Tuesday, August 27, 2019

Business Law and Leadership

Back in April, I posted on a leadership conference focusing on lawyers and legal education, sponsored by and held at UT Law.  I also posted earlier this summer on the second annual Women's Leadership in Legal Academia conference.  I admit that I have developed a passion for leadership literature and practices through my prior leadership training and experiences in law practice and in the legal academy.

Because lawyers often become leaders in and through their practice (both at work and their other communities) and because leadership principles interact with firm governance, I want to make a pitch that we all, but especially all of us teaching business associations (or a similar course), focus some attention on leadership in our teaching.  It is a nice adjunct to governance.  For example, management and control issues, especially director/officer processes in corporations, are a logical place to discuss leadership.  Who are the managers and the rank-and-file employees inspired by in managing and sustaining the firm?  Who is able to persuade the board to take action?  Is it because of that person's authority, or does that person hold a trust relationship with others that motivates them to follow?  And speaking of trust, it is an element of both leadership and fiduciary duty . . . .

As you consider my teaching suggestion, I offer you my latest blog post on our Leading as Lawyers blog.  It involves the importance of process to effective leadership.  The bottom line?

One can have a promising vision and strategy that emanate from the best of all intentions and ideas. But without engaging a process that includes effectual communication and input from, candid interchanges with, expressions of appreciation for, and buy-in from the relevant affected populations, those worthy intentions may be misinterpreted and those good ideas may die on the vine or not be implemented effectively.

We have all seen this happen in business governance.  Let's let our students in on the role that leadership plays in the practical application of business law.  It is bound to inform both their law practice and their lives.

August 27, 2019 in Business Associations, Corporate Governance, Joan Heminway, Lawyering, Teaching | Permalink | Comments (4)

Tuesday, August 20, 2019

The City University of New York (CUNY) School of Law - Business Law Professor Position

The City University of New York (CUNY) School of Law seeks highly-qualified candidates for a tenured or tenure-track faculty appointment to begin in Fall 2020. The principal responsibility of this faculty member will be to teach business law related courses, including Business Associations, U.C.C. Survey, and Contracts. All faculty are also expected to teach our first-year Lawyering course on a rotating basis, and all faculty are expected to teach in both the day and evening programs on a rotating basis.

CUNY SCHOOL OF LAW: "LAW IN THE SERVICE OF HUMAN NEEDS"

CUNY School of Law is a national leader in progressive legal education: we are ranked first in the country for public interest law and third in the county for clinical programs, and we are one of the most diverse law schools in the nation.

Our mission at CUNY School of Law is two-fold: training public interest attorneys to practice law in the service of human needs; and providing access to the profession for members of historically underrepresented communities. The Law School advances that mission though an innovative curriculum that brings together the highest caliber of clinical training with traditional doctrinal legal education to train lawyers prepared to serve the public interest. The basic premise of the law school's program is that theory and abstract knowledge cannot be separated from practice, practical skill, professional experience and the social, cultural, and economic context of law. The curriculum therefore integrates practical experience, professional responsibility, and lawyering skills with doctrinal study at every level.

QUALIFICATIONS

 Successful candidates will have:

a)      J.D., L.LB., or Ph.D in a law-related discipline;

b)      admission to law practice;

c)      social justice lawyering experience;

d)      a demonstrated commitment to the mission of CUNY School of Law;

e)      availability and willingness to teach in the day and evening programs on a rotating basis;

f)       availability and willingness to teach the first-year Lawyering course on a rotating basis (experience teaching legal writing preferred);

g)      commitment to scholarly engagement (established scholarly record preferred);

(a)   a demonstrated commitment to excellent teaching (ability to teach in both a classroom and clinical setting preferred); and

(b)   demonstrated success as a faculty member, including the ability to collaborate with others and share responsibility for committee and department assignments.

COMPENSATION

CUNY offers faculty a competitive compensation and benefits package covering health insurance, pension and retirement benefits, paid parental leave, and savings programs. We also provide mentoring and support for research, scholarship, and publication as part of our commitment to ongoing faculty professional development.

HOW TO APPLY

Interested candidates should apply at www.cuny.edu by accessing the employment page, logging in or creating a new user account, and searching for this vacancy using the Job ID (20886) or Title (Assistant, Associate, or Full Professor of Law) then selecting "Apply Now" and providing the requested information. (Link at : 
https://cuny.jobs/queens-ny/assistant-associate-or-full-professor-of-law/07654EF690374350BED697DD5EBAE1F4/job/)

The application requires a CV/resume and a cover letter, indicating the position to which you are applying.

August 20, 2019 in Business Associations, Corporations, Haskell Murray, Jobs, Law School | Permalink | Comments (1)

Wednesday, August 14, 2019

Business Law Professor Jobs - Posted in 2019-20

This is my fifth year compiling a list of open business law professor positions in law schools and other settings (mostly business schools).

See the 2018-19, 2017-18, 2016-17, 2015-16 (law schools; business schools), and 2014-15 (law schools, business schools) lists to get a sense of what the market for business law professors has looked like over the past few years.

I will likely update this list from time to time; feel free to e-mail me with additions. Updated 9/11/19.

