Monday, May 13, 2024

Celebrating Law Leadership!

IPL(Symposium2024-SaveDate)

I have written in the past about the intersections of leadership and law, including business law.  See, for example,  here, here, here, here, and here.  And I was privileged to be the Interim Director, for over three years, of the institute for Professional Leadership at The University of Tennessee College of Law.  I find there is such a strong connection between leadership and business law teaching and practice . . . .

We are celebrating the tenth anniversary of the Institute for Professional Leadership this fall.  The celebration, which will take place on Thursday, October 24 and Friday, October 25, will include a gala dinner and a symposium featuring workshops, a call-for-papers panel, and a series of expert panels.  The "save the date" notice is included above.  I hope you will consider responding to the forthcoming call for proposals and papers.  But regardless, I hope you will consider attending. Feel free to reach out to me with any questions.

May 13, 2024 in Joan Heminway, Law School | Permalink | Comments (0)

Tuesday, May 7, 2024

ESG Greenwashing

ESG greenwashing has been getting attention among legal academics.  In Rainbow-Washing, 15 Ne. U. L. Rev. 285 (2023), LMU Law's John Rice explores the

increasingly common, but destructive, practice in which corporations make public-facing statements espousing their support of the LGBTQIA+ community . . . to draw in and retain consumers, investors, employees, and public support, but then either fail to fulfill the promises implicit in those statements or act in contravention to them. 

My own forthcoming article in the University of Pennsylvania Journal of Business Law, presented at the November 2023 ILEP-Penn Carey Law symposium honoring Jill Fisch, mentions the increasing notoriety of ESG greenwashing and cites to John's article.

Last week, UVA Law Professor Naomi Cahn called out ESG greenwashing in Forbes, citing to a study to be published in the Journal of Accounting Research that finds "firms’ ESG rhetoric may not match their reality."  She suggests that "a meaningful analysis of a firm’s ESG commitment requires much further digging, and ultimately it requires meaningful oversight from outside the ESG community on what should be disclosed and the accuracy of the reports."  The article references a forthcoming book coauthored by Cahn, June Carbone (Minnesota Law) ,and Nancy Levit (UMKC Law) and quotes Minnesota Law Professor Claire Hill.  (Hat tip to Claire for leading me to this Forbes piece.)  It's a solidly good read.  I added a citation to it in my forthcoming article.

I suspect more will be done in this space academically and practically as ESG continues to occupy the minds of legal academics, lawyers, and business principals.  I will be continuing to work in this area, focusing next on corporate compliance issues.  Stay tuned for news on that project (and for a notification about the publication of my forthcoming University of Pennsylvania Journal of Business Law article referenced above).

May 7, 2024 in Compliance, Corporations, Current Affairs, Joan Heminway, Securities Regulation | Permalink | Comments (0)

Monday, May 6, 2024

2024 Corporate & Securities Litigation Workshop

Corporate & Securities Litigation Workshop: 

Call for Papers 

UCLA School of Law, in partnership with the University of Illinois College of Law, University of Richmond School of Law, and Vanderbilt Law School invites submissions for the Eleventh Annual Workshop for Corporate & Securities Litigation. This workshop will be held on September 20-21, 2024 in Los Angeles, California. 

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 at any stage. Authors whose papers are selected will be invited to present their work at a workshop hosted by UCLA School 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 [email protected] by Friday, June 7, 2024 Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified in early July. 

Questions 

Any questions concerning the workshop should be directed to the organizers: Jim Park ([email protected]), Jessica Erickson ([email protected]), Amanda Rose ([email protected]), and Verity Winship ([email protected]). 

May 6, 2024 in Call for Papers, Corporations, Joan Heminway, Securities Regulation | Permalink | Comments (0)

Monday, April 22, 2024

Fiduciary Duties: A Tale of Two Families

Check out the third issue of volume 73 of the DePaul Law Review!  It includes a series of papers emanating from the HBO series Succession.  As you may recall, I posted a call for papers for this issue about a year ago.  Most of the papers in the issue came from a venture originated and organized by Susan Bandes and Diane Kemker called the Waystar Royco School of Law.  I wrote about that enterprise here.  

