Monday, May 16, 2022

AALS Section on Business Associations - Call for Papers for 2023 Annual Meeting

Dear Section Members --

On behalf of the Executive Committee for the AALS section on Business Associations, I'm writing with details of our two sessions at the 2023 AALS Annual Meeting, which will be held in San Diego, CA from January 4-7, 2023.

First, our main program is entitled, "Corporate Governance in a Time of Global Uncertainty.” We anticipate selecting up to two papers from this call for papers. To submit, please submit an abstract or a draft of an unpublished paper to Professor Mira Ganor, mganor@law.utexas.edu, on or before Friday, August 19, 2022. 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 - BA- Paper Submission” in the subject line of your submission email.

Second, we are excited to announce that we will again hold a "New Voices in Business Law" program, which will bring together junior and senior scholars in the field of business law for the purpose of providing junior scholars with feedback and guidance on their draft articles. Junior scholars who are interested in participating in the program should send a draft or summary of at least five pages to Professor Summer Kim at skim@law.uci.edu on or before Friday, August 19, 2022. The cover email should state the junior scholar’s institution, tenure status, number of years in his or her current position, whether the paper has been accepted for publication, and, if not, when the scholar anticipates submitting the article to law reviews. The subject line of the email should read: “Submission—Business Associations WIP Program.”

For further details on both sessions, please see the attached calls for papers. [Ed. Note: the calls for papers are included below.]

Thank you,

James Park
Chair, AALS Business Associations Section

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Call for Papers for the
Section on Business Associations Program on
Corporate Governance in a Time of Global Uncertainty
January 4-7, 2023, AALS Annual Meeting

The AALS Section on Business Associations is pleased to announce a Call for Papers for its program at the 2023 AALS Annual Meeting in San Diego, CA. The topic is Corporate Governance in a Time of Global Uncertainty. Up to two presenters will be selected for the section’s program.

Businesses are operating at an exceptional level of global uncertainty.  Mounting pressures from myriad fronts leave boards of directors to navigate new frontiers while maneuvering lingering challenges.  In addition to adjusting to uncertain economic and financial implications of geopolitical events and the global pandemic, businesses are asked to assume a distinct social role.  Proliferation of calls for corporate disengagement from certain states comes amidst continued disruption in supply chains and mounting diversity, inequality, climate, and cybersecurity challenges, as well as increased disclosure requirements.  This panel will explore the implications of global uncertainty on corporate governance and the role of corporations and their boards in these changing times.

Submission Information:

Please submit an abstract or a draft of an unpublished paper to Mira Ganor, mganor@law.utexas.edu, on or before Friday, August 19, 2022.  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 - BA- Paper Submission” in the subject line of your submission email.  Papers will be selected after review by members of the Executive Committee of the Section.  Presenters will be responsible for paying their registration fee, hotel, and travel expenses.

We recognize that the past couple of years have been incredibly challenging and that these challenges have not fallen equally across the academy.  We encourage scholars to err on the side of submission, including by submitting early stage or incomplete drafts.  Scholars whose papers are selected will have until December to finalize their papers.   

Please direct any questions to Mira Ganor, the University of Texas School of Law, at mganor@law.utexas.edu.

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Call for Papers
AALS Section on Business Association
New Voices in Business Law
January 4-7, 2023, AALS Annual Meeting

The AALS Section on Business Associations is pleased to announce a “New Voices in Business Law” program during the 2023 AALS Annual Meeting in San Diego, CA. This works-in-progress program will bring together junior and senior scholars in the field of business law for the purpose of providing junior scholars with feedback and guidance on their draft articles.  To complement its other session at the Meeting, this Section is especially interested in papers relating to corporate governance in a time of global uncertainty, but it welcomes submissions on all business-related topics.

PROGRAM FORMAT:  Scholars whose papers are selected will provide a brief overview of their paper, and participants will then break into simultaneous roundtables dedicated to the individual papers.  Two senior scholars will provide commentary and lead the discussion about each paper.

SUBMISSION PROCEDURE:  Junior scholars who are interested in participating in the program should send a draft or summary of at least five pages to Professor Summer Kim at skim@law.uci.edu on or before Friday, August 19, 2022.  The cover email should state the junior scholar’s institution, tenure status, number of years in his or her current position, whether the paper has been accepted for publication, and, if not, when the scholar anticipates submitting the article to law reviews.  The subject line of the email should read: “Submission—Business Associations WIP Program.”

Junior scholars whose papers are selected for the program will need to submit a draft to the senior scholar commentators by Friday, December 9, 2022.

ELIGIBILITY:  Junior scholars at AALS member law schools are eligible to submit papers.  “Junior scholars” includes untenured faculty who have been teaching full-time at a law school for ten or fewer years.  The Committee will give priority to papers that have not yet been accepted for publication or submitted to law reviews. 

Pursuant to AALS rules, faculty at fee-paid non-member law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit.  Please note that all presenters at the program are responsible for paying their own annual meeting registration fees and travel expenses.

May 16, 2022 in Business Associations, Call for Papers, Conferences, Corporate Governance, Family Business, Research/Scholarhip | Permalink | Comments (0)

Thursday, May 5, 2022

SEALS 2022, Elon Musk, and Cinco de Mayo

The Southeastern Association of Law Schools is holding its annual conference in Sandestin, Florida from July 27 through August 3.  The current draft program is available here.  I hope a number of you are planning to come.

In addition to my usual co-moderation (with the inimitable John Anderson) of an insider trading discussion group at the conference, I am looking to moderate the following discussion group:

Elon Musk and the Law

Moderator: Joan Heminway, The University of Tennessee College of Law

Enigmatic entrepreneur Elon Musk has found himself—and his businesses and his family—in the crosshairs of law and regulation. The legal and regulatory issues span a wide range, including First Amendment questions, securities disclosure challenges, legal contests involving the name of his son born in 2020 (with the musician Grimes), and more. This discussion group aims to identify, classify, and analyze these legal and regulatory interactions and interpret their effects on law reform, regulatory entrepreneurship, legal and administrative process, business venturing, and other areas of inquiry. Comparisons to and contrasting views of other public figures and their legal and regulatory tangles may be explored in the process.

Email me if you are interested in participating.

Also, I wish all a feliz Cinco de Mayo.  Wikipedia reminds me that Cinco de Mayo is both a celebration of Mexican-American food and culture in the United States and a commemoration of "Mexico's victory over the Second French Empire at the Battle of Puebla in 1862." The Wikipedia article notes that "[t]he victory of a smaller, poorly equipped Mexican force against the larger and better-armed French army was a morale boost for the Mexicans."  Ukraine immediately comes to mind.  And I guess (feebly tying all this back to Elon Musk) one could take the view that a smaller, poorly equipped Twitter lost out to a larger and better armed acquiror in it recent kerfuffle-turned-takeover-battle with Elon Musk . . . .  I know many of us will continue to have commentary on the Twitter acquisition as the transaction proceeds.

May 5, 2022 in Conferences, Joan Heminway, John Anderson | Permalink | Comments (2)

Friday, March 25, 2022

Post-pandemic evolution, change management, and the role of in-house counsel

Join me in sunny Miami on April 26 for this in-person conference featuring outside counsel, inhouse practitioners, and academics. 

Panel topics include:

Change Management: The Legal Department of the Future -  More and more, in-house legal departments are employing new hybrid and remote work models, incorporating artificial intelligence and technology in their workflows, and restructuring and absorbing new teams after mergers, acquisitions, and divestitures. This panel discussion will focus on how the in-house legal department can be a champion in leading successful developmental and transformational change by implementing change management best practices to be effective and efficient, remaining client-focused, and being a trusted business advisor.