Law School Professor Positions – Business Area Identified

  1. Chicago-Kent
  2. City University of New York (CUNY)
  3. Emory University 
  4. Northeastern University
  5. Ohio State University
  6. Pennsylvania State University
  7. Samford University
  8. Southern Illinois University
  9. Suffolk University (transaction legal clinic)
  10. University of Akron
  11. University of California-Davis (transaction legal clinic)
  12. University of Cincinnati
  13. University of Dayton
  14. University of Kansas
  15. University of Kentucky
  16. University of Massachusetts - Dartmouth
  17. University of Memphis
  18. University of Nebraska
  19. University of Richmond
  20. University of Wisconsin
  21. Vanderbilt University
  22. Washington University (St. Louis)
  23. Wayne State University

Legal Studies Professor Positions (Mostly Business Schools)

  1. Boise State University
  2. California State University-Los Angeles (real estate law focus)
  3. California State University-Northridge
  4. Christopher Newport University
  5. Hagerstown Community College
  6. Ithaca College (full-time, non-tenure track)
  7. Morgan State University
  8. Sam Houston State University (2 positions)
  9. St. Bonaventure University (spring 2020 start)
  10. Texas State University
  11. Tulane University (visiting lecturer, full-time, non-tenure track)
  12. University of Georgia
  13. University of North-Texas (full-time, non-tenure track)
  14. U.S. Air Force Academy (visiting professor)
  15. Wake Forest University (full-time, non-tenure track)
  16. Wenzhou-Kean University (China)

August 14, 2019 in Business Associations, Business School, Corporations, Haskell Murray, Jobs, Law School | Permalink | Comments (0)

Tuesday, July 30, 2019

University of Georgia, Terry College of Business Assistant or Associate Professor of Legal Studies Department of ILSRE 

University of Georgia, Terry College of Business Assistant or Associate Professor of Legal Studies Department of ILSRE 

The Department of Insurance, Legal Studies and Real Estate in the Terry College of Business at The University of Georgia invites applications for a full-time tenure-track or tenured faculty position of Legal Studies at the assistant or associate professor level, beginning Fall 2020. 

Candidates must hold a juris doctorate or equivalent degree. For appointment at the assistant professor rank, strong communication skills and demonstrated potential for excellent teaching and high quality research is preferred. For appointment as an associate professor, a research record commensurate with rank and demonstrated excellence in teaching legal studies at the graduate and/or undergraduate level also are required. For information regarding the requirements for each faculty rank, please see the University of Georgia Guidelines for Appointment, Promotion & Tenure (https://provost.uga.edu/_resources/documents/UGA_Guidelines_for_APT_4_2017_online.pdf) and the Promotion & Tenure guidelines for the Terry College of Business (https://provost.uga.edu/_resources/documents/Business_2015.pdf). To be eligible for tenure on appointment, candidates must be appointed as an associate professor, have been tenured at a prior institution, and bring a demonstrably national reputation to the institution. Candidates must be approved for tenure upon appointment before hire. 

Participation in service activities appropriate to the rank is expected. Salary is competitive and commensurate with qualifications. 

Applications received by September 20, 2019, are assured of consideration; however, applications will continue to be accepted until the position is filled. Interested candidates should upload a cover letter, a full vitae, and contact information for three references (including email addresses) to http://www.ugajobsearch.com/postings/106535. The department will reach out to your references at the appropriate time in the process. No additional materials will be considered. Applications submitted in other ways will not be considered. 

The University of Georgia is located in Athens, Georgia. Georgia is well known for its quality of life with both outdoor and urban activities (www.georgia.gov). UGA is a land grant/sea grant institution located approximately 60 miles northeast of Atlanta (www.uga.edu). 

The University of Georgia is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, ethnicity, age, genetic information, disability, gender identity, sexual orientation or protected veteran status. Persons needing accommodations or assistance with the accessibility of materials related to this search are encouraged to contact Central HR (hrweb@uga.edu). Please do not contact the department or search committee with such requests. 

July 30, 2019 in Business Associations, Business School, Haskell Murray, Jobs | Permalink | Comments (0)

Monday, July 29, 2019

Social Enterprise Lawyering: More Than Mere Legal Competence is Required . . . .

For last year's Business Law Prof Blog symposium at UT Law, I spoke on issues relating to the representation of business firms classified or classifiable as social enterprises.  Last September, I wrote a bit about my presentation here.  The resulting essay, Lawyering for Social Enterprise, was recently posted to SSRN.  The SSRN abstract follows.

Social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Moreover, the law governing social enterprises also is unclear and unpredictable in respects. This essay identifies two principal areas of uncertainty and demonstrates their capacity to generate lawyering challenges and related transaction costs around both entity formation and ongoing internal governance questions in social enterprises. Core to the professionalism issues are the professional responsibilities implicated in an attorney’s representation of social enterprise businesses.

To illuminate legal and professional responsibility issues relevant to representing social enterprises, this essay proceeds in four parts. First, using as its touchstone a publicly available categorization system, the essay defines and describes types of social enterprises, outlining three distinct business models. Then, in its following two parts, the essay focuses in on two different aspects of the legal representation of social enterprise businesses: choice of entity and management decision making. Finally, reflecting on these two aspects of representing social enterprises, the essay concludes with some general observations about lawyering in this specialized business context, emphasizing the importance of: a sensitivity to the various business models and related facts; knowledge of a complex and novel set of laws; well-practiced, contextual legal reasoning skills; and judgment borne of a deep understanding of the nature of social enterprise and of clients and their representatives working in that space.

I hope that this essay is relatable and valuable to both academics and practicing lawyers.  Feedback is welcomed.  So are comments.  

Also, I will no doubt be talking more about aspects of this topic at a SEALS discussion group later this week entitled "Benefit Corporation (or Not)? Establishing and Maintaining Social Impact Business Firms," which I proposed for inclusion in this year's conference and for which I will serve as a moderator.  The description of the discussion group is as follows:

As the benefit corporation form nears the end of its first decade of "life" as a legally recognized form of business association, it seems important to reflect on whether it has fulfilled its promise as a matter of legislative intent and public responsibility and service. This discussion group is designed to take on the challenge of engaging in that reflective process. The participating scholars include doctrinal and clinical faculty members who both favor and tend to recommend the benefit corporation form for social enterprises and those who disfavor or hesitate to recommend it.

As you can see from the SEALS program for the meeting, the participants represent both academics (doctrinal and clinical) and practitioners who care about social enterprise and entity formation.   If you are at SEALS, please come and join us!