I participated in the Waystar Royco School of Law Zoom meetings as the “Roy/Demoulas Distinguished Professor of Law and Business.”  I presented on fiduciary duty issues comparing the principals of two family businesses--The Demoulas family from Northern Massachusetts and Succession's Roy family from New York.  You can find my Zoom session here (Passcode: #hN+7J5N).  That presentation resulted in an essay that I wrote for the DePaul Law Review issue as well as an advanced business associations course based on the Succession series. I finish teaching that course this week.  I also presented on the topic of my Succession essay at the Popular Culture Association conference back in March.  I include a screenshot of my cover slide below.

I just posted the essay to SSRN.  The piece is entitled What the Roys Should Learn from the Demoulas Family (But Probably Won’t).  The SSRN abstract is set forth below.

This essay offers a comparison of the actions taken by members of two families: the Demoulas family, best known as owner-operators of northeastern regional supermarkets, and the Roy family featured in HBO's series "Succession." The comparative appraisal focuses principally on the selfish pursuit of individualized financial, social, and familial status by key members of both the Demoulas and Roy families as they relate to the law of business associations (principally corporate law). At the heart of the matter is the legal concept of fiduciary duty. A comparison of the two families’ exploits reveals that lessons earlier learned by the Demoulas family (and observers of the multifaceted, multi-year litigation involving them and their business undertakings) fail to positively impact the destiny and legacy of Succession’s Roy family—at least as far as the Roy family story has been told to date. Although hope may be limited, there is still time for the remaining Roy family members to take heed and make changes.

To execute and comment on the comparison of these two families, the essay starts by outlining relevant information concerning legally recognized fiduciary duties in the corporate (and, to a lesser degree, partnership) contexts. Next, the essay offers background information about the Demoulas and Roy families and their respective businesses (both organized as corporations) and selected business dealings and governance, noting actual and potential breaches of fiduciary duty in each case. A brief conclusion offers comparative observations about the actions taken by members of the Demoulas and Roy families that contravene or challenge applicable fiduciary duties and the opportunity for general reflection. Of particular note is the observation that the ability of corporate directors and officers to comply with their fiduciary duties may become more difficult and complicated when integrating family dynamics and business succession issues into business decisions in a family business context.

I have enjoyed the research and teaching I have done in this area over the past year.  It always is nice to take a fresh approach to familiar concepts.  I daresay my students have felt the same way in covering business associations topics through the lens of the happenings in the series.  They certainly have been attentive and communicative, which is what I had been shooting for in teaching corporate and other business associations law through the course.  I am happy to answer questions about the course and provide my syllabi to anyone who wants to see what I assigned and did for the course.  Just ask.

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April 22, 2024 in Business Associations, Corporate Finance, Corporations, Current Affairs, Family Business, Joan Heminway, Research/Scholarhip, Teaching | Permalink | Comments (0)

Monday, April 15, 2024

I Still Think My Disclosure Advice to Clients is the Same After Macquarie

I appreciate Ann's super helpful post on omissions liability after the U.S. Supreme Court's decision in Macquarie Infrastructure Corp. et al. v. Moab Partners, L. P., et al.  The hair splitting in that opinion is, in my view, dubious at best.  The Court's creation of a legally significant concept of "pure omissions" in a public company disclosure context is doctrinally counterfactual.  The omission to state a fact required to be disclosed under a mandatory disclosure rule like Item 303 of Regulation S-K necessarily occurs in a veritable river of disclosures in SEC filings and more generally and has the potential of making those disclosures misleading.  If material, such an omission should be actionable as deceptive or manipulative conduct under Section 10(b) of and Rule 10b-5 under the Securities Exchange Act of 1934, as amended.  Period.

Of course. civil liability would require proof of all elements of the claim, including (even for public enforcement officials) the requisite state of mind or scienter.  Private class action plaintiffs also would have heightened pleading burdens.  And a criminal prosecution can only be sustained if the predicate conduct is willful, as provided in Section 32(a) of the Exchange Act.