Remote Work:  Accelerated Adoption and Related Challenges - Which option would you choose: on-site, hybrid, or virtual? We will discuss the pros and cons of remote work arrangements, including the challenges of implementing a remote work policy in Latin America where the legal framework is a complex patchwork of requirements, as well as the strategies for creating culture and building a team in a remote work environment.

Counseling the Board of Directors (the panel I'm on)-  This panel will focus on issues that arise when counseling the board of directors and address important topics, including governance, ethics, fiduciary duties, director liability, best practices (diversity and environmental, social, and governance (ESG)), privileged insurance, and D&O insurance all in the context of private and public companies operating in the United States and Latin America.

Supply Chain: Challenges and Opportunities- Lessons learned from recent disruptions in global supply chains will shape crossborder business in the coming years. Our panel will discuss short- and long-term challenges and opportunities in supply chain management and logistics, as well as practical strategies for using technology, contractual protections, and risk-transfer solutions to overcome future supply-chain challenges.

What Is Your Company’s ESG Score? This panel will discuss the origins of climate change management, sustainability and how to operationalize it at your company, as well as how to transition to a low-carbon economy— including standards and disclosures. Panelists will also discuss the importance of implementing mechanisms to adopt a company’s ESG score as an ethical obligation to company commitments and as a governance imperative.

Click here to register.

If you make it down to Miami, I promise to buy you a mojito or cafecito. And don't worry, hurricane season doesn't start until June. 

 

March 25, 2022 in Compliance, Conferences, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Financial Markets, International Business, Law Firms, Lawyering, Marcia Narine Weldon | Permalink | Comments (0)

Monday, March 7, 2022

SEALS 2022 - Prospective Law Teachers Workshop

Reposting this notice and FAQ distributed last week by the Southeastern Association of Law Schools (SEALS) for those interested in/planning on joining the law academy.

*     *     *

Each year, SEALS hosts a Prospective Law Teachers Workshop (PLTW), which provides intensive opportunities for VAPs, fellows, and practitioners to network and participate in mock interviews and mock job talks—prior to the actual teaching market. The Workshop also includes a luncheon (separate ticket purchase is required) and 1-on-1 sessions for candidates to receive faculty feedback on their CVs and FAR forms. This year’s Prospective Law Teachers Workshop will be held at The Sandestin Golf and Beach Resort, Florida on Thursday, July 28 through Saturday, July 30, 2022, although the full SEALS conference runs from Wednesday, July 27 through Wednesday, August 3. If you are interested in participating specifically in the Prospective Law Teachers Workshop, please send your CV, and a brief statement explaining your interest, to Professor Leah Chan Grinvald lgrinvald@suffolk.edu. Please also confirm that you are planning on entering the teaching market in August 2022. Applications are due by March 21, 2022, with decisions made no later than March 30, as registration for SEALS opens on April 1. Past PLTW participants have secured tenure-track appointments at an impressive array of law schools.

Independently from the PLTW, SEALS also offers a workshop that is broader programming for anyone considering academia—even if one is earlier in the process. Anyone may simply attend the Aspiring Law Teachers Workshop by attending SEALS. The programming includes a demonstration of faculty-candidate interviews and sessions on designing your teaching package, navigating the market as a nontraditional candidate, mapping academic opportunities, what’s in a job talk, crafting scholarship goals, the art of self-promotion, as well as a luncheon (separate ticket purchase required when registering for SEALS). The Aspiring Workshop occurs between Wednesday, July 27–Sunday, July 31.

The goal of these two workshops is, in tandem, to provide robust opportunities for those who hope to one day enter legal academia.

Frequently Asked Questions:

They both sound great. What exactly is the difference?

The Prospective Workshop is designed for those who are going on the market this fall (and will be submitting their FAR form or applying to law teaching positions), in 2022, and desiring a chance to moot job talks and interviews in advance of that time. The Aspiring Workshop is designed for anyone considering academia, including those who may not yet be ready to moot a job talk in the summer. Participation in the Prospective Workshop is by acceptance-only while the Aspiring Workshop is open to everyone.

Can I attend both workshops?

Possibly. Some of the times may conflict, but the Aspiring Law Teachers Workshop will be generally open to anyone wishing to attend. Attendance in the Prospective Workshop is in contrast only by acceptance through our competitive selection process, although the PLTW session on Navigating the Market is open to all SEALS attendees.

Is this the new faculty recruitment initiative that I heard SEALS has put together?

No, this is not the new hiring initiative that SEALS is conducting. That process is entirely separate. Information about SEALS’ new faculty recruitment initiative can be found at the following link: https://www.sealslawschools.org/recruitment/applicants/.

March 7, 2022 in Conferences, Joan Heminway, Jobs, Teaching | Permalink | Comments (1)

Friday, March 4, 2022

Corporate & Securities Litigation Workshop: Call for Papers

The University of Illinois College of Law, in partnership with UCLA School of Law, University of Richmond School of Law, and Vanderbilt Law School, invites submissions for the Ninth Annual Workshop for Corporate & Securities Litigation. This workshop will be held on Friday, September 23 and Saturday, September 24, 2022 in Chicago, Illinois.

Overview

This annual workshop brings together scholars focused on corporate and securities litigation to present their scholarly works. Papers addressing any aspect of corporate and securities litigation or enforcement are eligible, including securities class actions, fiduciary duty litigation, and SEC enforcement actions. We welcome scholars working in a variety of methodologies, as well as both completed papers and works-in-progress.

Authors whose papers are selected will be invited to present their work at a workshop hosted by the University of Illinois College of Law. Participants will pay for their own travel, lodging, and other expenses.

Submissions

If you are interested in participating, please send the paper you would like to present or an abstract of the paper to corpandsecworkshop@gmail.com by Friday, May 13, 2022. Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified in June.

Questions

Any questions concerning the workshop should be directed to the organizers: Verity Winship (vwinship@illinois.edu), Jessica Erickson (jerickso@richmond.edu), Jim Park (James.park@law.ucla.edu), and Amanda Rose (amanda.rose@vanderbilt.edu).

March 4, 2022 in Conferences, Corporate Finance, Corporate Governance, Joan Heminway, Litigation, Research/Scholarhip, Securities Regulation | Permalink | Comments (0)

Thursday, March 3, 2022

National Business Law Scholars 2022 - June 16-17 - Norman, OK

National Business Law Scholars Conference (NBLSC)
June 16-17, 2022
Call for Papers

The National Business Law Scholars Conference (NBLSC) will be held on Thursday and Friday, June 16-17, 2022, at the University of Oklahoma College of Law.

This is the thirteenth meeting of the NBLSC, an annual conference that draws legal scholars from across the United States and around the world. We welcome all scholarly submissions relating to business law. Junior scholars and those considering entering the academy are especially encouraged to participate. If you are thinking about entering the academy and would like to receive informal mentoring and learn more about job market dynamics, please let us know when you make your submission.

Please fill out this form to register and submit an abstract by Friday, April 1, 2022. If you have any questions, concerns, or special requests regarding the schedule, please email Professor Eric C. Chaffee at eric.chaffee@utoledo.edu. We will respond to submissions with notifications of acceptance a few weeks after the submission deadline. We anticipate the conference schedule will be circulated in May.

Conference Organizers:

Afra Afsharipour (University of California, Davis, School of Law)
Tony Casey (The University of Chicago Law School)
Eric C. Chaffee (The University of Toledo College of Law)
Steven Davidoff Solomon (University of California, Berkeley School of Law)
Joan MacLeod Heminway (The University of Tennessee College of Law)
Kristin N. Johnson (Emory University School of Law)
Elizabeth Pollman (University of Pennsylvania Carey Law School)
Jeff Schwartz (University of Utah S.J. Quinney College of Law)
Megan Wischmeier Shaner (University of Oklahoma College of Law)

March 3, 2022 in Call for Papers, Conferences, Joan Heminway | Permalink | Comments (4)

Monday, February 28, 2022

2022 Online Symposium – Mainstreet vs. Wallstreet: The Democratization of Investing Friday, March 4 12:30-3:30

2022 Online Symposium – Mainstreet vs. Wallstreet: The Democratization of Investing

I'm thrilled to moderate two panels this Friday and one features our rock star BLPB editor, Ben Edwards. 