July 29, 2019 in Business Associations, Compliance, Conferences, Corporate Governance, Corporations, Joan Heminway, Lawyering, Social Enterprise | Permalink | Comments (4)

Tuesday, July 9, 2019

Tennessee Court Subtly Affirms that LLCs Are Not Corporations

A recent Tennessee court decision subtly notes that limited liability companies (LLCs) are not, in fact corporations. In a recent Tennessee federal court opinion, Judge Richardson twice notes the incorrect listing of an LLC as a "limited liability corporation."  

First, the opinion states:

The [Second Amended Complaint] alleges that Defendant Evans is a resident of Tennessee, Defendant #AE20, LLC is a California limited liability company, and Defendant Gore Capital, LLC is a Delaware limited liability “corporation.”3

Gore Capital is in fact a limited liability company.

FERNANDO CAMPS, Pl., v. GORE CAPITAL, LLC, KARL JAMES, ANGELA EVANS, and #AE20, LLC, Defendants., 3:17-CV-1039, 2019 WL 2763902, at *1 and n.3 (M.D. Tenn. July 2, 2019) (emphasis in original). 

Judge Richardson later notes, in footnote 11:

Plaintiff states that he was sent documents that listed Gore’s (not #AE20’s) principal place of business as being in Chattanooga, Tennessee, although the SAC lists Gore as a “Delaware limited liability corporation (sic)[.]”
Id. 2019 WL 2763902, at *6 n.11 (M.D. Tenn. July 2, 2019). 
 
Given all the times I have complained about courts not correcting such mistakes, I figured I should give this opinion a well-deserved shout out for getting this right.  Thank you. 

July 9, 2019 in Business Associations, Corporations, Current Affairs, Joshua P. Fershee, Litigation, LLCs | Permalink | Comments (1)

Friday, May 24, 2019

Scooters and the Difficulty of Measuring Social Value

Bird

"Bird Scooter" by mikecogh is licensed under CC BY-SA 2.0 

Here in Nashville, Mayor David Briley announced that he is seeking to ban scooters. This announcement follows the first scooter-related death in the city.

Currently, I am working on a project that looks at how social value is measured and reported. As I dig deeper, I am becoming even more convinced that measuring social value may be too difficult for us to do well.

Let’s take scooters as an example. How would you measure (and report) the social value of these scooter companies? How many points should a “third-party standard” assign for the jobs created, for the gasoline saved, for the affordable transportation provided, for the fun produced? How many points should you subtract for a death, for injuries, for obstructing sidewalks? In the language of the Model Benefit Corporation Legislation, how do you know if a scooter company is producing “[a] material positive impact on society and the environment, taken as a whole”?

Over the past few weeks, I’ve been diving into the B Impact Assessment, (which is the top third-party standard used by benefit corporations) and, frankly, the points assigned seem somewhat arbitrary and easy for companies to manipulate. In my opinion, almost any company, including a scooter company, could get the 80+ points needed to qualify as a certified B corp. if they learned and worked the system a bit (and, as most readers know, you don’t even have to be certified to become a benefit corporation under the state statutes.)

I know bright people who would emphatically argue that scooter companies create a “material positive impact,” and I know bright people who think scooter companies are socially destructive. Social reporting does not have to be totally useless; it would be interesting to have the data on scooter usage (how many people are using them for their commute, what is the injury rate relative to cars, etc?). But the total amount of social value is not easily reduced to numbers and social reports. Given the nuance of each decision, the various externalities, and the difficulty in quantifying the social impact, I have previously suggested giving stakeholder representatives certain governance rights (such as the ability to elect and sue the board of directors). This way, directors will be more likely to consider each stakeholder group when making decisions.

May 24, 2019 in Business Associations, CSR, Haskell Murray, Legislation, Social Enterprise | Permalink | Comments (1)

Wednesday, May 22, 2019

Exam Grading -- No LLCs as Corporations (So Far)

It has been kind of a unique end of the semester, and I am working feverously to get through my Business Organizations exams. I'm getting there.  So far, I have had zero exams reference a "limited liability corporation."  If this holds, it will be at least three years in a row.  

I have had a couple of folks refer to LLC veil piercing as piercing the "corporate" veil (another no-no), and I did have some other "corporate" references to LLCs (e.g., "an LLC's corporate formalities"), so we're not all the way there. But so far, I am seeing improvement, and I appreciate the effort.  

Here's hoping for 48 of 48 describing the LLC (as an entity) correctly.  I hope the rest of my colleagues are holding up well here in the home stretch. Good luck to all. 

May 22, 2019 in Business Associations, Corporations, LLCs, Teaching | Permalink | Comments (0)

Tuesday, April 9, 2019

Court Says No Successor Liability Attaches When There Was No Entity

A 2017 opinion related to successor liability just posted to Westlaw.  The case is an EEOC claim "against the Hospital of St. Raphael School of Nurse Anesthesia (“HSR School”) and Anesthesia Associates of New Haven (“AANH”), alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 . . . ." The plaintiff was seeking to join Yale New Haven Hospital (“YNHH”). MARGARITE CONSOLMAGNO v. HOSPITAL OF ST. RAPHAEL SCHOOL OF NURSE ANESTHESIA and ANESTHESIA ASSOCIATES OF NEW HAVEN, P.C., 3:11CV109 (DJS), 2017 WL 10966446, at *1 (D. Conn. Mar. 27, 2017). 

 
 
Apparently, the HSR School trained nurse anesthetists was owned and run by AANH a Connecticut “professional corporation.”  The plaintiff was in the HSR School for about six months before she was dismissed, she claimed, because of " gender discrimination and retaliation for reporting a staff member’s inappropriate sexual conduct." Id. The plaintiff sought to join YNHH because that entity took over running an anesthesia school that had been, in some form, the HSR school.  
 
The successor liability part is rather interesting, though largely devoid of facts from the transaction.  The court ultimately concludes that even though YNHH resumed a similar school, it was not a successor entity and could not be joined.  
 
