Tuesday, April 20, 2021

The Corporate Transparency Act - A Useful Guide

Business Law Today, the American bar Association's business law magazine, has published a super guide to The Corporate Transparency Act, which became effective earlier this year.  The guide comes in the form of an article, "The Corporate Transparency Act – Preparing for the Federal Database of Beneficial Ownership Information," co-authored by Robert W. Downes, Scott E. Ludwig, Thomas E. Rutledge, and Laurie A. Smiley.  The article reviews the act and clarifies a number of its key provisions.  The following background is excerpted from the introduction of the article:

The Corporate Transparency Act requires certain business entities (each defined as a “reporting company”) to file, in the absence of an exemption, information on their “beneficial owners” with the Financial Crimes Enforcement Network (“FinCEN”) of the U.S. Department of Treasury (“Treasury”). The information will not be publicly available, but FinCEN is authorized to disclose the information:

- to U.S. federal law enforcement agencies,

- with court approval, to certain other enforcement agencies to non-U.S. law enforcement agencies, prosecutors or judges based upon a request of a U.S. federal law enforcement agency, and

- with consent of the reporting company, to financial institutions and their regulators.

The Corporate Transparency Act represents the culmination of more than a decade of congressional efforts to implement beneficial ownership reporting for business entities. When fully implemented in 2023, it will create a database of beneficial ownership information within FinCEN. The purpose of the database is to provide the resources to “crack down on anonymous shell companies, which have long been the vehicle of choice for money launderers, terrorists, and criminals.” Prior to the implementation of the Corporate Transparency Act, the burden of collecting beneficial ownership information fell on financial institutions, which are required to identify and verify beneficial owners through the Bank Secrecy Act’s customer due diligence requirements. The Corporate Transparency Act will shift the collection burden from financial institutions to the reporting companies and will impose stringent penalties for willful non-compliance and unauthorized disclosures.

The Secretary of the Treasury is required to prescribe regulations under the Corporate Transparency Act by January 1, 2022 (one year after the date of enactment).  It is expected that any implementing regulations will be promulgated by FinCEN pursuant to a delegation of authority from the Secretary of the Treasury. The effective date of those regulations will govern the timing for filing reports under the Corporate Transparency Act.

I am grateful to the co-authors (two of whom are friends and ABA colleagues) for providing this helpful resource.  Now that business firms, rather than financial institutions, are bearing the burdens of disclosure in this space, it will be important for business lawyers to become familiar with the law and begin to develop best practices for its effective implementation.  I intend to provide updates in this space.

April 20, 2021 in Corporate Finance, Corporate Governance, Joan Heminway | Permalink | Comments (0)

Monday, April 19, 2021

2021 Emory Law Conference - Extension of Deadlines for Proposals and Nominations

ANNOUNCEMENT

Proposal and Nomination Deadline Extension

It is our pleasure to announce that the proposal and award nomination deadlines for Emory Law’s seventh biennial transactional law and skills education conference have been extended to 5 pm EDT May 7, 2021. Registration is open for the conference, which will be held virtually on June 4, 2021.

Join us to celebrate and explore our theme – Emerging from the Crisis: The Future of Transactional Law and Skills Education with you. This year, we have reduced the registration fee to $50 per person. Secure your space today!

Take a moment to review the Call for Proposals and submit your proposal here. Also, please share the CFP with your colleagues who may not have attended the Conference before. Consider forwarding it to adjuncts and professors teaching relevant subjects. Can you also think of any teachers who might be interested in attending or presenting? The Call for Proposals deadline is 5 p.m. EDT May 7, 2021. We look forward to receiving your proposals.

Last, but certainly not least, at this year’s Conference, we will announce the winner of the second Tina L. Stark Award for Teaching Excellence. Would you like to nominate yourself or a colleague for this award? We are currently accepting nominations for the 2021 Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills. You may submit your nomination here. The nomination deadline is 5 p.m. Friday, May 7, 2021. Please see here for more information about the nomination and selection process.

If you have questions regarding any of this information, please contact Kelli Pittman, Program Coordinator, at kelli.pittman@emory.edu or 404.727.3382.

Sue Payne | Executive Director

Katherine Koops | Assistant Director

Kelli Pittman | Program Coordinator

April 19, 2021 in Call for Papers, Conferences, Joan Heminway | Permalink | Comments (0)

Sunday, April 18, 2021

COVID-19 and Lawyers Returning to the Workplace

Just a quick follow-up to my April 12 post on COVID-19 and Lawyers Working from Home.  In that post, I indicated that law firms had been slow to adopt work from home before COVID-19 hit.  I also raised a question about the extent to which work-at-home solutions would survive the pandemic.  And I noted that "[t]here is so much I could say about all this."

I learned this week that property security solutions provider Kastle Systems International LLC has created an online "Back to Work Barometer" that tracks real estate occupancy.  Based on data reported for last week (April 12 & 13), "[t]he legal industry is returning to work at a much higher rate than other industries."  The average reported occupancy rate for all industries was 24%.  But for the legal industry, the reported average rate was 37.2%. 

Earlier this year, it was predicted that many law firms would begin to return to work in earnest in the spring.  See here.  But reports also note later return dates and continued work from home for some.  See here and here.

Culture considerations also may interact with post-COVID-19 returns to the workplace, as I briefly indicated in my April 12 post.  Maureen Naughton, Goodwin Procter's Chief Innovation Officer, recently wrote a piece published by Bloomberg Law that offers some important reflections and wise advice on the culture issue:

While a commitment to a more flexible, work-from-anywhere workplace is welcome and overdue, consider its effect on your organization’s culture and sense of community.