                                                                     REGISTER HERE

The University of Miami Business Law Review is hosting its 2022 online symposium on Friday, March 4, 2022. The symposium will run from 12:30 PM to 3:30 PM. The symposium will be conducted via Zoom. Attendees can apply to receive CLE credits for attending this event—3.5 CLE credits have been approved by the Florida Bar. 

The symposium will host two sessions with expert panelists discussing the gamification of trading platforms and the growing popularity of aligning investments with personal values.

The panels will be moderated by Professor Marcia Narine Weldon, who is the director of the Transactional Skills Program, Faculty Coordinator of the Business Compliance & Sustainability Concentration, and a Lecturer in Law at the University of Miami School of Law.

Panel 1: Gamification of Trading 

This panel will focus on the role of social media and “gamification” of trading apps/platforms in democratizing investing, and the risks that such technology may influence investor behavior (i.e., increase in trading, higher risk trading strategies like options and margin use, etc.).

Gerri Walsh:

Gerri Walsh is Senior Vice President of Investor Education at the Financial Industry Regulatory Authority (FINRA). In this capacity, she is responsible for the development and operations of FINRA’s investor education program. She is also President of the FINRA Investor Education Foundation, where she manages the Foundation’s strategic initiatives to educate and protect investors and to benchmark and foster financial capability for all Americans, especially underserved audiences. Ms. Walsh was the founding executive sponsor of FINRA’s Military Community Employee Resource Group. She serves on the Advisory Council to the Stanford Center on Longevity and represents FINRA on IOSCO’s standing policy committee on retail investor education, the Jump$tart Coalition for Personal Financial Literacy, NASAA’s Senior Investor Advisory Council and the Wharton Pension Research Council.

Prior to joining FINRA in May 2006, Ms. Walsh was Deputy Director of the Securities and Exchange Commission’s Office of Investor Education and Assistance (OIEA) and, before that, Special Counsel to the Director of OIEA. She also served as a senior attorney in the SEC’s Division of Enforcement, investigating and prosecuting violators of the federal securities laws. Before that, she practiced law as an associate with Hogan Lovells in Washington, D.C.

Ari Bargil:

Ari Bargil is an attorney with the Institute for Justice. He joined IJ’s Miami Office in September of 2012, and litigates constitutional cases protecting economic liberty, property rights, school choice, and free speech in both federal and state courts.

In 2019, Ari successfully defended two of Florida’s most popular school choice programs, the McKay Program for Students with Disabilities and the Florida Tax Credit Program, before the Florida Supreme Court. As a direct result of the victory, over 120,000 students in Florida have access to scholarships that empower them to attend the schools of their choice.

Ari also regularly defends property owners battling aggressive zoning regulations and excessive fines in state and federal court nationwide and litigates on behalf of entrepreneurs in cutting-edge First Amendment cases. He was co-counsel in a federal appellate court victory vindicating the right of a Florida dairy creamery to tell the truth on its labels, and he is currently litigating in federal appellate court to secure a holistic health coach’s right to share advice about nutrition with her clients. In 2017, Ari was honored by the Daily Business Review as one of South Florida’s “Most Effective Lawyers.”

In addition to litigation, Ari regularly testifies before state and local legislative bodies and committees on issues ranging from occupational licensing to property rights regulation. Ari has also spearheaded several successful legislative campaigns in Florida, including the effort to legalize the sale of 64-ounce “growlers” by craft breweries and the Florida Legislature’s passage of the Right to Garden Act—a reform which made it unlawful for local governments to ban residential vegetable gardens throughout the state.

Ari’s work has been featured by USA Today, NPR, Fox News, Washington Post, Miami Herald, Dallas Morning News and other national and local publications.

Christine Lazaro:

Christine Lazaro is Director of the Securities Arbitration Clinic at St. John’s University School of Law. She joined the faculty at St. John’s in 2007 as the Clinic’s Supervising Attorney. She is also a faculty advisor for the Corporate and Securities Law Society.

Prior to joining the Securities Arbitration Clinic, Professor Lazaro was an associate at the boutique law firm of Davidson & Grannum, LLP.  At the firm, she represented broker-dealers and individual brokers in disputes with clients in both arbitration and mediation.  She also handled employment law cases and debt collection cases.  Professor Lazaro was the primary attorney in the firm’s area of practice that dealt with advising broker-dealers regarding investment contracts they had with various municipalities and government entities.  Professor Lazaro is also of Counsel to the Law Offices of Brent A. Burns, LLC, where she consults on securities arbitration and regulatory matters.

Professor Lazaro is a member of the New York State and the American Bar Associations, and the Public Investors Arbitration Bar Association (PIABA). Professor Lazaro is a past President of PIABA and is a member of the Board of Directors.  She is also a co-chair of PIABA’S Fiduciary Standards Committee, and is a member of the Executive, Legislation, Securities Law Seminar, and SRO Committees. Additionally, Professor Lazaro is the co-chair of the Securities Disputes Committee in the Dispute Resolution Section of the New York State Bar Association and serves on the FINRA Investor Issues Advisory Committee. 

Panel 2: ESG Investing

The second panel will address the growing popularity of ESG funds among investors that want to align their investments with their personal values, and the questions/concerns that arise with ESG funds, including: 1) explaining what they are; 2) discussing the varying definitions and disclosure issues; 3) exploring if investors really give up better market performance if they invest in funds that align with their values; and 4) asking if the increased interest in ESG funds affect corporate change? 

Thomas Riesenberg:

Mr. Riesenberg is Senior Regulatory Advisor to Ceres, working on climate change issues. He previously worked as an advisor to EY Global’s Office of Public Policy on ESG regulatory issues. Before that he worked as the Director of Legal and Regulatory Policy at The Sustainability Accounting Standards Board pursuant to a secondment from EY. At SASB he worked on a range of US and non-US policy matters for nearly seven years. He served for more than 20 years as counsel to EY, including as the Deputy General Counsel responsible for regulatory matters, primarily involving the SEC and the PCAOB. Previously he served for seven years as an Assistant General Counsel at the U.S. Securities and Exchange Commission where he handled court of appeals and Supreme Court cases involving issues such as insider trading, broker-dealer regulation, and financial fraud. While at the SEC he received the Manuel Cohen Outstanding Younger Lawyer Award for his work on significant enforcement cases. He also worked as a law clerk for a federal district court judge in Washington, D.C., as a litigator on environmental matters at the U.S. Department of Justice, and as an associate at a major Washington, D.C. law firm.

Mr. Riesenberg graduated from the New York University School of Law, where he was a member of the Law Review and a Root-Tilden Scholar (full-tuition scholarship). He received a bachelor’s degree from Oberlin College, where he graduated with honors and was elected to Phi Beta Kappa. He is a former chair of the Law and Accounting Committee of the American Bar Association, former president of the Association of SEC Alumni, former treasurer of the SEC Historical Society, and a current member of the Advisory Board of the BNA Securities Regulation and Law Report. For seven years he was an adjunct professor of securities law at the Georgetown University Law Center. He is an elected member of the American Law Institute. He serves on the boards of several nonprofit organizations, including the D.C. Jewish Community Relations Council and the Washington Tennis & Education Foundation. He is the author of numerous articles on securities law and ESG disclosure issues.