A challenging part about the case is that entities are described, but often not clearly and with conflicting entity-type language.  For example, although AANH was a "professional corporation," the court explained that " [t]he AANH anesthesiologists, who were also partners in AANH, were responsible for deciding how the HSR School would operate." Id. at *2. One of the doctors was also referred to as an "ownership partner in AANH." Id. at *3. I suspect that anesthesiologists, like lawyers, traditionally created firms that were partnerships, so the principals often call themselves "partners," regardless of their actual entity type. Still, it would be nice for courts to clarify the actual roles of those involved.  
 
Furthermore, in describing the HSR School, the court states, 
 
There is no evidence that the HSR School had an existence that was independent of AANH. In fact, the HSR School was going to cease operating due to the fact that AANH was going to cease operating. The HSR School was not a limited liability corporation (“LLC”), private corporation (“P.C.”), or other legal entity registered with the Connecticut Secretary of State. (Tr. 141-142). There is no evidence that the HSR School had its own assets, bank account, or tax identification number. There is no evidence that the HSR School itself (as opposed to AANH) ever paid anyone for rendering services to the HSR School. There is no evidence that anyone other than AANH had operated the HSR School. Consequently, the Court finds that the predecessor in interest, for the purpose of assessing successor liability, is AANH.
Id. at *6. Ultimately, it appears the court has determined this was some version of an asset purchase  (even though neither party provided a copy of the asset purchase agreement), so the liability stayed with AANH.  This appears to be correct, but it's hard to know without that document.
 
And it is hard to know what the obligations are when additional relevant possible parties are.  The court further determined that the potential successor entities, "YNHH and Yale University are two separate corporate entities with separate governance structures."  Except there is no statement as to what types of entities they are, where they were formed, or anything else other than a reference to testimony from a witness who said YNHH was a separate entity from Yale University.  It would seem to me that some of the related documentation would be valuable, but the court has spoken.  
 
And fair enough. But I have to correct this: "The HSR School was not a limited liability corporation company (“LLC”), private professional corporation (“P.C.”), or other legal entity."  

April 9, 2019 in Business Associations, Corporations, Joshua P. Fershee, Lawyering, LLCs, M&A, Partnership | Permalink | Comments (0)

Friday, March 8, 2019

Call for Papers: Finance for Sustainability (Daughters of Themis)

Received today from BLPB friends Beate Sjåfjell and María Jesús Muñoz Torres:

Happy International Women’s Day! We celebrate this day by issuing the call for papers for the 5th international workshop of Daughters of Themis: International Network of Female Business Scholars. The theme is Finance for Sustainability; a highly topical theme! The deadline is 26 March, and we hope that the brief window of opportunity will be large enough for all interested to respond.

We appreciate if you would circulate this call to any interested colleagues identifying as female business scholars, including junior scholars (PhD candidates) as well as colleagues in lower-income countries. Please note that we this year do have some, very limited, funds available so that we can contribute to the funding for one or two participants based on financial hardship.

For those unfamiliar with Daughters of Themis: our annual workshop is the heart of our network, and you can read more here, reporting back from our three last workshops here: 2018, 2017 and 2016.

Please feel free to contact Beate or María Jesús with any questions you might have.

Unfortunately, this workshop overlaps a bit with the Grunin Center's annual conference (which focuses in on "Legal Issues in Social Entrepreneurship and Impact Investing").  But if you are a business finance/law person who focuses on sustainability, you should be at one event or another!  

March 8, 2019 in Business Associations, Call for Papers, Conferences, Corporate Finance, Joan Heminway, Social Enterprise | Permalink | Comments (0)

Wednesday, February 13, 2019

Research Colloquium - Call for Papers - Law and Ethics of Big Data - Lexington, VA

Posted by request. Looks like a good event:

---------------------------------------

Law and Ethics of Big Data
Hosted and Sponsored by:
Washington and Lee University School of Law
Lexington, Virginia


Co-Hosted by:
Kenan Institute for Ethics, Duke University; The Virginia Tech Center for Business Intelligence Analytics; The
Department of Business Law and Ethics, Kelley School of Business, Indiana University Bloomington


Wednesday-Thursday, April 24-25, 2019

Abstract Submission Deadline: Friday, March 1, 2019

We are pleased to announce the annual research colloquium, “Law and Ethics of Big Data,” which will be held this
year at Washington and Lee University School of Law in Lexington, Virginia. This year’s colloquium is co-hosted
by Associate Professor Margaret Hu at Washington and Lee University School of Law and Kenan Visiting Professor
at Duke University’s Kenan Institute for Ethics, Associate Professor Angie Raymond of Indiana University, and
Professor Janine Hiller of Virginia Tech.

Due to the success of this multi-year event that now is in its sixth year, the colloquium will be expanded and we seek broad participation from multiple disciplines. Please consider submitting research that is ready for the discussion stage. Each paper will receive detailed constructive critique. We are targeting cross-discipline opportunities for colloquium participants.

Examples of topics appropriate for the colloquium include: Ethical Principles for the Internet of Things, Intellectual Property and Data Intelligence, Bribery and Algorithms, Ethical Use of Big Data, Health Privacy and Mental Health, Employment and Surveillance, National Security, Civil Rights, and Data, Algorithmic Discrimination, Smart Cities and Privacy, Cybersecurity and Big Data, and Data Regulation. The organizers have a special interest in papers focused on the law and ethics of Artificial Intelligence. We seek a wide variety of topics that reflects the broad ecosystem created by ubiquitous data collection and use, as well as its impacts on society.

