women and minorities. Applicants are expected to be willing and capable of teaching in-person and remotely and familiar with best practices in both modalities.
Touro Law Center, a member of the Association of American Law Schools (AALS), is part of the Touro University. Established in 1970 to focus on higher education for the Jewish community, the Touro University has grown to serve a widely diverse population. We are uniquely attuned to the importance of an education for students of all backgrounds and circumstances.
Located on beautiful and historic Long Island with its many beaches, coastlines, and parks, Touro Law Center has a unique location directly across the street from the federal and state courts, providing substantial opportunities for teaching and learning. Within the New York City metropolitan area, we are a train ride to Manhattan and an even shorter train ride to JFK Airport.
If interested, all applicants must apply through the portal here.
Questions about the positions may be directed to Professor Laura Dooley, [email protected], Chair, Faculty Appointments Committee.
September 11, 2024 in Joan Heminway, Jobs | Permalink | Comments (0)
Tuesday, September 10, 2024
Maine Law Property and Clinical Business Law Faculty Openings
The University of Maine School of Law, in the thriving and increasingly diverse coastal community of Portland, Maine, invites applications for four full-time faculty positions to begin in 2025 – two doctrinal and two clinical. The Law School is particularly interested in doctrinal candidates whose focus includes criminal law and related subjects (including criminal procedure); and property law and related subjects (including land use and environmental law). The Law School is interested in clinical faculty to direct its Youth Justice Clinic and direct its new Business Law Clinic.
Applicants must possess a J.D. degree, an excellent academic record, a record or promise of high scholarly achievement (particularly for doctrinal positions), and a record or promise of successful teaching and mentoring students. Both lateral and entry level candidates will be considered. Rank and salary will be competitive and commensurate with qualifications and experience. Members of minority groups, women, and others whose background would contribute to the diversity of the Law School are encouraged to apply.
Application materials should include a cover letter, C.V., and research agenda. Please direct application materials and questions to the chair of the Appointments Committee, Professor Anthony Moffa, at the following email address: [email protected].
Review of applications will begin immediately and continue until the position is filled.
The University of Maine System is an EEO/AA employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, sexual orientation, age, disability, protected veteran status, or any other characteristic protected by law.
September 10, 2024 | Permalink | Comments (0)
Monday, September 9, 2024
SEALS Discussion Group - Physical Wellness for Law Profs
The Southeastern Association of Law Schools (SEALS) 2025 annual meeting is scheduled for July 26-Aug. 2 at the Omni Resort in Amelia Island, Florida.I am committed to conjure up ideas for business law panels and discussion groups at the conference. But before I approach that task, I want to follow up on Haskell's recent post, SEALS Conference Reflection -- Mind, Soul, and Body?, from August 28th.
In that post, Haskell made the following observations:
Traditionally, legal academics do an excellent job sharpening the mind. “Think like a lawyer” is a phrase even my colleagues across campus know. The soul gets much less attention at most schools, but that seems to be changing a bit, especially with increasing concerns for lawyer well-being.
The body, however, seems almost entirely neglected both at the SEALS Conference and at law schools nationwide. Yes, there were tennis and pickleball tournaments, but I don’t think there was a single panel related to the physical health of our students, faculty, and staff.
I know he's right. So, in the comments to his post, I suggested a SEALS discussion session on physical wellness. I want to start the process of putting together that session through this post.
The premise underlying the discussion group emanates from Haskell's post.
Physical wellbeing is a critical foundation to what we do. It is different for each of us based on our age, sex, gender, race, health history, genetic make-up, and more. Our ability to navigate or address challenges to our physical health over time impacts our capabilities and our happiness. By sharing our experiences and knowledge about physical wellbeing, we can make each other stronger.
So, will you join me in this SEALS discussion group? If so, let me know in the comments or by email. I look forward to hearing back and working with some of you on this important SEALS program. I appreciate Haskell's original post for planting a seed for this.