Benjamin Edwards:

Benjamin Edwards joined the faculty of the William S. Boyd School of Law at the University of Nevada, Las Vegas in 2017. In addition to being the Director of the Public Policy Clinic, he researches and writes about business and securities law, corporate governance, arbitration, and consumer protection. Prior to teaching, Professor Edwards practiced as a securities litigator in the New York office of Skadden, Arps, Slate, Meagher & Flom LLP. At Skadden, he represented clients in complex civil litigation, including securities class actions arising out of the Madoff Ponzi scheme and litigation arising out of the 2008 financial crisis.

Max Schatzow:

Max Schatzow is a co-founder and partner of RIA Lawyers LLC—a boutique law firm that focuses almost exclusively on representing investment advisers with legal and regulatory issues. Prior to RIA Lawyers, Max worked at Morgan Lewis representing some of the largest financial institutions in the United States and at another law firm where he represented investment advisers and broker-dealers. Max is a business-minded regulatory lawyer that always tries to put himself in the client’s position. He assists clients in all aspects of forming, registering, owning, and operating an investment adviser. He prides himself in preparing clients and their compliance programs to avert regulatory issues, but also assists clients through examinations and enforcement issues. In addition, Max assists advisers that manage private investment funds. In his little spare time, Max enjoys the Peloton (both stationary and road), golf, craft beer, and spending time with his wife and two children.

February 28, 2022 in Compliance, Conferences, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Financial Markets, Law Reviews, Law School, Lawyering, Legislation, Marcia Narine Weldon, Research/Scholarhip, Securities Regulation | Permalink | Comments (0)

Wednesday, February 16, 2022

Tomorrow!! Vice Chancellor Travis Laster of the Delaware Court of Chancery on "Big Law Ethics"

Dear BLPB Readers:

"Vice Chancellor Travis Laster of the Delaware Court of Chancery will be at the University of Iowa College of Law to deliver the James Fraser Smith Lecture on Thursday, February 17, at 2:00PM (central time). He will be speaking on “Big Law Ethics.” The Zoom link is below. The event is free and open to the public." 

You are invited to a Zoom webinar.

When: Feb 17, 2022 02:00 PM Central Time (US and Canada)

Topic: Chancellor Laster's Fraser Smith Lecture

Please click the link below to join the webinar:

https://uiowa.zoom.us/j/98641034913

Or One tap mobile :

    US: +13017158592,,98641034913#  or +13126266799,,98641034913#

Or Telephone:

    Dial(for higher quality, dial a number based on your current location):

        US: +1 301 715 8592  or +1 312 626 6799  or +1 646 876 9923  or +1 253 215 8782  or +1 346 248 7799  or +1 669 900 6833

Webinar ID: 986 4103 4913

    International numbers available: https://uiowa.zoom.us/u/ab9dE3u6gw

February 16, 2022 in Colleen Baker, Conferences | Permalink | Comments (2)

Monday, January 10, 2022

Can Business Law Profs Be Change Leaders?

Yesterday evening, the 2022 Association of American Law Schools Annual Meeting concluded.  Hosted on a platform using Zoom, the conference spanned five days.  It was a meeting filled with super papers and discussion, many worthy honorees, and a little bot of networking and fellowship (not as satisfactory over Zoom, of course).

I was invited by BLPB co-blogger John Anderson and Martin Edwards to be part of an exciting discussion group: A Very Online Economy: Meme Trading, Bitcoin, and the Crisis of Trust and Value(s) – How Should the Law Respond?  [Editor's note: a hypertext link to John's earlier blog post was added post publication.]  Participants were asked to write short papers on the topic and share their theses during the session at the meeting. Initially, I planned to write on something involving substantive doctrinal law stemming from the meme stock phenomenon or my work in crowdfunding, blockchains, or insider trading.  But the more I thought about it (and the topic), and with the conference's programs honoring the life and legacy of Deborah Rhode in the foreground of my mind, the more I became convinced that I wanted to write/speak about lawyer leadership in this area at this time.

The short paper that resulted from that thinking, Leading as Lawyers in an Era of Rapid Technological Change, Limited Trust, and Individualism, can be found here.  It is not worth an SSRN post; it is just a thought piece.  But I am interested in your feedback, so I am sharing a link to it here.  The essential thesis is summarized in my conclusion paragraphs, pasted in below:

Lawyers and legal academics who desire to be change leaders have unique knowledge and experience relevant to the creation of a vision for legal or regulatory change that responds to ongoing business transformations. We know the existing legal and regulatory landscape and can observe its application in day-to-day business dealings. As businesses rapidly evolve in an increasingly digital world, the expertise of business lawyers and business law scholars is important to legal and regulatory change as well as legal and regulatory compliance.

Yet, successful, sustainable change in U.S. law and regulation has proven somewhat difficult. Among other things, we are living in an era of limited trust and increased individualism. These socio-political attributes of current life in the United States appear to be barriers to implementing even the most swell-reasoned legal arguments for change.

A possible way forward involves the use of proven patterns of efficacious change leadership that have been observed in private businesses and documented in a robust body of literature—especially academic literature authored by business management scholars. This literature deserves our attention and study, as does its application to effective processes of legal and regulatory change. There is no magic recipe for leading change, especially in the current environment. But merely having and sharing solid ideas for positive legal and regulatory change has never been enough to ensure the adoption and entrenchment of that change. If we want to be change leaders in the current, rapidly evolving business ecosystem, business lawyers and business law academics must consider and engage process. The ideas shared here are offered as a means of encouraging that consideration and engagement.

The paper admittedly results in part from the feeling that many worthy ideas for legal or regulatory change never get implemented because the right process was not employed.  Perhaps you also have felt this frustration at some point . . . .  As a result, in the paper, I end up encouraging the implementation of specific, staged, sequenced steps to make sustainable legal or regulatory change.

Among other things, I share a few pieces of the referenced academic literature on change leadership--a literature that I have used in other work.  It is a growing body of work.  And it keeps drawing me back.

The paper is five pages.  If any of what I have said in this post piques your interest and you deign to read the paper, let me know if you have any thoughts.  My idea is a simple idea; perhaps too simple . . . .

January 10, 2022 in Conferences, Joan Heminway | Permalink | Comments (0)

Tuesday, January 4, 2022

AALS 2022 Annual Meeting Programs - ICYMT

Perhaps you missed these interesting programs--with super speakers--among all the amazing business associations, securities regulation, business transactions, etc. sessions!  I know I did and was glad a friend highlighted them for my attention.

Wednesday, January 5, 2022, 12:35 PM to 1:50 PM
Climate Finance and Banking Regulation: Beyond Disclosure?
Financial Institutions and Consumer Financial Services

U.S. banking regulation has been slower than other forms of financial regulation (and slower than in Europe) to address climate-related financial risks. This panel explores the role of banking regulation in addressing the physical and transition risks from climate change. Possible measures include: mandatory climate risk disclosures by banks; supervisory assessments of climate-related financial risk; capital and liquidity regulation; scenario tests; determination of the appropriate role of banks in mitigating climate risk; financial stability oversight of climate risk; and action (through the Community Reinvestment Act and otherwise) to deter harms to disadvantaged communities and communities of color from climate change.

    • Patricia A. McCoy, Boston College Law School, Moderator
    • Christina Skinner, Wharton School of the University of Pennsylvania, Speaker
    • Graham Steele, Stanford Graduate School of Business, Speaker
    • Hilary J. Allen, American University, Washington College of Law, Speaker
    • Nakita Cuttino, Georgetown University Law Center, Speaker from a Call for Papers

Sunday, January 9, 2022, 3:10 PM to 4:25 PM
Workers, Boards, and the Global Corporation
Section on Economic Globalization and Governance

The appropriate role and status of employee voice in corporate governance is an evergreen issue for corporate law. In the US, the field has traditionally focused on the interactions between boards of directors, shareholders, and managers, but with an increased emphasis on corporate social responsibility, that view has expanded. Despite widespread embrace of CSR principles, however, many corporations still resist union organizing. The inclusion of worker voice in corporate governance has significant comparative law dimensions, encompassing co-determination and union representation on boards. With the recognition that work is increasingly remote, these issues will become even more salient.