The point is that there is no such thing as a "pure omission."  Investors logically rely on the interplay between and among public statements made in filings and elsewhere.  If X exists for Public Company A, and Public Company A is required to disclose X in a public filing but does not do so, investors will view and assess all of the relevant public information about Public Company A assuming X does not exist for Public Company A.  If the omission makes existing disclosures misleading, is material, is made withe the action-appropriate state of mind, and deceives or manipulates, the basis for a Rule 10b-5 cause of action against Public Company A plainly exists based on the language of Section 10(b) and Rule 10b-5.  Back in January, wben I first wrote about Macquarie and an amicus brief I coauthored for the case (which you can fined here), I stated as much.  It seems Ann agrees when she says that "whatever the language of 10b-5(b), it seems entirely unobjectionable that it should be considered a “manipulative or deceptive device or contrivance” within the broader meaning of Section 10(b) to intentionally withhold information you have a duty to disclose – from some other source – in order to mislead someone else."  (Her further analysis follows.)

As Ann's post notes, much remains to be seen and said about the impact of Macquarie, and the Court has signaled that the true wisdom we can gain from its opinion in Macquarie may be constrained to actions brought under Rule 10b-5(b) and to certain factual contexts.  As a result, I have determined it is still appropriate--and wise--to caution public company clients that their failure to comply with mandatory disclosure requirements may make them subject to, among other things, Section 10(b)/Rule 10b-5 litigation.  One should, of course, note (among other things) that the omission would have to be material, make other disclosed facts misleading, and be made recklessly or willfully in order for liability to attach. 

Do you disagree?  Do you believe there are "pure omissions" in a public company disclosure context? Let me know.

 

April 15, 2024 in Ann Lipton, Joan Heminway, Securities Regulation | Permalink | Comments (0)

Thursday, April 11, 2024

Widener Law Seeks Visiting Professors for 2024-25

Widener University Commonwealth Law School is seeking to hire two visiting professors for the 2024-25 academic year.  We have strong needs in Property, Legal Methods and Contracts.  Additional courses are flexible but we have additional needs in the areas of environmental law, intellectual property, wills & trusts, administrative law and other upper level courses.  Interested persons should submit a cover letter and resume to Professor Robyn Meadows, Chair, Faculty Appointments Committee, at [email protected].  

April 11, 2024 in Joan Heminway, Jobs | Permalink | Comments (0)

Monday, April 8, 2024

Trial Court Blesses Shadow Insider Trading

A federal jury found Matthew Panuwat liable for insider trading late last week.  As you may recall, the U.S. Securities and Exchange Commission (SEC) brought an enforcement action against Mr. Panuwat in the U.S. District Court for the Northern District of California back in August 2021.  In that legal action, the SEC alleged that Mr Panuwat violated Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5, seeking a permanent injunction, a civil penalty, and an officer and director bar. The theory of the case, as described by the SEC in a litigation release, was founded on Mr. Panuwat's deception of his employer, Medivation, Inc., by using information obtained through his employment to trade in the securities of another firm in the same industry.

Matthew Panuwat, the then-head of business development at Medivation, a mid-sized, oncology-focused biopharmaceutical company, purchased short-term, out-of-the-money stock options in Incyte Corporation, another mid-cap oncology-focused biopharmaceutical company, just days before the August 22, 2016 announcement that Pfizer would acquire Medivation at a significant premium. Panuwat allegedly purchased the options within minutes of learning highly confidential information concerning the merger. According to the complaint, Panuwat knew that investment bankers had cited Incyte as a comparable company in discussions with Medivation and he anticipated that the acquisition of Medivation would likely lead to an increase in Incyte's stock price. The complaint alleges that Medivation's insider trading policy expressly forbade Panuwat from using confidential information he acquired at Medivation to trade in the securities of any other publicly-traded company. Following the announcement of Medivation's acquisition, Incyte's stock price increased by approximately 8%. The complaint alleges that, by trading ahead of the announcement, Panuwat generated illicit profits of $107,066.