Culture takes a long time to build but can dissipate quickly. And culture is certainly stronger when people can spend time together; spontaneous meetings and interactions increase our sense of community, foster development and mentorship, and spark innovative ideas at a moment’s notice.

Such meetings are at the foundation of an innovative and collaborative culture and we must make a concerted effort to preserve what makes us unique while maintaining a healthy, safe environment for our clients and colleagues.

As we evaluate the post-Covid-19 workplace, we must balance the flexibility afforded by remote work with its cultural implications. It is a careful balance, which—if calibrated properly—can benefit rather than harm your culture.

I may be wrong, but I do see office culture as a key concern for law firms--and, in all honesty, for law schools, too.  The autonomy of law professors is well known.  Even before the pandemic, many had decreased their time in the office.  Weaker cultural bonds as among faculty may have impacts on faculty shared governance.

I still may have more to say on this, but I wanted to note these points while they were still fresh on my mind . . . .

April 18, 2021 in Current Affairs, Joan Heminway | Permalink | Comments (4)

Monday, April 12, 2021

COVID-19 and Lawyers Working from Home

A few weeks ago, I posted on COVID-19 and business interruption insurance, quoting from part of a forthcoming coauthored article presented at the Business Law Prof Blog symposium last fall.  This week, I am posting a few more teaser paragraphs from that same article, which focuses overall on business law issues, practice changes, and professional responsibility challenges emanating from the pandemic.  Today's excerpts focus on lawyers working from home.  Second-year UT Law student Anne Crisp is the primary author of the part of the paper that includes these paragraphs (from which footnotes have been omitted).

 . . . While the work-from-home movement was already taking off in many sectors prior to COVID-19, the legal sector had been slow to adopt this working model. Leaving aside multijurisdictional practice challenges, lawyer resistance to remote work has been attributed in large part to the perceived relationship-based nature of lawyering and the perception that at least some clients expect to meet with their legal counsel in well-appointed offices. But along came COVID-19, and lawyers could no longer avoid the pull of the work-from-home movement. If lawyers wanted to bill hours, they were going to have to work from home.

As lawyers began working from home, law offices were forced to enhance their technological resources and capabilities to meet the needs of the firm and to confront the technological challenges associated with such developments. Issues around laptop-versus-desktop use, home Wi-Fi capacity and security, and virtual private networks emerged as pressing problems to address. Lawyers, like everyone else in the world, began using videoconferencing and telecommunication platforms such as Zoom to meet with clients, colleagues, and the courts on a regular basis, rather than in specific circumstances. Lawyers adapted to the work-from-home model not by choice, but out of necessity.

Law firms also had to address security concerns that arise as a result of remote working. Malware infections, hacking, and other challenges are more difficult to prevent once workers are no longer regularly connected to a law office’s computer network. Firms with appropriate cybersecurity systems in place had to ramp up their availability to cover more workers; those without appropriate security technologies needed to acquire and implements them on an urgent basis.

Moreover, communication complications became manifest, and the need to address them holistically became important. “In a remote working world, everyone’s delegation/supervision/feedback skills must be even better—more frequent, more clear and more realistic—than usual.” For example, in a private firm, a practice group leader may need to intentionally ask how an individual is doing because the leader can no longer gauge this based on their interaction with the individual in the office. Junior lawyers in office settings must be more transparent and realistic about their own constraints as their home environments change. It has also become more important for junior lawyers to take clear ownership of the work they are doing so that senior lawyers, whose focus is on more directly helping clients navigate the issues arising, can more easily monitor who is working on what and keep track of the status of projects. Before the pandemic, communication challenges of the kinds mentioned here may have been barriers to lawyers working from home. Now, lawyers have no choice but to overcome them.

While the work-from-home movement has presented new challenges surrounding security and communication, it has also produced some positive effects. Working from home often creates a more relaxed work environment that has been shown to lead to more creativity. Additionally, lawyers are enjoying the benefits of having no commute. Many lawyers have liked working from home so much that they hope to continue to do so once the pandemic is over. It remains to be seen whether law firms will allow them to continue to do so in a post-pandemic world.

There is so much I could say about all this.  But I will confine myself here to two points, both stemming from the text of that last quoted paragraph. The positive aspects of lawyers' adaptive work-from-home lives generate their own set of challenges. 

First, law firms are making decisions about the extent to which they will allow work-from-home after the pandemic.  (So are law schools.)  The managing shareholder of a regional law firm's Knoxville office participated in my Advanced Business Associations class last week, and he indicated his concern that new and junior associates be physically present in the office in order to ensure that they are exposed and acclimate to the firm's culture. 

Second, return-to-the-workplace mandates will result in some bumpy transitions back to full in-person operations.  Child, elder, and general family care routines devised for use during the pandemic may be as (or more) difficult to unwind than they were to create.  For many, it is not an option to merely go back to the way things were before COVID-19.

I suspect that, as we come out of the pandemic, different firms will handle 2021 work location transitions in different ways based on their size, market, reputation, culture, and more.  The type of work being performed by the lawyers and client preference are likely to play specific guiding roles in the analysis.  This certainly will be an area to watch.

April 12, 2021 in Joan Heminway, Law Firms, Lawyering | Permalink | Comments (2)

Monday, April 5, 2021

Reminder: 2021 National Business Law Scholars Conference - Last Call for Papers

Just a quick reminder that paper submissions for the National Business Law Scholars Conference for this year are due on or before April 9--this Friday.  The conference is scheduled for June 17-18, 2021 and is being hosted by The University of Tennessee College of Law in a hybrid or virtual format.  Submissions can be made through the conference website.