    • Miriam Cherry, Saint Louis University School of Law, Moderator
    • Lenore Palladino, University of Massachusetts Amherst School of Public Policy, Speaker
    • Franklin A. Gevurtz, University of the Pacific, McGeorge School of Law, Speaker
    • George S. Georgiev, Emory University School of Law, Speaker
    • Matthew T. Bodie, Saint Louis University School of Law, Speaker

Looking forward to seeing many of you on Zoom later in the week!

January 4, 2022 in Conferences, Corporate Governance, Corporations, Employment Law, Joan Heminway | Permalink | Comments (0)

Friday, December 24, 2021

ESG in 2022- Pt 1

I’ve been thinking about environmental, social, and governance issues (“ESG”) for almost twenty years -- long before they became mainstream. As an in-house lawyer at a public company prior to joining academia, I had no choice. I teach, research, and consult on these issues now and have a whole lot of thoughts about them, which I'll share in coming posts. 

I had the honor of presenting on "ESG and India in 2022" yesterday. ESG is a hot topic in India, as it is everywhere - - I have either attended or spoken on half a dozen panels on ESG this year to introduce the topic to lawyers. If you're not familiar with the term or think it's completely irrelevant to what you do for a living, here are some common classifications for investors that integrate ESG into their portfolio selection and investment process. 

Environmental: climate change, water, alternative energy, pollution & waste management

Social: human rights, workplace standards, worker health safety, diversity & equal opportunity, labor relations, land grabs

Governance: bribery & corruption, board diversity, corporate political contributions, executive compensation, disclosure & transparency, board independence, tax avoidance

If you're a transactional lawyer, chances are you or your clients deal with at least one these issues directly or indirectly.

Here are some interesting statistics from the 2021 RBC Global Asset Management Responsible Investment Survey, which had over 800 respondents from all over the world. For context, almost half of the respondents had over one billion in assets under management:

  • 72% of global investors integrate ESG principles in their investment approach and decision-making.
  • 96% of respondents in Europe, 81% in Canada (down from 89%), and 65% in US say they use ESG in decision making.
  • 83% of global investors said ESG-integrated portfolios are likely to do as well or better than non-ESG-integrated portfolios, about the same as last year.
  • 97% of EU and 75% of US investors believe ESG-integrated portfolios perform as well as or better than non-ESG integrated portfolios.

During my talk, I focused on the following topics at the audience's request:

1. What is Environmental Social Governance (ESG) and why is sustainability is important?

2. How can investors apply these non-financial factors as a part of their analysis process to identify material risk and growth opportunities?

3. What is sustainable investing? How does it differ from ESG integration?

4. Co-relation between a smart investment and sustainable innovation.

5. Did this pandemic teach us a lesson about ESG? How is it going to affect the call for the climate change issue?

6. Responsibility, sustainability, and diversity are the pillars of ESG. How are MNCs are adopting this?

7.What do ESG practitioners do and what is the scope for growth/ global career opportunities in ESG?

It was an honor to talk about ESG to an audience from a country where these issues are a literally a matter of life and death. For example, almost 20% of deaths in India in 2019 were attributable in part to pollution. I’ve also been thrilled to introduce my law students to these concepts and help them discern the facts from the hype. If they are any indication, the next generation of lawyers will think of ESG as a matter of course and not as a special category of legal or business issues. 

 

 

 

 

December 24, 2021 in Compliance, Conferences, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Financial Markets, Human Rights, International Business, International Law, Law School, Lawyering, Marcia Narine Weldon, Securities Regulation, Social Enterprise, Teaching | Permalink | Comments (0)

Monday, December 20, 2021

AALS Section on Business Associations - 2022 Leadership Slate

Following up on my December 6 post, I include below an update from AALS Section on Business Associations Chair (and friend-of-the-BLPB) Jessica Erickson relating to the upcoming AALS annual meeting elections for the Section on Business Associations.  I am impressed by the slate and know our section leadership will remain in capable hands!  I hope to see many of you on Zoom at one or more of the section programs, including the main program (described in my December 6 post) at which the voting for next year's leadership will take place.  

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Dear members of the AALS Business Associations Section:

I am emailing to update you on the proposed slate for the AALS Business Associations Section's Executive Committee. We have a great list of people who will be joining the section's leadership. I am rotating off as chair at the end of the annual meeting, and Jim Park (our chair-elect) will automatically become the new chair. Mira Ganor has agreed to serve as next year's chair-elect. Thanks to both Jim and Mira for their service to our section!

We also have three members rotating off the Executive Committee - Matt Jennejohn, Dana Brakman Reiser, and Andrew Verstein. We are very thankful for their service as well! As a result of these changes, we have four openings on the Executive Committee. After soliciting nominations from our membership, we have a slate of four new members that we will vote on in a brief business meeting at the end of our main session at the annual meeting. This slate includes:

* George Georgiev of Emory University School of Law;
* Summer Kim of the University of California, Irvine School of Law;
* Christina Sautter of the Paul M. Hebert Law Center, Louisiana State University; and
* Omari Scott Simmons of Wake Forest Law School

Thanks to all of you for your work on behalf of the section, and I hope you all have a fabulous break.

Best,
Jessica Erickson
Chair, AALS Business Associations Section

December 20, 2021 in Conferences, Joan Heminway | Permalink | Comments (0)

Thursday, December 9, 2021

AALS Section on Transactional Law & Skills - Annual Meeting Main Program and Call for Nominations

From friend-of-the-BLPB Megan Shaner:

  • The Transactional Law & Skills Section main program, "Transactional Lawyering at the Intersection of Business and Societal Well-Being," will be held Friday, January 7th at 11am-12:15 EST.

    Description:

    * Presenters from Call for Papers:

    Michael Blasie, Penn State Dickinson Law, “The Rise of Plain Language Laws”
    George Georgiev, Emory University School of Law, “The Law and Economics of Materiality”

    * Moderator: Eric Chaffee, University of Toledo College of Law

    * Invited Speakers
    Praveen Kosuri, University of Pennsylvania Carey Law School

    Amelia Miazad, UC Berkeley School of Law

    Jennie Morawetz, Kirkland & Ellis (strategy and operations partner for Kirkland’s ESG and Impact practice)

    Faith Stevelman, New York Law School

    *Moderator: Megan Shaner, University of Oklahoma College of Law

  • At the end of the program we will hold a brief business meeting to elect the membership of next year's executive committee. If you would like to nominate yourself or another member, please email me at mshaner@ou.edu by December 13, 2020.

 

December 9, 2021 in Conferences, Joan Heminway | Permalink | Comments (0)

Monday, December 6, 2021

AALS Section on Business Associations - 2022 Annual Meeting & Call for Leadership Nominations

This in from friend-of-the-BLPB Jessica Erickson:

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Dear AALS Business Association Section Members,

I hope the end of your semester is going well! I'm writing with programming details for the January 2022 AALS Annual Meeting and to invite you to nominate yourself or others for Executive Committee positions next year.

January 2022 Annual Meeting

1. Registration is still open, and you can register here https://aals.secure-platform.com/a/organizations/main/submissions/details/7094 . As you may know, most law schools have paid school-wide registration fees again this year, which makes registration simpler, but you still have to register to attend any of the sessions.

2. The Business Associations Section main program, "Race and Teaching Business Associations," will be held Friday, January 7th at 12:35 to 1:50 EST. Many thanks to James Park, the section's chair-elect, for organizing this panel!