The SEC's theory of liability, an application of insider trading's misappropriation doctrine as endorsed by the U.S. Supreme Court in U.S. v. O'Hagan, has been labeled "shadow trading."

The Director of the SEC's Division of Enforcement, Gurbir S. Grewal, put it plainly in responding to the jury verdict in the Panuwat case on Friday:

As we’ve said all along, there was nothing novel about this matter, and the jury agreed: this was insider trading, pure and simple. Defendant used highly confidential information about an impending announcement of the acquisition of biopharmaceutical company Medivation, Inc., the company where he worked, by Pfizer Inc. to trade ahead of the news for his own enrichment. Rather than buying the securities of Medivation, however, Panuwat used his employer’s confidential information to acquire a large stake in call options of another comparable public company, Incyte Corporation, whose share price increased materially on the important news.

Yet, many assert that the SEC's theory in Panuwat broadens the potential for SEC insider trading violations and enforcement.  See, e.g., here, here, and here. They include:

  • a wide class of nonpublic information that may be determined to be material and give rise to an insider trading claim;
  • the expansive scope of insider trading's requisite duty of trust and confidence (and the potential importance of language in an insider trading compliance policy or confidentiality agreement in defining that duty); and
  • the potentially large number of circumstances in which employees may be exposed to confidential information about their employer that represents a value proposition in another firm's securities.

Three of us on the BLPB have held some fascination regarding the Panuwat case over the past three years.  Ann put the case on the blog's radar screen; John later offered perspectives based on the language of Medivation's insider trading compliance policy; and I offered comments on John's post (and now offer this post of my own).  I am thinking we all may have more to say on shadow trading as additional cases are brought or as this case further develops on appeal (should there be one).  But in the interim, we at least know that one jury has agreed with the SEC's shadow trading theory of liability.

April 8, 2024 in Ann Lipton, Current Affairs, Financial Markets, Joan Heminway, John Anderson, Securities Regulation | Permalink | Comments (0)

Monday, April 1, 2024

Finfluencers and the Reasonable Retail Investor

Calling attention today to Sue Guan's paper, Finfluencers and the Reasonable Retail Investor, posted on SSRN and forthcoming to the University of Pennsylvania Law Review Online.  The abstract is copied in below.

Much recent commentary has focused on the dangers of finfluencers. Finfluencers are persons or entities that have outsize impact on investor decisions through social media influence. These finfluencers increasingly drive investing and trading trends in a wide range of asset markets, from stocks to cryptocurrency. They do so because they can provide powerful coordination mechanisms across otherwise diffuse investor and trader populations. Of course, the more influence wielded over their followers, the easier it is for finfluencers to perpetrate fraud and manipulation.

The increase in finfluencing has highlighted a gray area in the securities laws: a finfluencer's statements may not be factually untrue or clearly deceptive, but they can be interpreted as misleading depending on the context and the particular beliefs held by the finfluencer’s social media followers. Moreover, such statements can harm investors who buy or sell based on their interpretation of the finfluencer's activity. In other words, finfluencers can easily profit off of their followers' trading activity while steering clear of the securities laws.

A recent case has narrowed finfluencers' ability to do so. This Piece argues that In re Bed Bath and Beyond provides a path to holding finfluencers accountable even when they have not made clearly untrue statements. In considering materiality, In re Bed Bath and Beyond focuses on the reasonable retail investor. This places primacy on retail investors’ interpretation of social media activity and narrows a gap in securities oversight, demonstrating that existing securities laws can be flexible enough to deter and punish a significant portion of problematic finfluencer behavior. In doing so, it opens a path forward for harmed retail investors to seek redress from careless finfluencers.

Sue offers a video summary here

In this work, Sue takes on one of my favorite topics: materiality.  She sees the potential for courts to use the reasonable retail investor--as opposed to the reasonable investor--as the reference point for materiality analysis in securities fraud actions.  Truly interesting.

Social media does move markets.  Investors, retail investors, act on what they read in social media.  They may even act based on interpretations of emojis, as  Sue suggests.  I appreciate her taking on the legal aspects of market behavior in this context.  I am confident more will be said about this as additional cases are brought.