September 9, 2024 in Conferences, Joan Heminway | Permalink | Comments (0)
American Business Law Journal Currently Accepting Submissions
Dear BLPB Readers:
"The American Business Law Journal (ABLJ) is currently accepting submissions for Volume 62 (2025).
The ABLJ is a faculty-edited, double blind peer-reviewed journal, continuously published since 1963. The journal is ranked is ranked #2 in the 2023 Washington & Lee Law Journal Rankings for journals in Business, Corporations and Securities Law. It is ranked as an “A” journal by the Australian Business Deans Council.
Our mission is to publish only top quality law review articles and essays that make a scholarly contribution to all areas of law that impact business theory and practice, either U.S. or comparative in scope. We search for those articles that articulate a novel research question and make a meaningful contribution directly relevant to scholars and practitioners of business law. The blind peer-review process means legal scholars well-versed in the relevant specialty area have determined selected articles are original, thorough, important, and timely, and peer editors provide expert feedback and support throughout the editorial process.
September 9, 2024 in Call for Papers, Colleen Baker | Permalink | Comments (0)
Saturday, September 7, 2024
In Which Elon Musk Once Again Becomes a Classroom Hypothetical
This time, it’s Brazil.
If you’re not following the saga, the story is apparently that ex-Twitter, now controlled by Elon Musk (not the CEO, though; you can’t even really say he’s the owner without qualifying about the interests of other investors and – don’t forget – the debtholders), ignored the order of Brazilian Supreme Court Justice Alexandre de Moraes to remove certain accounts associated with hate speech and misinformation. Apparently out of fear that Twitter’s Brazilian employees would be arrested, Twitter shut down its Brazilian offices. At that point, Twitter was out of compliance with a Brazilian requirement that a legal representative be present in the country. So, Justice de Moraes ordered that access to Twitter be blocked throughout Brazil. (Legal challenges to that order continue)
That’s not great for Twitter, but it turns out, it was even worse for Starlink, a wholly-owned subsidiary of Musk-controlled SpaceX, because the Justice ordered that Starlink’s financial accounts be frozen in order to force payment of fines owed by Twitter. Musk at first insisted that he would not block access to Twitter via Brazilian Starlink, then – on that point – relented. Shortly thereafter, it was reported SpaceX was evacuating its personnel from the country. As the Wall Street Journal put it, “Starlink’s entanglement in a dispute originally about X is a stark illustration of how some government officials around the world may draw few distinctions between enterprises that Musk runs.”
So, all of this has the makings of a great introductory classroom discussion of corporate separateness, enterprise liability, and veil-piercing. I have no idea what the law on this is in Brazil, but let’s talk about how we’d analyze this under American law.
(more under the jump)
September 7, 2024 in Ann Lipton | Permalink | Comments (0)
Friday, September 6, 2024
2025 AALS Pedagogy Panel -- Transactional Law and Skills
The AALS Section on Transactional Law & Skills is pleased to announce a session at the 2025 AALS Annual Meeting in San Francisco, C.A.
Pedagogy Panel on Experiential Exercises in Business Law
We invite submissions for a panel that highlights experiential exercises in business law. Exercises might include, for example, contract drafting, transactional research, mock negotiations, or other exercises that would fit into a law school course. We invite speakers to share exercises with the panel, to discuss how they facilitate and/or grade the exercises, and/or to teach a short mock version of their exercise during the panel.
Please submit a short proposal and/or a draft of the exercise you would like to present to Professor Benjamin Edwards ([email protected]) on or before Friday, September 20th. Authors should include their name and contact information in their submission email but remove all identifying information from their submission. Please include the words “AALS – Transactional Pedagogy” in the subject line of your submission email. Papers will be selected after review by members of the Executive Committee of the Transactional Law & Skills Section. Presenters will be responsible for paying their registration fee, hotel, and travel expenses.
Please direct any questions to Benjamin Edwards.
September 6, 2024 | Permalink | Comments (0)