Description: Business Associations classes taught in most law schools spend little if any time on issues relating to racial discrimination and inequity. But as important social institutions, businesses have long had a significant impact on racial equity. The increasing scrutiny of the lack of diversity on public company boards is one of several fronts where businesses are facing both legal and social pressure to address racial inequity. Students are increasingly interested in understanding how the law governing business organizations reflects or contributes to racial injustice. Many law professors want to do more to cover topics relating to race in their Business Associations course and are seeking guidance on how to do so. This panel will provide a forum where teachers of Business Associations can share ideas for incorporating the subject of racial discrimination and inequity into their classes.

* Invited Speakers
Thomas Joo, UC Davis School of Law
Steven Ramirez, Loyola University Chicago School of Law
Cheryl Wade, St. John's University School of Law

* Presenter from Call for Papers: Harwell Wells, Temple University School of Law, presenting Shareholder Meetings and Freedom Rides: The Story of Peck v. Greyhound

* Moderator: James Park, UCLA School of Law

3. The section's Works-in-Progress Program will be held Thursday, January 6th at 4:45 - 6:00 pm EST. Many thanks to Eric Chaffee for organizing a terrific panel of the following presenters and commentators!

* Paper #1: William J. Moon (University of Maryland Carey School of Law), Anonymous Companies

* Commentators: Frank Gevurtz, Joan Heminway, Eric Chaffee


* Paper #2: Trang (Mae) Nguyen (Temple University Beasley School of Law), Norm Assembly in Global Value Chains

* Commentators: Michael Malloy, Kish Parella, Veronica Root


* Paper #3: Alexander I. Platt (University of Kansas School of Law), Beyond "Market Transparency": Investor Disclosure and Corporate Governance

* Commentators: Afra Afsharipour, Michael Guttentag, and Donna Nagy


* Moderator: Eric Chaffee

Nominations for Next Year's Executive Committee

Finally, following past practice, we will hold an electronic business meeting later this month to determine the membership of next year's executive committee. If you would like to nominate yourself or another member, please email me at jerickso@richmond.edu by December 13, 2020.

We hope to see you (virtually) at the Annual Meeting!

Best,

Jessica Erickson


On behalf of the Executive Committee:

Jessica Erickson, University of Richmond School of Law (Chair)
James J. Park, University of California, Los Angeles School of Law (Chair-Elect)
Dana Brakman Reiser, Brooklyn Law School
Eric Chaffee, University of Toledo College of Law
Carliss Chatman, Washington & Lee School of Law
Gina-Gail S. Fletcher, Duke University School of Law
Mira Ganor, University of Texas School of Law
Cathy Hwang, University of Virginia School of Law
Matt Jennejohn, BYU Law School
Michael Malloy, University of the Pacific McGeorge School of Law
James Nelson, University of Houston Law Center
Andrew Verstein, University of California, Los Angeles School of Law
Cheryl Wade, St. John's University School of Law
Manning G. Warren, III, University of Louisville, Louis D. Brandeis School of Law

December 6, 2021 in Conferences, Joan Heminway, Research/Scholarhip, Teaching | Permalink | Comments (0)

Friday, November 26, 2021

Presenting at the 16th Annual Meeting of the American College of Business Court Judges

I was recently honored to be invited to join a panel at the 16th Annual Meeting of the American College of Business Court Judges (ABCBJ), which was held in Jackson, Mississippi, on October 27-29. The meeting was hosted by Chancellor Denise Owens (the current president of the ACBCJ) in association with the Law & Economics Center (LEC) at George Mason University Antonin Scalia School of Law.

Chancellor Owens kicked off the event and introduced the keynote speaker, Haley Barbour (former Governor of Mississippi). Governor Barbour gave an excellent talk about the ways in which Mississippi's musical traditions have helped to improve race relations over the past century.

The meeting panels covered a broad array of topics, including:

  • Ownership, Transfer and Trading of Intellecual Property Rights.
  • The Cost of Truth, Can You Afford It?
  • Artificial Intelligence, Machine Learning, and Algorithms: Studies in Law, Economics, and Racial Bias
  • Thriving Post Pandemic - Private Practice and Expanding Regulatory Authority After COVID-19.

I joined Professors Todd Zywicki and Donald Kochan on a panel moderated by Judge Elihu Berle (Los Angeles Superior Court). The panel was entitled, Shareholder Wealth Maximization versus ESG and the Business Roundtable: The Growing Debate Over Corporate Purpose. I presented on the Securities and Exchange Commission's plans for a new mandatory climate-change-related disclosure regime. The prsentation drew from portions of a recent essay I coauthored with Professor George Mocsary, An Economic Climate Change?

The conference concluded with the tour of our new Civil Rights Museum in Jackson. It was a wonderful meeting, and I look forward to participating in future ABCBJ events!

November 26, 2021 in Business Associations, Conferences, John Anderson, Law and Economics, Securities Regulation | Permalink | Comments (0)

Monday, October 25, 2021

Heminway on Murray on Reforming the Benefit Corporation

Last week, I posted about the first of my two published commentaries from the 2020 Business Law Prof Blog Symposium, Connecting the Threads IV.  That earlier post related to my comments on an article written by BLPB co-blogger Stefan Padfield.  The subject?  Public company shareholder proposals--specifically, viewpoint diversity shareholder proposals.

This week, I am posting on the second commentary, History, Hope, and Healthy Skepticism, 22 TRANSACTIONS: TENN. J. BUS. L. 223 (2021).  This commentary offers my observations on co-blogger J. Haskell Murray’s, The History and Hope of Social Enterprise Forms, 22 TRANSACTIONS: TENN. J. BUS. L. 207 (2021).  The main body of the abstract follows.

In this comment, I play the role of the two-year-old in the room. Two-year-old children are well known to ask “why,” and that is what I do here. Specifically, this comment asks “why” in two aspects. First, I ask why we do (or should) care about making modifications to existing social enterprise practices and laws, the subject of Professor Murray’s essay. Second, assuming we do (or should) care, I ask why the changes Professor Murray suggests make sense. My commentary is largely restricted to the benefit corporation form because corporate forms loom large in the debates relevant to Professor Murray’s essay and because the benefit corporation is acknowledged to be the most widely adopted corporate form as among the social enterprise forms of entity.

And so, Haskell and I are "at it again" over whether the benefit corporation is worth reforming/saving.  More precisely, I am (again) picking a bit of an academic fight with Haskell.  His good nature and patience in response to my continued questions and push-backs have been and are deeply appreciated.

Do/should we care about modifying benefit corporation practices and laws and, if so, do Professor Murray's proposed reforms make sense?  [SPOILER ALERT!]  My bottom line:

I am satisfied—even if not wholly persuaded—that there is a reason to care. Benefit corporations may alter mindsets in a positive way, even if they do not positively or meaningfully alter applicable legal principles. And . . . I am convinced that Professor Murray generally has the right idea in calling for more accountability to a broader base of stakeholders—beyond just shareholders.

So, in the end, I was ready to call a limited truce--or really more of a detente. 

But I do maintain, as Haskell knows, a healthy doubt that the benefit corporation form has any broad-based value (making it hard to agree that amending the standard statutory framework or related practices has any merit).  And it looks like I have a new convert to this cause.  In his recent, provocative thought piece, Capitalism, heal thyself, Alan Palmiter avers as follows:

[W]e don’t really need benefit corporations, those corporations that have a hybrid profit and social/environmental purpose. All the companies that are doing big ESG -- world-changing ESG -- are your garden-variety for-profit (for-shareholder profit) companies. Maybe there are some benefit corporations, like my friend Patagonia, that like the label. But Patagonia didn’t have to be a benefit corporation to do what it’s doing.

That said, there’s a problem with fake benefit corporations, the ones pretending to do ESG. . . .