April 1, 2024 in Joan Heminway, Research/Scholarhip, Securities Regulation | Permalink | Comments (0)

Saturday, March 30, 2024

Remembering Roberta Karmel

I learned earlier this week of the death of Brooklyn Law Professor Roberta Karmel.  Roberta was extraordinary, and I miss her already.  Much has been written about her role in our profession--including her service as the first female commissioner at the Securities and Exchange Commission.  I will only add a few personal reflections here.

Roberta was both exacting and compassionate--traits that we sometimes think of as being mutually exclusive.  Small in stature, she somehow was still formidable.  When I first met her in a setting where she was commenting on academic work, I was impressed and intimidated.  Despite my extroversion, I was hesitant to introduce myself and reach out to her in friendship.  When I later admitted that to her, she laughed and (in that inimitable voice we all know and will remember) let me know how silly that was.

Roberta was the honored keynote speaker at our 2009 law graduation (hooding) ceremony at The University of Tennessee College of Law.  She was invited by a student committee that understood well her significance to the law and legal education communities.  She shared details of her life and career with us.  It was inspirational for me, even though I knew parts of the story.  Hearing that history in her own voice was priceless.

I was blessed to be part of a symposium held back in May 2021 to honor Roberta's career.  My paper from that symposium reflects on and extends an earlier published piece of her work.  I offered a post on that paper here.  As I note in that post, having the opportunity to review and dissect Roberta's work helped me in my own.

Thinking about all of this today does make me sad. Roberta's wisdom and voice will no longer add new ideas to the mix.  However, there also is cause for gratitude and hope.  She has left a strong legacy--one that we all can continue to reflect on and use in our work for many years to come.

March 30, 2024 in Joan Heminway, Research/Scholarhip, Securities Regulation, Service | Permalink | Comments (0)

Wednesday, March 20, 2024

2024 National Business Law Scholars Conference - Extension of Submission Deadline

Please note that the deadline for submission of proposals for the National Business Law Scholars Conference has been extended to April 1!  The revised Call for Papers follows.  I hope to see many of you there.

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 National Business Law Scholars Conference (NBLSC) 
June 24-25, 2024 
Call for Papers 

The National Business Law Scholars Conference (NBLSC) will be held on Monday and Tuesday, June 24-25, 2024, at The University of California, Davis School of Law. 

This is the fifteenth 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. 

Submission Guidelines: 

Please fill out this form to register and submit an abstract by Monday, April 1, 2024. Please be prepared to include in your submission the following information about you and your work: 

Name 
E-mail address 
Institutional Affiliation & Title 
Paper title 
Paper description/abstract 
Keywords (3-5 words) 
Dietary restrictions 
Mobility restrictions 

If you have any questions, concerns, or special requests regarding the schedule, please email Professor Eric C. Chaffee at [email protected]. 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 late April. 

Conference Organizers: 

Afra Afsharipour (University of California, Davis, School of Law) 
Tony Casey (The University of Chicago Law School) 
Eric C. Chaffee (Case Western Reserve University School of Law) 
Steven Davidoff Solomon (University of California, Berkeley School of Law) 
Benjamin Edwards (University of Nevada, Las Vegas Boyd School of Law) 
Joan MacLeod Heminway (The University of Tennessee College of Law) 
Nicole Iannarone (Drexel University Thomas R. Kline School 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 20, 2024 in Call for Papers, Conferences, Joan Heminway | Permalink | Comments (0)

Monday, March 18, 2024

Representing Elon Musk

Sometimes, the scholarly enterprise offers one the opportunity to deeply learn while sharing embedded knowledge.  I never thought that my 2022 Southeastern Association of Law Schools discussion group on Elon Musk and the Law would turn into such a rich learning experience.  But it did.  

In organizing the group, I knew folks would focus on all things Twitter (especially as the year proceeded).  But because of the kind offer of the Stetson Law Review to host a symposium featuring the work of the group and publish the proceedings, I was able to dig in a bit deeper in my work, which focused on visioning what it would be like to represent Elon Musk.  The resulting article, "Representing Eline Musk," can be found here.  The SSRN abstract follows.