The full call for papers is posted here.  Feel free to leave comments or questions below.  Questions also can be directed to Eric Chaffee, the member of the planning committee in charge of program structuring logistics.

April 5, 2021 in Conferences, Joan Heminway | Permalink | Comments (0)

Tuesday, March 30, 2021

COVID-19 and Business Interruption Insurance

As a teaser to a forthcoming article I coauthored with two of my students (who co-presented with me) for the Business Law Prof Blog symposium back in the fall, I offer a short excerpt on business interruption insurance litigation resulting from governmental actions forcing business closures as a result of the pandemic, focusing on a recently decided Tennessee case.

In general, business lawyers got inventive in bringing legal claims of many kinds. A federal district court case recently decided in Tennessee, Nashville Underground, LLC v. AMCO Insurance Company, No. 3:20-cv-00426 (M.D. Tennessee, March 4, 2021), offers a notable example involving the interpretations of a business interruption insurance policy. The plaintiff in the action, a Nashville bar, restaurant, and entertainment venue, claimed coverage under the food contamination endorsement in its business interruption insurance policy for the damages suffered when it was forced to close its doors by governmental orders issued in March 2020 in response to the COVID-19 pandemic. The insurer denied coverage. The court held for the defendant insurer on its motion to dismiss for failure to state a claim, finding the contract language unambiguous. The court’s conclusion in its opinion noted sympathy, in spite of the outcome.

Like many Americans, the undersigned can sympathize with Plaintiff and so many of our other small to medium-sized businesses that seem to have borne much of the brunt of the effects of the COVID-19 pandemic. One could understand if Plaintiff (or anyone else) lamented that it simply is not right that this should be the case. But it also is not right, or lawful, for a business's insurer to be on the hook for coverage it simply did not contractually commit to provide. Presumably like a myriad of other enterprises throughout this nation, Plaintiff in retrospect perhaps would have bargained for broader coverage but simply did not foresee such need before the unprecedented pandemic conditions arose in 2020. Accordingly, Plaintiff was unfortunately left without the coverage it now asks this Court to find in an insurance policy that simply does not provide it.

Nashville Underground, supra.  Sympathy notwithstanding, cases of this kind are decided on the basis of specific contract language. Although overall insurers tend to be winning in these contract interpretation battles, insureds are prevailing in some cases, at least in pretrial and summary judgment motion battles. See, e.g., Kenneth M. Gorenberg & Scott N. Godes, Update on Business Interruption Insurance Claims for COVID-19 Losses, NAT’L L. REV. (Oct. 29, 2020), https://www.natlawreview.com/article/update-business-interruption-insurance-claims-covid-19-losses; Richard D. Porotsky Jr., Recent Federal Cases in the N.D. Ohio Split on COVID-19 Business Interruption Insurance Coverage, NAT’L L. REV. (Jan. 26, 2021), https://www.natlawreview.com/article/recent-federal-cases-nd-ohio-split-covid-19-business-interruption-insurance-coverage; Jim Sams, Judge Rules in Favor of 3 Policyholders With COVID-19 Claims in Consolidated Case, CLAIMS J. (Feb. 21. 2021), https://www.claimsjournal.com/news/national/2021/02/24/302197.htm.

The opinions in these cases constitute an interesting emergent body of decisional law relevant to contract and insurance law and practice.  Along with litigation relating to, e.g., force majeure and material adverse change/effect, the legal actions interpreting language in business interruption insurance contracts are bound to offer important lessons and tips for legal counsel and their clients--a legacy likely to affect practice and litigation for many years to come.

The article from which the above quoted text (reformatted for posting here) comes, Business Law and Lawyering in the Wake of COVID-19, is scheduled for publication later this spring in Transactions: Tennessee Journal of Business Law.  I will promote the article here once the final version is available and has been posted to SSRN.  In the meantime, you have a a short preview of one part of the article in this post!

March 30, 2021 in Contracts, Insurance, Joan Heminway | Permalink | Comments (2)

Friday, March 26, 2021

Women & Business Law

Yesterday, I had the honor of leading a roundtable discussion on women and the practice of business law.  The roundtable was part of a series convened by UT Law's Student Council on Diversity and Inclusion, and this specific roundtable was hosted by our Black Law Student Association.  Here's the promotional flyer from the event.

SCDIRoundtableAnnouncement

In preparing for the session, I had occasion to review two ABA reports from the past few years: Roberta D. Liebenberg & Stephanie A. Scharf, Walking Out The Door : The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice (ABA 2019), and Destiny Peery, Paulette Brown & Eileen Letts, Left Out or Left Behind: The Hurdles, Hassles, and Heartaches of Achieving Long-term Legal Careers for Women of Color (ABA 2020). I was reminded of the fall-off in female lawyers in BigLaw over the course of their careers.  Quoting from the first report:

BigLaw is no stranger to the loss of experienced women attorneys. While entering associate classes have been comprised of approximately 45% women for several decades, in the typical large firm, women constitute only 30% of non-equity partners and 20% of equity partners. Women lawyers face many other challenging hurdles as they seek to advance into senior roles: the number of lawyers named as new equity partners at big firms has declined by nearly 30% over the past several years, and firms are increasingly relying on the hiring of lateral partners, over 70% of whom are men.

At the event, I noted this data and the principal reasons why women self-reported that they left practice. These include: care-taking obligations, workplace stress levels, responsibilities for marketing/originating business, billable hour requirements, loss of the desire to practice law, work/life balance dissatisfaction, and concerns about personal or family health.

I also noted specific difficulties faced by women of color.  In that regard, I referenced the following quote from a Black female lawyer in her late 40s (included in the second ABA report mentioned above).