Alan, as you know, you are beating my drum--a drum I earlier have beaten here, here, and here, among other places, in various ways.  We shall see where it all goes.  But I remain a believer in the ability of the traditional for-profit corporation's ability tio engage in effective, efficient social enterprise and (more broadly) ESG initiatives.

 

October 25, 2021 in Conferences, Haskell Murray, Joan Heminway, Social Enterprise | Permalink | Comments (0)

Monday, October 18, 2021

Viewpoint Diversity Shareholder Proposals - A Commentary

Earlier this year, Transactions: The Tennessee Journal of Business Law, published papers presented at the 2020 Connecting the Threads IV symposium, held on Zoom just about a year ago.  Back in July, I wrote about my coauthored piece from the 2020 symposium.  That was my primary contribution to the event and the published output.

However, I also had the privilege of commenting on two papers at the symposium last year, and my comments were published in the Transactions symposium volume. I have been wanting to post about those published commentaries for a number of months, but other news just seemed more important.  Given the recent completion of this year's Connecting the Threads V symposium, it seems like a good time to make those posts.  I start with the first of the two here.

This post covers my commentary on Stefan Padfield's paper, An Introduction to Viewpoint Diversity Shareholder Proposals.  It was a fascinating read for me.  I was unaware of this genre of shareholder proposal before I picked up Stefan's draft.  If you also are in the dark about these shareholder proposals, his article offers a great introduction.  Essentially, viewpoint diversity shareholder proposals are shareholder-initiated matters proposed for a shareholder vote that (1) are included in a public company's proxy statement through the process set forth in Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and (2) serve "to restore some semblance of balance" in public companies that are characterized by viewpoint bias or discrimination.  Stefan's article offers examples and provides related observations.

My commentary is entitled A Few Quick Viewpoints on Viewpoint Diversity Shareholder Proposals.  It is posted on SSRN here. The SSRN abstract is as follows:

This commentary essay represents a brief response to Professor Stefan Padfield’s "An Introduction to Viewpoint Diversity Shareholder Proposals" (22 TRANSACTIONS: TENN. J. BUS. L. 271 (2021)). I am especially interested in two aspects of Professor Padfield’s article on which I comment briefly in turn. First and foremost, I focus in on relevant aspects of an academic and popular literature that Professor Padfield touches on in his article. This literature addresses an area that intersects with my own research: the diversity and independence of corporate management (in particular, as to boards of directors, but also as to high level executive officers--those constituting the so-called “C-suite”) and its effects on corporate decision-making. Second, I offer a few succinct thoughts on the suitability of the shareholder proposal process as a means of promoting viewpoint diversity in publicly held firms.

The essay is reasonably brief (so feel free to read it in its entirety).  But the essence of my conclusion offers the bottom line.  

Although viewpoint diversity may be a vague or malleable term, the business environment and exemplar shareholder proposals featured in Professor Padfield’s Article offer guidance as to the contextual meaning of that term. Based on his depiction and the literature on management diversity’s role in efficacious decision-making, viewpoint diversity has the capacity to add value to the business management enterprise and enhance the existence and sustainability of a healthy, happy workforce. Moreover, his Article indicates, and this commentary affirms, that the shareholder proposal process may be a successful tool in raising viewpoint diversity issues with firm management. Even if the inclusion of specific shareholder proposals in public company proxy statements may be questionable under Rule 14a-8, the existence of viewpoint diversity shareholder proposals may open the door to productive dialogues between shareholders and the subject companies. In sum, Professor Padfield’s Article represents a thought-provoking inquiry into an innovative way in which securities regulation may contribute to forwarding corporate social justice in the public company realm.

So, even if you don't read my commentary, you should read his article.

October 18, 2021 in Conferences, Corporate Governance, Corporations, Joan Heminway, Shareholders, Stefan J. Padfield | Permalink | Comments (2)

Monday, October 4, 2021

Connecting the Threads 2021 - My Thread in the Tapestry . . . .

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With my bum shoulder and a lot of work on our dean search cramping my style over the past few weeks, I have been remiss in posting about the 2021 Business Law Prof Blog Symposium, Connecting the Threads V.  The idea behind the name (and Doug Moll likes to riff on it--so have at it, Doug!) is that our bloggers here at the BLPB connect the many threads of business law in what we do--here on the blog and elsewhere.

Anyhoo (as Ann would say), as always, my BLPB co-bloggers did not disappoint in their presentations.  I know our students look forward to publishing many of the articles and the related commentaries in the spring book of our business law journal, Transactions: The Tennessee Journal of Business Law.  I also am always so proud of, and interested to hear, the commentary of my colleagues and students.  This year was no exception.

In the future, I will post more about the article that I presented.  But I will offer a teaser here, accompanied by the above screen shot from the symposium.  (It was "Big Orange Friday" on our campus.  The orange had to be worn.  Go Vols!)

The title of my presentation and article is Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation.  A brief excerpt from the continuing legal education handout for the symposium presentation is set forth below (footnotes omitted).

[T]his presentation urges that competent, complete legal counsel on choice-of-entity for nonprofit business undertakings should extend beyond advising clients on which form of business entity best fits their needs and wants, if any. For many small business ventures that qualify for federal income tax treatment under Section 501(a) of the U.S. Internal Revenue Code of 1986, as amended (“IRC”), as religious, charitable, scientific, literary, educational, or other eligible organizations under Section 501(c)(3) of the IRC . . . , the time and expense of organizing, qualifying, managing, and maintaining a tax-exempt nonprofit corporation under state law may be daunting (or even prohibitive). Moreover, the structures imposed by business entity law may not be needed or wanted by the founders or promoters of the venture. Yet, there may be distinct advantages to entity formation and federal tax qualification that are not available (or not as easily available) to unincorporated not-for-profit business projects. These may include, for example, exculpation for breaches of performative fiduciary duties and limitations on personal liability for business obligations available to participants in nonprofit corporations under state statutory law and easier clearance of or compliance with initial and ongoing requirements for tax-exempt status under federal income tax law.

The described conundrum—the prospect that founders or promoters of a nonprofit project or business may not have the time or financial capital to fully form and maintain a business entity that may offer substantial identifiable advantages—is real. Awareness of this challenge can be disheartening to lawyer and client alike. Fortunately, at least for some of these nonprofit ventures, there is a third option—fiscal sponsorship—that may have contextual benefits. This presentation offers food for thought on the benefits of fiscal sponsorship, especially for arts and humanities endeavors.

Again, I will have more to say about this later, once the article is fully crafted.  But your thoughts on fiscal sponsorship--and examples, stories, and the like--are welcomed in the interim as I continue to work through the article.

October 4, 2021 in Ann Lipton, Conferences, Joan Heminway, Lawyering, Nonprofits, Research/Scholarhip | Permalink | Comments (0)

Friday, September 24, 2021

Ten Ethical Traps for Business Lawyers

I'm so excited to present later this morning at the University of Tennessee College of Law Connecting the Threads Conference today at 10:45 EST. Here's the abstract from my presentation. In future posts, I will dive more deeply into some of these issues. These aren't the only ethical traps, of course, but there's only so many things you can talk about in a 45-minute slot. 

All lawyers strive to be ethical, but they don’t always know what they don’t know, and this ignorance can lead to ethical lapses or violations. This presentation will discuss ethical pitfalls related to conflicts of interest with individual and organizational clients; investing with clients; dealing with unsophisticated clients and opposing counsel; competence and new technologies; the ever-changing social media landscape; confidentiality; privilege issues for in-house counsel; and cross-border issues. Although any of the topics listed above could constitute an entire CLE session, this program will provide a high-level overview and review of the ethical issues that business lawyers face.