What would it be like to represent Elon Musk on business law matters or work with him in representing a business he manages or controls? This article approaches that issue as a function of professional responsibility and practice norms applied in the context of publicly available information about Elon Musk and his business-related escapades. Specifically, the article provides a sketch of Elon Musk and considers that depiction through a professional conduct lens, commenting on the challenges of representing or working with someone with attributes and behaviors substantially like those recognized in Elon Musk.

Ultimately (and perhaps unsurprisingly, for those who have followed Elon Musk’s interactions with the law in a business setting), the article concludes that representing Elon Musk or one of his controlled businesses would be a tough professional assignment, raising both typical and atypical professional responsibility issues. Taking on an engagement in which Elon Musk is the client or a control person would require deliberate lawyer leadership, including (among other things) patience, mental toughness, and empathy. As a result, the lawyer would be required not only to have the required legal expertise, sensitivity to professional conduct regulation, and practical experience to carry out the representation, but also to understand and know how to employ their talent, personality, character strengths, and leadership style in a demanding and mutable lawyering context.

The well-considered comments of so many folks helped to move this work along.  While my author footnote mentions some, it could not mention all.  As I thought through issues of client wealth, power, mental health, and neurobiological status, those who know more than I--personally and professionally--were essential to my assessments. 

I know that there is a lot more that can (and should) be written on representing clients in the varied lot of personal circumstances that life presents.  I hope that I presented my thoughts in this piece in a way that is sensitive to the myriad issues involved in describing and considering client attributes and conditions.  I also hope this work will encourage more reflection and writing on related issues.

March 18, 2024 in Conferences, Current Affairs, Ethics, Joan Heminway, Lawyering, Wellness | Permalink | Comments (0)

Tuesday, March 5, 2024

Global Conversations in International Business Transactions

Hat tip to Kish Parella regarding the following call for papers and roundtable!

DC Roundtable FINAL CFP

March 5, 2024 in Call for Papers, Conferences, International Business, Joan Heminway | Permalink | Comments (0)

Monday, March 4, 2024

Corporate Transparency Act Held Unconstitutional

A U.S. District Court judge sitting in the Northeastern Division of the Northern District of Alabama found the Corporate Transparency Act (affectionately referred to in short form as the CTA) unconstitutional as detailed in a memorandum opinion issued on Friday.  The opinion granted the plaintiffs, the National Small Business United (NSBU) and Isaac Winkles, an NSBA member, their summary judgment motion on this basis.  The accompanying final judgment permanently enjoined the Secretary of the Treasury and other government defendants, as well as "any other agency or employee acting on behalf of the United States," from enforcing the Corporate Transparency Act against the plaintiffs in the litigation.

Many of us business law profs--and all of our business law practice brethren--have been following the CTA, endeavoring to gain a more comprehensive understanding of its provisions and fashioning advice on compliance.  The CTA, enacted in 2021 and effective as of January 1, 2024, requires nonexempt companies (domestic or foreign corporations, limited liability companies, and other entities formed or, in the case of foreign entities, registered to do business in any U.S. state or tribal jurisdiction) to disclose certain information, including about their beneficial owners, to the Financial Crimes Enforcement Network (FinCEN), part of the U.S. Treasury Department.  Exempt firms include (among others) “large operating companies” with a presence in the U.S., entities with a class of securities registered under the Securities Exchange Act of 1934, as amended (or registered under the Investment Company Act of 1940, as amended, or the Investment Advisers Act of 1940, as amended), and controlled or wholly owned subsidiaries of certain exempt firms.

The March 1 memorandum opinion specifically holds that the U.S. Congress acted outside the scope of its constitutional power in enacting the CTA.  In holding the CTA unconstitutional, the court found that the congressional enactment of the CTA was not authorized under the Commerce Clause, Congress's taxing power, or the Necessary and Proper Clause and could not be justified as incidental to the exercise by Congress of its express legislative authority.  As to the Commerce Clause--which has been interpreted broadly in many contexts--the court noted that "the CTA does not regulate economic or commercial activity on its face."  The court also found that the CTA does not have a substantial effect on interstate commerce.  In essence, the court finds the CTA analogous to incorporation--a state entity structure and governance matter and not a matter of interstate commerce.