Some of the barriers you can’t do [anything] about—like the(mis)perceptions people have in their own minds about your race or your sex or your background. So you start by having to overcome those negative assumptions, stereotypes, and presumptions. And then there’s the ‘black tax’ of having to demonstrate outsized achievements just to get the same opportunities as everyone else. It’s not by accident that at the firms at which I worked, every single black associate had at least two Ivy League degrees. Majority associates? Not so much.

There were no real surprises for me in these two reports. Having said that, I must note that they capture important data and reflections.  I recommend that everyone read them.

Of course, only some female law graduates (a relatively small number/percentage) start their careers in business finance or governance.  The number/percentage of female lawyers in large business law practices typically does not increase over time; it decreases.  Therefore, the number/percentage of women in those practice areas at the partner/shareholder/senior leadership level is relatively small.  (By the way, please let me know if you know where I can find some recent reliable data on all this.)  

I noted the relatively small percentage of women who enroll in my upper division advanced business law courses (a maximum in any course of 33-1/3%, and that's pretty rare).  I asked the student participants for their ideas on why more women do not take these courses or, in general, express a desire to practice business law.  Among the responses were the following: not having been exposed to business lawyers or business operations, being intimidated by the subject matter, and being concerned that too much math may be involved.  I also asked them how we might work to correct the imbalance in business law and more generally.  Students volunteered their observations and ideas.  The were thoughtful, reflecting on their own experiences while also working hard to appreciate the circumstances of others.  One of the female students pressed her male colleagues to contribute.  It was a super discussion.  Several students contacted me after the roundtable to follow up on some points.

We only had an hour together, which was barely enough time to begin to scope out these issues.  There was certainly more that could have been said had there been more time.  I invited students to continue the conversation among themselves and with me and other faculty.  I have hope they will do that.  I want to ensure that business law knowledge and practice is accessible to all, and I could use their help in accomplishing that goal.

March 26, 2021 in Joan Heminway, Law School, Teaching | Permalink | Comments (2)

Monday, March 22, 2021

2021 Emory Law Conference on the Teaching of Transactional Law and Skills

EmoryConference2021

Registration is Open!

It is our great pleasure to announce that registration is now open for the seventh biennial transactional law and skills education conference to be held virtually on June 4, 2021. Please join us to celebrate and explore our theme – Emerging from the Crisis: The Future of Transactional Law and Skills Education with you. This year, we have reduced the registration fee to $50 per person. Secure your space today!

Call for Proposals

Please take a moment to review the Call for Proposals and submit your proposal here. Also, please share the CFP with your colleagues who may not have attended the Conference before. Consider forwarding it to adjuncts and professors teaching relevant subjects. Can you also think of any teachers who might be interested in attending or presenting?

The Call for Proposals deadline is 5 p.m. April 15, 2021. We look forward to receiving your proposals.

Last, but certainly not least, at this year’s Conference, we will announce the winner of the second Tina L. Stark Award for Teaching Excellence. Would you like to nominate yourself or a colleague for this award? More information will be forthcoming regarding award eligibility and the nomination process.

If you have questions regarding any of this information, please contact Kelli Pittman, Program Coordinator, at kelli.pittman@emory.edu or 404.727.3382.

We look forward to “seeing” you in June!

Sue Payne | Executive Director

Katherine Koops | Assistant Director

Kelli Pittman | Program Coordinator

March 22, 2021 in Conferences, Joan Heminway, Teaching | Permalink | Comments (0)

Tuesday, March 16, 2021

2021 National Business Law Scholars Conference - Call for Papers

2021 National Business Law Scholars Conference
June 17-18, 2021

The University of Tennessee College of Law
Knoxville, Tennessee

Call for Papers

The National Business Law Scholars Conference (NBLSC) will be held on Thursday and Friday, June 17-18, 2021.  The 2021 conference is being hosted by The University of Tennessee College of Law.  The conference will be conducted in a hybrid or online format, as determined by the NBLSC planning committee in the early part of 2021.

This is the twelfth 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.  We expect to be in a position to offer separate programming for aspiring law professors and market entrants, as we have done in the past, likely on a separate date after the conference concludes.

Please use the conference website to submit an abstract or paper by April 9, 2021.  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 shortly after the deadline. We anticipate the conference schedule will be circulated in May.

Conference Planning Committee:

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 16, 2021 in Conferences, Joan Heminway, Research/Scholarhip | Permalink | Comments (0)

Monday, March 8, 2021

Index Managers, the SEC, and Mutual Fund Investors. Oh, My!

Friend-of-the-BLPB Bernie Sharfman and his co-author Vincent Deluard recently posted their article, How Discretionary Decision-Making Has Created Performance and Legal Disclosure Issues for the S&P 500 Index, on SSRN.  The article plays to several audiences, as noted by the authors.  The SSRN abstract follows:

When investment funds track the S&P 500, the index becomes more than just a list of 500 companies. The focus then turns to the financial and regulatory issues that arise from the discretionary decision-making of its Index Committee. The discussion of these issues and their implications should be of extreme interest to both investors and regulators. This discussion involves: how Sharpe’s equality will hold in practice, what kind of companies may still be impacted by the index effect, how we are to understand the expected returns versus risk of a broad based market portfolio, whether funds that track the S&P 500 are to be considered actively managed or passive, the S&P 500’s suitability as an “appropriate” benchmark index, and what kind of legal disclosures are required in the use of the index. As a result of our discussion, including our empirical findings, we do not find the S&P 500 index to be desirable for either tracking or benchmarking purposes, even though our proposed legal disclosures should mitigate any potential legal liability for its continued use.