TENTATIVE Colloquium Details:
• The colloquium begins at 9:00 am with breakfast on April 24 and concludes at ~1:00 pm at the conclusion of lunch on April 25. The University will host a research colloquium dinner on April 24. Breakfast and lunch will be provided at Washington and Lee University on April 24-25.
• Approximately 40 minutes is allotted for discussion of each paper presentation; 5-10 minutes for an introductory presentation by the discussant, followed by 30-35 minutes of group discussion. Authors will not present their own papers to the group; rather, a paper discussant presents the work and leads the group dialogue that follows.
• Manuscripts will be circulated among participants only.
• Participants agree to read and be prepared to participate in the discussion of all papers. Each author may be asked to lead discussion of one other submitted paper.
• A limited number of participants will be provided with lodging, and all participants will be provided meals during the colloquium. Travel and all other expenses will be individually assumed by each participant.

Submissions: To be considered, please submit an abstract of 500-750 words to Margaret Hu at hum@wlu.edu no later than Friday, March 1, 2019. Abstracts will be evaluated based upon the quality of the abstract and the topic’s fit with the theme of the colloquium and other presentations. Questions may be directed to Margaret Hu (hum@wlu.edu), Angie Raymond (angraymo@indiana.edu), or Janine Hiller (jhiller@vt.edu). If you are interested in being a discussant, but do not have a paper to present, please send a statement of interest to the same.

Authors will be informed of the decision by Friday, March 8, 2019. If accepted, the author agrees to submit a discussion paper by Friday, April 12, 2019. While papers need not be in finished form, drafts must contain enough information and structure to facilitate a robust discussion of the topic and paper thesis. Formatting can be either APA or Bluebook. In the case of papers with multiple authors, only one author may present at the colloquium.

February 13, 2019 in Business Associations, Ethics, Haskell Murray, Research/Scholarhip | Permalink | Comments (0)

Tuesday, January 22, 2019

Back to Basics: The Reciprocal Nature of Agency and Partnership Relationships

In Business Organizations, I am in the early part of teaching agency and partnership. In my last class, we discussed Cargill, which is a fairly typical case to open agency discussions.  I like Cargill, and I think it is a helpful teaching tool, but I think one needs to go beyond the case and facts to give a full picture of agency. 

Of note, the case deals only with "actual agency" -- for whatever reason, the plaintiffs did not argue "apparent agency" or estoppel in the alternative.  A. Gay Jenson Farms Co. v. Cargill, Inc., 309 N.W.2d 285, 290 n.6 (Minn. 1981) (“At trial, plaintiffs sought to establish actual agency by Cargill's course of dealing between 1973 and 1977 rather than 'apparent' agency or agency by estoppel, so that the only issue in this case is one of actual agency. ”). I think this explains a lot about how the case turns out.  That is, the court recognized that to find for the farmer, there had to be an actual agency relationship.  

I don't love this outcome because one of the hallmarks of an agency relationship is its reciprocal nature. That is, once we find an agency relationship, the principal is bound to the third party and the third party is bound to the principal. In contrast, in a case of estoppel, the principal may be bound (estopped from claiming there is not an agency relationship), but that finding only runs one way. The principal still cannot bind the third party.  

This is a problem for me in Cargill. That is, I don't see a scenario where a court would bind the farmers to Cargill on similar facts. (I know I am not the first to make this observation, but it seemed worth exploring a bit.) As such, I don't think it can rightly be deemed an agency relationship.  

Assume the facts from the case to show agency, but suppose instead Cargill was suing the farmers because the grain prices had increased dramatically and that the farmers had a contract with Warren (the purported agent) to deliver grain at $5/bushel.  However, spot prices were now $15/bushel.  Warren had not paid the farmers for a prior shipment and did not have the ability to pay now. If the contract is with Warren, the farmers should be able to now sell that grain in the market and take the extra $10/bushel for themselves.  However, if Cargill were really the principal on that contract, Cargill would have a right to buy it at $5/bushel.  I just don't see a court making such a ruling on these facts.  

For what it's worth, I do think there is an estoppel argument here, and I think the Cargill court had ample facts to support finding Cargill a guarantor through other actions (promises to pay, name on checks, etc.), some of which might support an apparent authority argument, too. But because I don't see this relationship as an agency relationship as a two-way street, I don't think it can be an "actual agency" relationship. 

Incidentally, I see this reciprocal nature test as proper for partnerships, too.  That is, unless a court, on similar facts, would be willing to find a partnership where it works to the detriment of the plaintiffs, one cannot find a partnership.  Think, for example, of another classic case, Martin v. Peyton, 246 N.Y. 213 (N.Y. 1927).  There, creditors of the financial firm KNK sued KNK, as well as Peyton, Perkins, and Freeman (PPF) who had loaned KNK money. The claim was that PPF was not a mere lender, but had instead become partners of KNK because of the amount of control and profit sharing included in the loan arrangement.  If PPF were deemed partners of KNK, of course, PPF would be liable to the KNK creditors.  Here, the court determines that no partnership exists.  

While a reasonably close call,  I think this is right.  I don't think, based on a similar set of facts, that a court would find for PPF if the dispute were such that finding a partnership between PPF and KNK would reduce the amount KNK would pay its investors. If it can't run both ways, the partnership cannot exist.  I appreciate that in some cases, there simply is not a good analog to test the reciprocal nature of the relationship.  But where it's possible, I think this is a good test to determine whether there really is an agency or partnership relationship or if, instead, what we really have is a sympathetic plaintiff.   

 

January 22, 2019 in Agency, Business Associations, Joshua P. Fershee, Partnership, Teaching | Permalink | Comments (5)

Friday, December 7, 2018

Delaware Supreme Court Affirms Triggering of MAE Clause

In Hexion Specialty Chemicals, Inc. v. Huntsman Corp., 965 A.2d 715, 730 (Del. Ch. 2008) – a case I worked on as a judicial clerk – the court wrote, “[m]any commentators have noted that Delaware courts have never found a material adverse effect to have occurred in the context of a merger agreement.”

That statement is no longer true.

Today--in a 3 page opinion--the Delaware Supreme Court affirmed the 240+ page opinion by Vice Chancellor Travis Laster in Akorn, Inc. v. Fresenius Kabi, AG, et al., which held that Akorn triggered the Material Adverse Effect ("MAE") clause of the merger agreement at issue.