Specifically, this interactive session will discuss issues related to ABA Model Rules 1.5 (fees), 1.6 (confidentiality), 1.7 (conflicts of interest), 1.8 (prohibited transactions with a client), 1.10 (imputed conflicts of interest), 1.13 (organizational clients), 4.3 (dealing with an unrepresented person), 7.1 (communications about a lawyer’s services), 8.3 (reporting professional misconduct); and 8.4 (dishonesty, fraud, deceit).  

Discussion topics will include:

  1. Do lawyers have an ethical duty to take care of their wellbeing? Can a person with a substance use disorder or major mental health issue ethically represent their client? When can and should an impaired lawyer withdraw? When should a lawyer report a colleague?
  2. What ethical obligations arise when serving on a nonprofit board of directors? Can a board member draft organizational documents or advise the organization? What potential conflicts of interest can occur?
  3. What level of technology competence does an attorney need? What level of competence do attorneys need to advise on technology or emerging legal issues such as SPACs and cryptocurrencies? Is attending a CLE or law school course enough?
  4. What duties do lawyers have to educate themselves and advise clients on controversial issues such as business and human rights or ESG? Is every business lawyer now an ESG lawyer?
  5. What ethical rules apply when an in-house lawyer plays both a legal role and a business role in the same matter or organization? When can a lawyer representing a company provide legal advice to an employee?
  6. With remote investigations, due diligence, hearings, and mediations here to stay, how have professional duties changed in the virtual world? What guidance can we get from ABA Formal Opinion 498 issued in March 2021? How do you protect confidential information and also supervise others remotely?
  7. What social media practices run afoul of ethical rules and why? How have things changed with the explosion of lawyers on Instagram and TikTok?
  8. What can and should a lawyer do when dealing with a businessperson on the other side of the deal who is not represented by counsel or who is represented by unsophisticated counsel?
  9. When should lawyers barter with or take an equity stake in a client? How does a lawyer properly disclose potential conflicts?
  10. What are potential gaps in attorney-client privilege protection when dealing with cross-border issues? 

If you need some ethics CLE, please join in me and my co-bloggers, who will be discussing their scholarship. In case Joan Heminway's post from yesterday wasn't enough to entice you...

Professor Anderson’s topic is “Insider Trading in Response to Expressive Trading”, based upon his upcoming article for Transactions. He will also address the need for business lawyers to understand the rise in social-media-driven trading (SMD trading) and options available to issuers and their insiders when their stock is targeted by expressive traders.

Professor Baker’s topic is “Paying for Energy Peaks: Learning from Texas' February 2021 Power Crisis.” Professor Baker will provide an overview of the regulation of Texas’ electric power system and the severe outages in February 2021, explaining why Texas is on the forefront of challenges that will grow more prominent as the world transitions to cleaner energy. Next, it explains competing electric power business models and their regulation, including why many had long viewed Texas’ approach as commendable, and why the revealed problems will only grow more pressing. It concludes by suggesting benefits and challenges of these competing approaches and their accompanying regulation.

Professor Heminway’s topic is “Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation.” Professor Heminway will discuss how for many small business projects that qualify for federal income tax treatment under Section 501(a) of the U.S. Internal Revenue Code of 1986, as amended, the time and expense of organizing, qualifying, and maintaining a tax-exempt nonprofit corporation may be daunting (or even prohibitive). Yet there would be advantages to entity formation and federal tax qualification that are not available (or not easily available) to unincorporated business projects. Professor Heminway addresses this conundrum by positing a third option—fiscal sponsorship—and articulating its contextual advantages.

Professor Moll’s topic is “An Empirical Analysis of Shareholder Oppression Disputes.” This panel will discuss how the doctrine of shareholder oppression protects minority shareholders in closely held corporations from the improper exercise of majority control, what factors motivate a court to find oppression liability, and what factors motivate a court to reject an oppression claim. Professor Moll will also examine how “oppression” has evolved from a statutory ground for involuntary dissolution to a statutory ground for a wide variety of relief.

Professor Murray’s topic is “Enforcing Benefit Corporation Reporting.” Professor Murray will begin his discussion by focusing on the increasing number of states that have included express punishments in their benefit corporation statutes for reporting failures. Part I summarizes and compares the statutory provisions adopted by various states regarding benefit reporting enforcement. Part II shares original compliance data for states with enforcement provisions and compares their rates to the states in the previous benefit reporting studies. Finally, Part III discusses the substance of the benefit reports and provides law and governance suggestions for improving social benefit.

All of this and more from the comfort of your own home. Hope to see you on Zoom today and next year in person at the beautiful UT campus.

September 24, 2021 in Colleen Baker, Compliance, Conferences, Contracts, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Ethics, Financial Markets, Haskell Murray, Human Rights, International Business, Joan Heminway, John Anderson, Law Reviews, Law School, Lawyering, Legislation, Litigation, M&A, Management, Marcia Narine Weldon, Nonprofits, Research/Scholarhip, Securities Regulation, Shareholders, Social Enterprise, Teaching, Unincorporated Entities, White Collar Crime | Permalink | Comments (0)

Thursday, September 23, 2021

Fifth Annual Business Law Prof Blog Symposium - Tomorrow on Zoom!

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Although we had hoped to be together again in person this year, our annual gathering of bloggers from the BLPB is back on Zoom again this year.  [sigh]  The good news for all of you readers is that you do not have to travel to Knoxville, TN to "see" and hear us!  This year's edition of "Connecting the Threads" will be held tomorrow (Friday) from 9:30 am to 4:30 pm, Eastern time.  The full schedule is available here and this is the Zoom connection for the entire day.

Here is the basic schedule, so you can get a quick lay of the land:

Schedule of Events

  • Registration / 9 - 9:30 a.m.
     
  • Introduction / 9:30 - 9:45 a.m.

    Interim Dean Doug Blaze

  • Panel I - Insider Trading in Response to Expressive Trading / 9:45 - 10:30 a.m.

    John Anderson

  • Panel II - Ten Ethics Traps for Business Lawyers / 10:30 - 11:30 a.m.

    Marcia Narine Weldon

  • Break / 11:30 - 11:45 a.m.
  • Panel III - Paying for Energy Peaks: Learning from Texas' February 2021 Power Crisis / 11:45 - 12:30 p.m.

    Colleen Baker and James Coleman

  • Lunch / 12:30 - 1 p.m.
     
  • Keynote Speaker - Securities Regulation and the Supreme Court / 1 - 1:45 p.m.

    Adam Pritchard

  • Panel V - Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation / 1:45 - 2:30 p.m.

    Joan Heminway

  • Break / 2:30 - 2:45 p.m.
     
  • Panel VI - An Empirical Analysis of Shareholder Oppression Disputes / 2:45 - 3:30 p.m.

    Douglas Moll

  • Panel VII - Enforcing Benefit Corporation Reporting / 3:30 - 4:15 p.m.

    Haskell Murray

  • Closing / 4:15 - 4:30 p.m.
 

Each panel also features brief commentaries from a member of the UT Law faculty (full-time or adjunct) and a current UT Law student.  We hope that many of you can join us for all or part of the day to listen in.  Please contact me if you have any question.

[Editor's Apologia: I had planned to post on tomorrow's symposium earlier in the week.  But Monday (my normal blogging day for the BLPB) came and went; Tuesday and Wednesday, too.  At least I have a decent excuse.  I have somehow strained my shoulder and this is the first day this week that I can type comfortably with my right hand.  I finally gave in and saw a doctor on Tuesday evening.  No broken bones, but the mobility in my right upper arm is very limited, and movement in some directions and in some tasks is painful.  I am taking prednisone and a muscle relaxant (the latter only when needed) and the pain is significantly reduced unless I try to move my arm up or back.  That is a huge improvement over where I was on Tuesday.  More news when I have it.  Physical therapy starts Monday.  I am not looking forward to that!]

September 23, 2021 in Conferences, Joan Heminway | Permalink | Comments (0)