Our paper makes contributions to the literature on index managers and the SEC’s disclosure policy for open-end investment management companies. Most importantly, it will help guide the investment decisions of tens of millions of investors who are currently invested in, or are considering investing in, funds that track the S&P 500.

The abstract is thought-provoking.  I am always interested in reading works that rely, illuminate, or comment on disclosure policy.  And I believe my son has invested in at least one index fund that tracks the S&P 500. Other family members also may have investments in funds of that kind.  So, I may need to read this . . . .

March 8, 2021 in Joan Heminway | Permalink | Comments (1)

Monday, March 1, 2021

Director Independence as a Double-Edged Sword

Friend of the BLPB Greg Shill's recent article, The Independent Board as Shield, is an engaging, provocative piece on board independence and the business judgment rule.  The abstract provides a taste of his argument and principal related proposal.

The fiduciary duty of loyalty bars CEOs and other executives from managing companies for personal gain. In the modern public corporation, this restriction is reinforced by a pair of institutions: the independent board of directors and the business judgment rule. In isolation, each structure arguably promotes manager fidelity to shareholder interests—but together, they enable manager prioritization. This marks a particularly striking turn for the independent board. Its origin story and raison d’être lie in protecting shareholders from opportunism by managers, but it functions as a shield for managers instead.

Numerous defects in the design and practice of the independent board inhibit its ability to curb managerial excess. Nowhere is this more evident than in the context of transactions that enrich the CEO. When executive compensation and similar matters are approved by independent directors, they take on a new quality: they become insulated by the business judgment rule. This rule is commonly justified as giving legal effect to the comparative advantage of businesspeople in their domain—in determining the price of a product, for example—and it immunizes such decisions from court challenge. But independent directors can opt to extend the rule’s protection beyond this narrow class of duty of care cases to domains that squarely implicate the duty of loyalty. The result is a shield for conflicts of interest that defeats the major objective of the independent board and important goals of corporate law more generally.

This Article proposes to eliminate the independent board’s paradoxical shield quality by ending business judgment protection for claims implicating the duty of loyalty. Judges would apply the familiar entire fairness standard instead. The clearest rationale for this reform comes from the logic of the rule itself: comparative advantage. Judges, not businesspeople, are best situated to adjudicate conflicts of interest. More broadly, the Article’s analysis suggests that the pro-shareholder reputation of the independent board is overstated and may have inadvertently fostered a sense of complacency around board power.

Greg makes some thoughtful points about existing business judgment rule doctrine in this piece and formulates a novel approach to addressing contextual difficulties with board independence doctrine.  A number of us had the privilege of hearing about and commenting on this project early on.  Nice work (as I told him)!

March 1, 2021 in Corporate Governance, Corporations, Joan Heminway, Litigation, Management | Permalink | Comments (0)

Sunday, February 28, 2021

Gonzaga Law - VAP Opening: Center for Law, Ethics, and Commerce

This comes to us from friend-of-the-BLPB, Agnieszka McPeak:

Gonzaga Law is seeking a visiting assistant professor (VAP) for its Center for Law, Ethics, and Commerce, a centerpiece of Gonzaga Law School’s identity and mission. Persons with strong academic records, a dedicated commitment to teaching, and the potential for outstanding scholarship are encouraged to apply. The position is a full-time, 9-month, visiting position beginning in August 2021, with the potential to renew for one (but no more than one) additional year (contingent upon funding). The fellow may be permitted to work entirely remotely.

The successful candidate will teach up to three courses in the academic year in areas related to the Center and its mission, including at least one upper-level Business Law elective. Experiential and clinical teaching are also optional. The candidate will work closely with the Director of the Center for Law, Ethics, and Commerce to plan and participate in activities related to the Center’s goals and mission. In addition, the VAP will be invited to participate in faculty workshops and will be offered a budget for scholarship and travel. More information here: https://gonzaga.peopleadmin.com/postings/15150

I know Agnieszka (who directs the Center for Law, Ethics, and Commerce) is excited to hire for this position, which is likely to be attractive to aspiring law professors who may have a business/innovation interest and expertise.  Please send folks her way!

February 28, 2021 in Ethics, Joan Heminway, Jobs | Permalink | Comments (0)

Monday, February 22, 2021

Lateral Hiring Announcement: Iowa Law - Health Law/Policy and Environmental Law

The University of Iowa College of Law anticipates hiring one lateral faculty member in the Health Law and Policy area and one lateral faculty member in the Environmental Law area.

QUALIFICATIONS: Consistent with the mission and responsibilities of a top-tier public research university, we are interested in candidates who are (or have the potential to become) recognized scholars and teachers and who will participate actively in the life of the College of Law.

APPLICATION PROCEDURE: To apply, candidates should submit a letter of interest, CV, a list of three references, and a law school transcript through Jobs@UIOWA, https://jobs.uiowa.edu, refer to Requisition #74104.  The University of Iowa College of Law is deeply committed to a community of excellence, equity, and diversity and welcomes applications from women, underrepresented minorities, persons with disabilities, LGBTQI+ individuals, and other candidates who will contribute to the diversification and enrichment of ideas and perspectives. Candidates who can contribute to these goals are encouraged to apply and to identify their strengths in this area.

ABOUT UIOWA: Iowa Law provides the ideal setting for professional growth as a law teacher and legal scholar. As a small school within a Big Ten university, we offer an environment that values community and civility, maximizes collaboration, and encourages exploration across legal fields. As a result, Iowa Law produces graduates who are grounded, collegial, and quietly effective leaders. Iowa Law students learn how to work together and communicate effectively with one another—crucial skills in the legal profession. And as part of a world-class research university, our students and faculty can partner with experts across campus in fields as varied as engineering, public policy, health care, and more—a significant advantage in preparing for legal issues that cross fields of expertise and global borders.