As the Chancery Daily reports, and as is clear looking at the recent opinions, the Delaware Supreme Court opinion does not provide much reasoning for its decision to affirm, but the Court of Chancery opinion does provide plenty of guidance. In the first few pages, the Court of Chancery notes that Akorn experienced a "dramatic, unexpected, and company-specific downturn in...business that began in the quarter after signing." The Court of Chancery also notes the importance of whistleblower letters and issues with Akron and the FDA. 

Also of interest, the court notes that this was an expedited case -- a real benefit of the Delaware Court of Chancery. The parties only had 11 weeks leading up to the trial. At the five day trial, there were 54 depositions transcripts lodged, 1,892 exhibits introduced into evidence, and 16 live witnesses (including 7 experts). Those poor lawyers -- and judicial clerks! 

December 7, 2018 in Business Associations, Contracts, Delaware, Haskell Murray, Lawyering, M&A | Permalink | Comments (0)

Friday, November 9, 2018

The Cambridge Handbook of Social Enterprise Law

The Cambridge Handbook of Social Enterprise Law, edited by Ben Means (South Carolina) and Joe Yockey (Iowa) is at the printers and should be ready for orders in early 2019. 

My fellow BLPB editor Joan Heminway and I both have chapters in the book, along with many others. 

The introduction is posted on SSRN, for those who are interested. Also, editor Ben Means has many talents, as he did the cover artwork below as well.

The Cambridge Handbook of Social Enterprise Law_Cover

November 9, 2018 in Business Associations, Corporate Governance, Haskell Murray, Joan Heminway, Research/Scholarhip, Social Enterprise | Permalink | Comments (0)

Sunday, October 21, 2018

5th Conference of the French Academy of Legal Studies in Business - June 20-21 - Paris

5th Conference of the French Academy of Legal Studies in Business (Association Française Droit et Management)

June 20 and 21, 2019 – emlyon - Paris Campus

CALL FOR PAPERS 2019 Social Issues in Firms

Social issues and fundamental rights occupy an increasingly important space in the governance of today’s companies. Private enterprises assume an increasingly active role not only in a given economy but also in society as a whole. Firms become themselves citizens. They recognize and support civic engagement by the men and women who work for them. Historically, the role of the modern firm that resulted from the Industrial Revolution has been torn between two opposing viewpoints.

[More information under the break.]

Continue reading

October 21, 2018 in Business Associations, Business School, Call for Papers, Conferences, Corporate Governance, Corporations, Ethics, Haskell Murray, International Business, International Law, Management, Research/Scholarhip | Permalink | Comments (0)

Monday, October 8, 2018

Poking the SEC Bear

BLPB reader Tom N. sent me a link to this article last week by email.  The article covers Elon Musk's taunting of the U.S Securities and Exchange Commission (SEC) in a post on Twitter.  The post followed on the SEC's settlement with Musk and Tesla, Inc. of a legal action relating to a prior Twitter post. The title of Tom N.'s message?  "Musk Pokes the Bear in the Eye."  Exactly what I was thinking (and I told him so) when I had read the same article earlier that day!  This post is dedicated to Tom N. (and the rest of you who have been following the Musk affair).

Last week, I wrote about scienter issues in the securities fraud allegations against Elon Musk, following on Ann Lipton's earlier post on materiality in the same context.  This week, I want to focus on state corporate law--specifically, fiduciary duty law.  The idea for this post arises from a quotation in the article Tom N. and I read last week.  The quotation relates to an order from the judge in the SEC's action against Musk and Tesla, Alison Nathan, that the parties jointly explain and justify the fairness and reasonableness of their settlement and why the settlement would not hurt the public interest.  Friend and Michigan Law colleague Adam Pritchard offered (as quoted in the article): “She may want to know why Tesla is paying a fine because the CEO doesn’t know when to shut up.”  Yes, Adam.  I agree.

What about that?  According to the article, the SEC settlement with Musk and Tesla "prevents Musk from denying wrongdoing or suggesting that the regulator’s allegations were untrue."  The taunting tweet does not exactly deny wrongdoing or suggest that the SEC's allegations against him were untrue.  Yet, it comes close by mocking the SEC's enforcement activities against Musk and Tesla.  Musk's action in tweeting negatively about the SEC is seemingly--in the eyes of a reasonable observer--an intentional action that may have the propensity to damage Tesla.  

At the very least, the tweet appears to be contrary to the best interests of the firm.  But is it a manifestation of bad faith that constitutes a breach of the duty of loyalty under Delaware law?  As most of us well know, 

[b]ad faith has been defined as authorizing a transaction "for some purpose other than a genuine attempt to advance corporate welfare or [when the transaction] is known to constitute a violation of applicable positive law." In other words, an action taken with the intent to harm the corporation is a disloyal act in bad faith. . . . [B]ad faith (or lack of good faith) is when a director acts in a manner "unrelated to a pursuit of the corporation's best interests." It makes no difference the reason why the director intentionally fails to pursue the best interests of the corporation.

Bad faith can be the result of "any emotion [that] may cause a director to [intentionally] place his own interests, preferences or appetites before the welfare of the corporation," including greed, "hatred, lust, envy, revenge, . . . shame or pride."

In Re Walt Disney Co. Derivative Litigation, 907 A.2d 693, 753-54 (Del. Ch. 2005).  Of course, Musk was not authorizing a transaction--or even clearly acting for or on behalf of Tesla--in making his taunting tweet.  But he is identified strongly with Tesla, and his tweet was intentional and inconsistent with the best interests of the firm.  Did he intend to harm Tesla in posting his tweet?  Perhaps not.  Did he act in a manner "unrelated to a pursuit of the corporation's best interests?"  Perhaps.  The tweet is certainly an imprudent (and likely grossly negligent or reckless) action that appears to result from Musk intentionally placing his own hatred or revenge ahead of the interests of Tesla.  