It will be interesting to see if there is any reaction at the federal level or any fallout in other federal trial courts.  The memorandum opinion is well written and easy to follow.  Having said that, although I am no constitutional law scholar, it seems that the court's reasoning is subject to attack on a number of points.  I will continue to keep my ear to the ground on this.

March 4, 2024 in Constitutional Law, Corporations, Current Affairs, Joan Heminway, LLCs | Permalink | Comments (3)

Monday, February 26, 2024

Status and Corporate Stakeholders

Check out High-Status Versus Low-Status Stakeholders, an intriguing paper authored by one of our business school brethren, Justin Pace.  In this work, Justin approaches an important, yet difficult, topic at the intersection of corporate governance and the class divide.  The SSRN abstract follows.

The literature on stakeholder theory has largely ignored the difficult and central issue of how judges and firms should resolve disputes among stakeholders. When the issue is addressed, focus has largely been on the potential for management to use stakeholder theory as cover for rent seeking or on disputes between classes of stakeholders. Sharply underappreciated is the potential for disparate interests within a stakeholder class.

That potential is particularly acute due to a (largely education-driven) stark and growing class divide in the United States. There is a substantial difference between the interests of a highly educated professional and managerial elite and a pink-collar and blue-collar working class who mostly do not hold four-year degrees. Despite their smaller numbers, the professional and managerial elite will frequently win out in intra-stakeholder disputes with working class stakeholders due to their greater status, power, and influence.

Because this class divide is cultural, social, and political as well as economic, these disputes will go beyond financial pie splitting to culture war issues. This threatens to be destabilizing for both the republic and individual firms and undermines both the practical and ethical arguments for the stakeholder theory.

I also have been engaged by the idea that no class of stakeholders is homogeneous.  Business law scholars certainly could do a lot more work fleshing our salient differences of interest among stakeholders of a single type (including shareholders).  I (along with many others) have been known to note that not all shareholders have the same interests, for example. 

I look forward to digging into Justin's article in more depth.  Based on my review so far, there are insights in it for many different business law scholars.  (Co-blogger John Anderson might enjoy his references to virtue theory, for example . . . .)  Anyway, give it a look.

February 26, 2024 in Corporate Governance, Joan Heminway | Permalink | Comments (0)

Wednesday, February 21, 2024

Call for Papers - Global Conversations in International Business Transactions

Tuesday, February 20, 2024

Richmond Law Seeking Spring 2025 Business Law Visitor

From friend-of-the-BLPB Jessica Erickson:

The University of Richmond School of Law is looking for a visitor next spring (2025) in the business law area.  Specifically, we are looking for coverage for our Mergers & Acquisitions course, as well as either Securities Regulation or Business Associations. If you might be interested, please reach out to Kristen Osenga, our Associate Dean for Academic Affairs, at [email protected].  I am also happy to answer any questions about the school and our fabulous students and faculty.

February 20, 2024 in Joan Heminway, Jobs | Permalink | Comments (0)

Monday, February 19, 2024

Baiardi Endowed Law Speaker Series - Wayne State Law

WayneLawLogo(2)

I have the privilege and honor to be in Detroit today to present the second annual Baiardi lecture at Wayne State University Law School.  Wayne Law is a bit of a second home for me (a status it enjoys with several other law schools).  I have presented at two symposia here (publishing twice, as a result, with the Wayne Law Review).  Also, Wayne Law was the academic pied à terre of Peter Henning, who was a trusted and dear mentor (and an accomplice in reasoning through insider trading and applied corporate governance questions) until his untimely death.