The University of Iowa is a comprehensive public research university known for excellence in research, teaching, and engagement at all levels. A member of the Association of American Universities since 1909 and the Big Ten Conference since 1899, the University of Iowa is home to one of the most acclaimed academic medical centers in the country, as well as globally recognized leadership in the study and craft of writing. Iowa is known for excellence in both the arts and sciences, offering world-class undergraduate, graduate, and professional academic programs in a wide variety of fields. Importantly, the University of Iowa is committed to recruiting and retaining the most talented and diverse faculty and staff, which involves providing opportunities for employees to “Build a Career | Build a Life.” For more information about local work/life resources, including dual-career support, please see: https://worklife.uiowa.edu.

The University of Iowa is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran.

ABOUT IOWA CITY: Founded in 1847, the Universe of Iowa is located alongside the picturesque Iowa River in Iowa City. The town has a rare combination of urban, metropolitan offerings and affordable, tree-lined neighborhoods. You’ll find people here who are genuinely interested in each other and their community. It’s invigorating—and a wonderful place to live. Iowa City routinely receives top rankings in multiple categories: one of the best small metropolitan areas for doing business; one of the best cities in America for singles; and one of the top smart places to live. In Iowa City there’s always something to do. The city is home to numerous Big Ten sporting events. Known for renowned authors and up-and-comers from all over the globe, UNESCO has designated Iowa City a “City of Literature”—one of only seven in the world. And of course, Iowa City is a site of presidential politics. Various points around town are regular stops for candidates during the Iowa Caucuses. For more information about Iowa City, visit Think Iowa City: https://www.thinkiowacity.com.

For questions, please contact Faculty Appointments Committee at: lawmail-FAC@uiowa.edu.

February 22, 2021 in Joan Heminway, Jobs | Permalink | Comments (0)

Monday, February 15, 2021

UK Law Market & Tech Conference - This Thursday and Friday!

The following news of a virtual conference (hosted by the University of Kentucky Rosenberg College of Law, with support from the John S. and James L. Knight Foundation) comes to us from Ramsi Woodcock at UK Law/Business & Econ:
 
Please join us as we think through antitrust, data, taxation, consumer welfare, property, bigness, and tech policy from the perspective of the distribution of wealth at Inframarginalism & Internet: A Conference on Markets as Wealth Distributors, and the Implications for Tech Policy, which will be held online on Thursday, February 18 and Friday, February 19.
 
 
 
Speakers include:
 
-Herbert Hovenkamp
-Fiona Scott Morton
-A. Douglas Melamed
-Thomas Philippon, author of The Great Reversal: How America Gave Up on Free Markets
 
-Katharina Pistor, author of The Code of Capital: How the Law Creates Wealth and Inequality
 
-Chris Sagers, author of United States v. Apple: Competition in America
-David J. Teece
-Susan Crawford, author of Fiber: The Coming Tech Revolution--and Why America Might Miss It
-Gerrit De Geest, author of Rents: How Marketing Causes Inequality
 
Panels include:
Antitrust Futures
The Meaning and Control of Bigness
Redistribution Through Antitrust and Consumer Law
Taxation and Tech
Data and Power
Rent Theoretic Approaches to Property Law
A New Rent Theory?
 
 
 

February 15, 2021 in Conferences, Joan Heminway, Technology, Web/Tech | Permalink | Comments (0)

Duquesne VAP Openings (Technology & Heath Law Among the Needs . . .)

Visiting Assistant Professor in Law

Faculty Posting Date: February 12, 2021

To Apply: apply.interfolio.com/84257


Duquesne University School of Law, located in Pittsburgh, Pennsylvania, invites applications to fill up to two full-time visiting assistant professors beginning 2021-2022 academic year. Each position will have a one-year appointment that may be renewable for a second year. VAP will teach courses in legal education. We seek colleagues who can contribute to the diversity of our campus community and wish to advance diversity, equity, and inclusion through teaching and service.

DUTIES AND RESPONSIBILITIES:

Teach Up to 12 credit hours for the year. Assigned courses will vary, but likely curricular needs include: torts, professional responsibility, technology, privacy, and health law.

REQUIRED QUALIFICATIONS:

Juris Doctorate from an ABA-accredited law school.

Preferred Qualifications

Experience teaching legal education.

Evidence of significant practical experience in an area of curricular need.

APPLICATION INSTRUCTIONS:

Catholic in its mission and ecumenical in spirit, Duquesne University values equality of opportunity as an educational institution and as an employer. We aspire to attract and sustain a diverse faculty that reflects contemporary society, serves our academic goals that enriches our campus community. We particularly encourage applications from members of underrepresented groups and support dual-career couples through our charter membership in this region's HERC.

We invite applicants for this position to learn more about our University and its Spiritan heritage by visiting our Mission Statement. http://www.duq.edu/about/mission-and-identity/mission-statement. Those invited to campus for an interview may be asked about ways in which they see their talents contributing to the continued growth of our community and furthering its mission.

Application review will begin immediately and will continue until the position is filled. Duquesne University uses Interfolio to collect all faculty job applications electronically. Applicants should submit a letter of intent, a curriculum vitae, and contact information for three professional references via Interfolio http://apply.interfolio.com/84257. The letter of intent should include comments on ability to teach in flexible environments, including online, hybrid, and in-person classroom settings. Applicants are encouraged to describe in their letter of intent how their scholarship contributes to building and supporting a diverse and inclusive community. Applicants with questions about the position may contact Ann Marie Schiavone at schiavonea@duq.edu.