"To act in good faith, a director must act at all times with an honesty of purpose and in the best interests and welfare of the corporation."  Id. at 755.  Yet, it is unclear how far that goes in a Twitter-happy world in which the personal blends into the professional.  Musk was (in all likelihood) not taking action as a director or officer of Tesla when he tweeted his taunt.  Yet, he was undoubtedly cognizant that he occupied those roles and that his actions likely had an effect on the firm.  Should his fiduciary duties extend to this type of conduct?

And what about the Tesla board's duty to monitor? Does it extend to monitoring Musk's personal tweeting?  E.g., the argument made in the Chancery Court's opinion in Beam Ex Rel. Martha Stewart Living Omnimedia, Inc. v. Stewart.  Even of not mandated by fiduciary duty law, the SEC clearly wants the board to have that monitoring responsibility.  The settlement with the SEC reportedly provides for "Tesla’s board to implement procedures for reviewing Musk’s communications with investors, which include tweets."  More for us all to think about when we think about Elon Musk and Tesla . . . .  It's always best not to poke the bear.

October 8, 2018 in Ann Lipton, Business Associations, Corporate Governance, Current Affairs, Joan Heminway, Securities Regulation | Permalink | Comments (1)

Wednesday, September 19, 2018

Business Law Professor Jobs - Posted in 2018/2019

I may update this list from time to time; feel free to e-mail me with additions. Looks like a pretty strong hiring season for business law. Updated 12/04/18.

Law School Professor Positions – Business Specialty Sought

  1. Barry University 
  2. Belmont University
  3. Campbell University
  4. Cardozo
  5. Case Western University
  6. Duke University
  7. Drake University (Director of the Entrepreneurial/Transactional Law Clinic)
  8. Drake University (Assistant, Associate, or Professor of Law)
  9. Drexel University
  10. Emory University
  11. Florida A&M University 
  12. Louisiana State University
  13. Mercer University 
  14. Pennsylvania State University, University Park
  15. Saint John’s University
  16. Seton Hall University
  17. Southern Illinois University Carbondale (Professor of Practice) (9/17/18 deadline or until filled)
  18. University of Alabama
  19. University of Arizona (International Business Law Focus) (Review begins 9/28/18)
  20. University of Arkansas, Fayetteville
  21. University of Buffalo
  22. University of California, Berkeley (initial review 8/15/18; accepted through 3/1/19)
  23. University of California, Davis
  24. University of California, Irvine
  25. University of Connecticut
  26. University of Kentucky
  27. University of Louisville
  28. University of Miami
  29. University of Nebraska
  30. University of New Mexico (Oil & Gas Focus)
  31. University of North Texas at Dallas
  32. University of Oregon (Business Law Clinic)
  33. University of Pittsburgh
  34. University of Richmond
  35. University of Saint Thomas (Miami)
  36. University of South Carolina
  37. University of Wyoming 
  38. Washington & Lee University
  39. Washington University (St. Louis)
  40. Willamette University

Legal Studies Professor Positions (Mostly Business Schools)

  1. Angelo State University
  2. California State Polytechnic University, Pomona (10/1/18 first consideration)
  3. California Polytechnic State University, San Luis Obispo (9/17/18 review begins)
  4. College of Charleston
  5. Community College of Philadelphia
  6. Contra Costa Community College (1/24/19 review closes)
  7. Dutchess Community College 
  8. James Madison University
  9. Kean University (Wenzhou, China) (posted 11/26/18)
  10. Indiana University, Bloomington (10/18/18 best consideration date) (and non-tenure track)
  11. Los Angeles Film School (Entertainment Business/Law Instructor)
  12. Mercy College (Director of Legal Studies)
  13. Morgan State University (opens 10/31/18 - closes 1/31/19)
  14. New Mexico University
  15. Prairie View A&M University 
  16. Princeton University (Fellowships) (11/14/18 deadline)
  17. Quinnipiac University
  18. Saint Joseph's University (Visiting Instructor)
  19. Saint Joseph's University (Assistant Professor)
  20. Santa Monica College
  21. State University of New York at Oswego (Instructor) (11/1/18 review begins)
  22. SUNY-Oswego (Instructor)
  23. Tulane University (Lecturers) and (Professors of Practice)
  24. University of the Bahamas (PHD in Law required)
  25. University of Georgia
  26. University of Michigan (10/15/18 guaranteed consideration)
  27. University of South Florida (Instructor) (JD/LLM or JD/PHD only)
  28. Virginia Tech (Instructor)
  29. Western Carolina University (10/1/18 review begins)

September 19, 2018 in Business Associations, Business School, Haskell Murray, Jobs, Law School, Teaching | Permalink | Comments (0)

Tuesday, August 28, 2018

Kuo & Means - The Political Economy of Corporate Exit

Are corporations (and other business associations) political actors?  Of course.  Some of Marcia's posts here on the BLPB have raised, for example, questions about the use of boycotts as firm political activity.  See, e.g., here.  Marcia also pointed out here that National Football League teams (typically owned by and operated through some form of business association) have been caught up in political activity surrounding the players-kneeling-during-the-national-anthem controversy.

The Vanderbilt Law Review has recently published an essay on the political corporation written by a Dream Team of sorts--two friends who are married to each other--at the University of South Carolina School of Law, Susan Kuo and Ben Means.  Susan teaches advocacy and dispute resolution courses (currently focusing on criminal law and procedure, conflicts, and social justice issues) and is the Associate Dean for Diversity and Inclusion.  Ben is likely known to many BLPB readers as a business law guy (with a special focus on small and family owned busnesses). He's been a member of the executive committee for the Association of American Law Schools (AALS) Section on Business Associations and is past chair of the AALS Section on Agency, Partnership, LLCs, and Unincorporated Business Associations.  They bring their individual and collective talents to this essay, entitled The Political Economy of Corporate Exit.  Here is the SSRN abstract.  

Corporate political activity is understood to include financial contributions, lobbying efforts, participation in trade groups, and political advertising, all of which give corporations a “voice” in public decisionmaking. This Essay contends that the accepted definition of corporate political activity overlooks the importance of “exit.” Corporations do not need to spend money to exert political influence; when faced with objectionable laws, they can threaten to take their business elsewhere. From the “grab your wallet” campaign to the fight for LGBT rights in states such as Georgia, Indiana, and North Carolina, corporate exit has played a significant role in recent political controversies.

This Essay offers the first account of corporate exit as a form of political activity and identifies two basic rationales: (1) attaching economic consequences to public choices, and (2) avoiding complicity with laws that violate a corporation’s values. This Essay also shows how citizens can harness corporate economic power when conventional political channels are inaccessible. In an era of hashtag activism and boycotts sustained via social media, corporations cannot afford to ignore consumers, employees, investors, and other stakeholders.

I communicated with Ben about this piece a while back and was excited about it then.  I am looking forward to getting into it in short order.  Looks like a relevant, insightful read.

August 28, 2018 in Business Associations, Corporations, Joan Heminway, Marcia Narine Weldon | Permalink | Comments (0)

Ross School of Business at University of Michigan - Assistant Professor of Business Law Position

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Assistant Professor of Business Law.

Ross School of Business, University of Michigan.

The Stephen M. Ross School of Business at the University of Michigan seeks applicants for a tenure-track position at the assistant professor level in the Business Law Area starting in the Fall 2019 term. The selected candidate’s primary teaching responsibilities will be to teach business law in the undergraduate (BBA) program but may be required to teach in any of the school’s degree programs. The candidate will be expected to produce high-quality research published in leading law reviews and/or business journals.

Qualified candidates must have earned a J.D. from an ABA accredited law school. The candidate must have an excellent academic record and demonstrate a strong interest, and ability, in conducting high-quality, scholarly research in an area relevant to business. Examples of such fields include, but are not limited to, corporate law, contract law, employment law, financial regulation, securities law, intellectual property, and international trade. A qualified candidate must also demonstrate excellence in university teaching or the potential to be an outstanding teacher in business law.

The review of applications will begin immediately. All applications received before October 15, 2018, will receive full consideration. However, applications received after the deadline may be considered until the position is filled.

For additional information and a complete position announcement, please visit http://careers.umich.edu/job_detail/162128/assistant_professor_of_business_law

Please contact Jen Mason, Area Administrator, via email with questions at masonlj@umich.edu

Applicants are required to submit their applications electronically by visiting the website: http://www.bus.umich.edu/FacultyRecruiting and uploading the following:

  1. A cover letter that includes a description of the candidate’s experience and interest in academic research and teaching.
  2. A curriculum vitae that includes three references

The University of Michigan is an equal opportunity/affirmative action employer.

August 28, 2018 in Business Associations, Business School, Haskell Murray, Jobs | Permalink | Comments (1)

Sunday, August 19, 2018

Sergio Alberto Gramitto Ricci on The Technology and Archeology of Corporate Law

The following comes to us from Sergio Alberto Gramitto Ricci, Visiting Assistant Professor of Law and Assistant Director, Clarke Program on Corporations & Society, Cornell Law School.  I had the pleasure of listening to Sergio discuss this project at our recent SEALS discussion group on Masterpiece Cakeshop, and I found particularly interesting his conclusion that "Roman slaves could not own property, but ius naturale provided them with the right to exercise religion. To the contrary, Roman corporations could contract, own assets and bear liabilities, but they had no exercise rights as religion liberties were typical of personae—physically sound humans."  The concept of robo-directors is also fascinating, and adds another layer to my ongoing dystopian (utopian?) novel plot wherein corporations are allowed to run for seats in Congress directly (as opposed to what some would argue is the current system wherein we get: "The Senator from [X], sponsored by Big Pharma Corp."). You can download the full draft via SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3232816.

In an era where legal persons hold wealth and power comparable to those of nation states, shedding light on the nature of the corporate form and on the rights of business corporations is crucial for defining the relations between the latter and humans. Recent decisions of the U.S. Supreme Court, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Burwell v. Hobby Lobby Stores, Inc., have called for a closer investigation of the role that corporate separateness plays in the business corporation formula. Moreover, legal personhood is a sophisticated legal technology, which employment can revolutionize the strategies to protect cultural heritage or natural features and can address emerging phenomena, including artificial intelligence and learning machines. This paper adopts archeology of corporate law to analyze three intertwining legal and organizational technologies based on legal personhood. Archeology of corporate law excavates ancient laws and language in order to solve salient issues in contemporary and future corporate debates. First, this paper sheds light on the origins and nature of legal personhood and on the rights of business corporations by analyzing laws and language that the Romans adopted when they invented the corporation. For example, excavating roman law shows how Roman slaves could not own property, but ius naturale provided them with the right to exercise religion. To the contrary, Roman corporations could contract, own assets and bear liabilities, but they had no exercise rights as religion liberties were typical of personae—physically sound humans. In sum, the Romans drew a line between the legal capacities of their corporations and the rights and liberties that persons possessed by virtue of being human. Second, this paper discusses the separation of ownership and control. It explains how the separation of ownership and control, together with legal personhood, constitutes the essential formula of the business corporation model. Last, this paper explores artificial intelligence in boardrooms to assist, integrate or replace human directors drawing a parallelism between robo-directors and Roman slaves appointed to run joint-enterprises. Barring the statutory restrictions that require for board directors to be natural persons and overcoming the moral concerns related to appointing robo-directors, the remaining issue that AI in boardrooms raises is that of accountability.

August 19, 2018 in Business Associations, Comparative Law, Corporate Personality, Corporations, Religion, Research/Scholarhip, Stefan J. Padfield | Permalink | Comments (0)