Duquesne University was founded in 1878 by its sponsoring religious community, the Congregation of the Holy Spirit. Duquesne University is Catholic in mission and ecumenical in spirit. Motivated by its Catholic identity, Duquesne values equality of opportunity both as an educational institution and as an employer.

February 15, 2021 in Joan Heminway, Jobs, Technology | Permalink | Comments (0)

Monday, February 8, 2021

Tomorrow In Securities Regulation: Investors

I tell my students that the participants in securities transactions are "the three Is" or  "I3": issuers, intermediaries, and investors.  Tomorrow morning, having covered the definition of a security and the concept of materiality, I offer some foundational words on investors. 

What to tell?  Of course, I will talk a bit about investment theory, the investor protection policy and mechanisms of federal securities law, the composition/demographics of the typical equity ownership of a public company, etc.  But what do I say about GameStop Corp.?  Set forth below is a chart summarizing the trading in GameStop common stock for the past five days: (courtesy of Google Finance):

Screen Shot 2021-02-08 at 11.54.19 PM

Who are the investors in the market for GameStop common stock, options, and short positions now?  Who will they be in a month or six months or a year (assuming a trading market can be sustained)?  And what do the changes in GameStop's investor profile say about the firm itself, about the New York Stock Exchange, and about various related aspects of securities regulation?  

There remain few answers to the fundamental question of who owns or is trading in GameStop's publicly traded common stock.  Nevertheless, there are many worthy conversation starters around the GameStop phenomenon that raise interesting opportunities for longer-term exploration.  More on all this as time marches on.  "Once more unto the breach, dear friends, once more . . . ."

[Editorial note (2/9/2021): I should have mentioned that I do plan to use John Anderson's post from Saturday (which echos points he made in our UT Law roundtable last week) to talk about whether some of the people he mentions or alludes to (thrill-seekers, political speech purveyors, trading gamers, populist performers, nostalgic market-watchers) are or should be considered to be investors.]

February 8, 2021 in Joan Heminway, Securities Regulation, Teaching | Permalink | Comments (2)

Sunday, February 7, 2021

Northern Illinois Law is Hiring (and Has Business Law Needs . . .)

NIULogo

POSITION ANNOUNCEMENT

NORTHERN ILLINOIS UNIVERSITY COLLEGE OF LAW invites applications for an anticipated opening for an entry-level tenure-track faculty position beginning August 2021. Duties include engaging in high quality research and teaching, as well as being an active participant in law school and university service. Applicants must hold a J.D. degree from an ABA accredited law school, or a foreign law school equivalent, and must provide evidence of the potential for engaging in high quality research and teaching.

Preferred qualifications include record of scholarly publication, teaching experience (particularly in a law school), legal practice experience, strong law school record, law journal membership, and clerkship experience.

We will consider candidates with a broad range of teaching and research interests, but the successful candidate will be expected to teach at least one first-year course (which may include Constitutional Law I: The Federal System). Our upper-level needs include, but are not limited to, Business Law, Commercial Law, Criminal Law and Procedure, Tax, Trusts and Estates, and skills courses. Applications are encouraged from women, members of minority groups, and others whose background and experience would contribute to the diversity of the law school community.

If you wish to apply, please go to the position posting at the NIU applicant tracking system at https://employment.niu.edu/postings/55269 where you will find a full description of the position (including preferred qualifications) along with a list of documents you will need to submit for the search committee’s consideration.

Please direct questions to the search committee chair, Professor Marc Falkoff, at mfalkoff@niu.edu, or to Tita Kaus, Administrative Assistant to the Dean, at 815-753-1068 or tkaus@niu.edu. For full consideration, applications should be received by March 1, 2021.

February 7, 2021 in Joan Heminway, Jobs | Permalink | Comments (0)

Monday, February 1, 2021

Prediction: GameStop Will Be 2021's Great Gift To Business Law Professors

Wow.  All I can say is . . . wow.  Last Monday, GameStop Corp. was, for me, just a dinosaur in the computer gaming space--a firm with a bricks-and-mortar retail store in our local mall that I have visited maybe once or twice.  What a difference a week makes . . . .

Now, GameStop is: frequent email messages in my in box; populist investor uprisings against establishment institutional investors; concern about students investing through day-trading accounts; news and opinion commentary on all of the foregoing (and more); compulsion to inform an under-informed (and, in some cases, bewildered) community of friends and family.  This change of circumstances, which is centered on, but not confined to, the volatile market for GameStop's common stock, raises many, many questions--legal questions and factual questions.  Some are definitively answerable, others are not.

The legal questions run the gamut from possibilities of securities fraud (including insider trading) and market manipulation, to the governance of trading platforms, the propriety of trading limitations and halts, and the authority and control of clearinghouses.  Co-blogger Ben Edwards published a post here last Thursday on the trading halts in GameStop stock, the role of clearinghouses, and the possibility of market manipulation.  Others also have written about these and other legal issues--including the role of the U.S. Securities and Exchange Commission as the cop on the beat (see, e.g., here and here).

But there are few answers to these legal queries given that many facts remain unknown.  Who are the short-sellers in these stocks?  Who are the community members on electronic bulletin boards (and elsewhere) urging active trading in the stock of GameStop and other firms that have been subject to significant short-selling that has led to perceived under-valuation by others in the market?  Who are the populist traders actively bidding up the price of these firms?  What knowledge do all of these people have about GameStop and the trading of its securities?  Assumptions are being made about all of these things and more.  However, our current knowledge is limited and, as time progresses, the composition of these groups undoubtedly has changed and will continue to change as traders rapidly enter and exit the market for these securities.  

As many of our law schools hold forums on the GameStop phenomenon (UT Law has a roundtable featuring some of your favorite BLPB editors on Wednesday), more legal and factual questions will be raised.  The situation will be dynamic, and regulators and policymakers will enter the fray in unknown (and perhaps unanticipated) ways.  As I teach Securities Regulation and Advanced Business Associations this semester, all of this will be happening.  Some of the topics of conversation would not normally be part of my course plans.  But, like others I know who teach business law courses, I am pivoting to meet the need to respond to these evolving circumstances in our securities markets.  Throughout, there are many roles that lawyers (and law professors) are playing and will continue to play.  I suspect GameStop will be an asset this semester in educating our students on securities law and much more.

February 1, 2021 in Corporate Finance, Joan Heminway, Securities Regulation, Teaching | Permalink | Comments (4)

Monday, January 25, 2021

The Job-Seeking Cover Letter: An Exemplar

Over six years ago, I began writing about the job-seeking cover letter as an important piece of the career development and execution puzzle.  My first post focused on the essential elements and formatting of an appropriate cover letter for a job search.  My second cover letter post, written a bit more than a year later, honed in on best practices for creating the body of the letter--the part of the letter that does the key substantive work in making a case with the employer that you deserve an interview, principally by showing the employer that y0u have something the employer needs or finds valuable.  A key element of that post was the its emphasis on introduction of the "PAR" method, which I maintain is a key to both cover letters and job interviews.  About six months after that second post, I wrote a third post on networking letters.

That last post was published in July of 2016.  That just does not seem possible.  It cannot have been that long ago!  But it is.  Time flies when you are having fun, as they say.

It may go without saying, but I have continued to give resume, cover letter, and job search communication advice to law students and lawyers on a regular basis.  In these interactions, two things have been coming up with some frequency recently.  The first is the difference between a CV and a resume.  I will leave that to a future post.  The second is what the body of a well-drafted cover letter reads like.  I illustrate that here by posting a simple form of cover letter that illustrates many points from my posts.     

*     *     *

[Your Name]
[Address]
[Telephone Number]
[Email Address]


[Date]

[Name of Recipient]
[Employer]
[Address]
[City/State/Zip Code]

Re: Summer Associate - [Your Name]

Dear [Name of Recipient]:

I am a [first/second]-year student at [Law School Name] and I write to apply for a position as a summer associate in your [Specific Geographic Location] office. I am drawn to [Employer] because of its strong practice in corporate transactional law and because of its location in the [Geographic Region]. I am interested in the ways in which the firm’s emphasis on innovation operates in serving clients.

My curriculum at [Law School Name] has already given me experiential training in business law that I desire to leverage in my work next summer. For example, in my Business Associations course, I participated as part of a three-person team of students in an oral examination relating to a failed Tennessee distillery partnership based on facts drawn from a recently published Tennessee state court opinion. We were given a week to assess client facts and then met with the senior partner in our law firm (portrayed by our professor) to discuss possible courses of action to benefit the client. This assignment was instrumental in developing critical problem-solving skills and detail-orientation and allowed me to apply partnership and limited liability company law through oral communication in a real-world setting.

I also gained valuable research and writing experience in my [Name of Course] class in the fall semester. [Describe research in legal context]. I compiled the information obtained through that research into a [length] paper that examined [describe thesis or analysis]. The long-term nature of this assignment allowed me to develop and refine fact-finding, written composition, and time management skills while engaging in the analysis of [generalized description of legal issue resolved].

My resume is attached. I look forward to the opportunity to interview for a summer associate position with your firm. I can be reached at the telephone number or email address set forth above. I appreciate your time and consideration.

Yours truly,

[Signature]

[Typewritten Name]

Attachment

*     *     *

I hope that posting this exemplar is helpful to law students seeking employment and to the law professors and others who advise them.  I post it here for that purpose and also in the hopes that it will generate commentary that is similarly useful in career counseling and in revising the form.  So, have at it.  What do you find worthwhile about the exemplar letter?  What do you find less compelling?  Post your comments here or send me a private message.

January 25, 2021 in Joan Heminway, Jobs | Permalink | Comments (0)

Monday, January 18, 2021

In Praise of Practice Problems (and Jen Reise!)

As we launch into another online/hybrid semester of legal education, I want to share a new article by Jen Randolph Reise: Moving Ahead: Finding Opportunities for Transactional Training in Remote Legal Education. Here’s the abstract:

This article builds on the many calls for teaching business acumen and transactional skills in law school with a timely insight: the shift to remote legal education creates opportunities to do so, in particular by incorporating practice problems and mini-simulations in doctrinal courses. Weaving together the literature on emerging best practices in online legal education, cognitive psychology, and the science of teaching and learning, Professor Reise argues that adding formative assessments and experiential education is effective in teaching and is critical in remote learning.

Offering vivid examples from her experience teaching Business Organizations online, she urges legal instructors to use the opportunity presented by the shift to remote education to incorporate problems and simulations as an effective way to motivate students to prepare for class, to expose them to transactional practice skills, and to effectively teach them key doctrinal concepts.

For those of you who do not know Jen, she is currently a Visiting Professor at Mitchell Hamline School of Law (Twitter: @jenreise).  She and I have communicated/traded information on transactional business law teaching.  I am grateful that she brought this article to my attention--and effectively authored this post!  I look forward to continuing to engage with her on teaching and scholarship in our mutual areas of interest.

January 18, 2021 in Business Associations, Joan Heminway, Teaching | Permalink | Comments (0)