My lecture addresses aspects of a joint project I previewed at the National Business Law Scholars Conference at Tennessee Law last June.  The project is the brainchild of my Tennessee Law colleague Tomer Stein and involves taking a new approach to the ongoing debate about federalizing corporate law.  The talk offers some practical applied thoughts on the project and is entitled "Visioning (Not Advocating or Discounting) Federal Corporate Law." I undoubtedly will have more to say on this topic as our work on the project progresses.  But if you think of or come across anything you deem relevant to the cause and have time to contact me or Tomer, I know we would be grateful for your insights and suggestions.

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[Please note that, although the notice above says the day of the week is a Thursday, I am speaking today--Monday.]

February 19, 2024 in Conferences, Corporations, Joan Heminway | Permalink | Comments (0)

Sunday, February 18, 2024

Seeking Applicants for the Executive Director of the Lowell Milken Institute for Business Law and Policy

POSITION OVERVIEW

Position title: Executive Director of the Lowell Milken Institute for Business Law and Policy

Salary range: A reasonable estimate for this position is $200,000 to $250,000

APPLICATION WINDOW

Open date: October 30, 2023

Most recent review date: Sunday, Jan 7, 2024 at 11:59pm (Pacific Time)
Applications received after this date will be reviewed by the search committee if the position has not yet been filled.

Final date: Sunday, Mar 31, 2024 at 11:59pm (Pacific Time)
Applications will continue to be accepted until this date, but those received after the review date will only be considered if the position has not yet been filled.

POSITION DESCRIPTION

The Lowell Milken Institute for Business Law and Policy (“Institute”) is seeking an Executive Director with substantial practical experience in business law and policy to plan, oversee and execute the work of the Institute. The Institute is, by design, a dynamic one and the Executive Director will have significant opportunity to creatively shape the Institute’s mission and initiatives together with key faculty and leaders at UCLA School of Law. The Institute supports and expands educational opportunities, job-search support, academic scholarship, and policy analysis in business law and tax law. The goals of the Institute are to train the next generation of leaders in business law and to be an important resource for both scholars and practitioners in analyzing current issues in business law and tax law and developing policy solutions in response to those issues. The Executive Director will lead a talented team, and will oversee the Institute’s core programs, fundraising, and operation.

The full position description can be found here. Hat tip to friend-0f-the-BLPB Andrew Verstein.

February 18, 2024 in Joan Heminway, Jobs | Permalink | Comments (0)

Cincinnati Law - Corporate Law Center Director Search

The University of Cincinnati College of Law is currently undertaking a search for a new director of our Corporate Law Center. A description is below.  Hat tip to Kate Jackson.

About the Center

The Corporate Law Center at the University of Cincinnati College of Law was founded in 1987.  Its mission is to carry out  programs related to the education and training of students and others in the field of corporate law.  The Center has historically fulfilled its mission in a variety of ways, including the following: Awarding CLC fellowships to incoming law students, hosting an annual symposium devoted to trending topics in business law, supporting research, coursework, and other academic activities related to corporate law, sponsoring the student-led Business Law Society at the College of Law, supporting the Entrepreneurship and Community Development Clinic, which provides transactional legal services to start-ups, small businesses, and non-profit organizations; supporting the Patent & Trademark Clinic, which provides intellectual property legal services to individuals and businesses throughout the Cincinnati entrepreneurial ecosystem, and administering the Business Law Concentration for current law students.

Many of these activities continue to be enormously valuable. As part of the creation of a vision and strategic plan, the new Director will undertake a full programmatic review of the CLC and determine what kind of restructuring and reimagining is necessary to bring the CLC to the next level, as the leading national center of its kind.  Additional activities in this regard may include the creation of additional educational opportunities for students, a mentoring program, the establishment of an advisory board, and roundtables and seminars for members of the bar.

Job Overview

The College of Law seeks an innovative and dynamic leader to reinvigorate and reimagine its storied Corporate Law Center ("CLC").  Reporting directly to the Dean and working closely with its Academic Director, the new Director of the CLC will be responsible for defining a vision for the CLC, developing the resources to carry the vision out, and raising the profile of the CLC so that it is properly recognized as one of the premier centers of the College of Law. 

The ideal candidate will be collaborative and visionary, with experience in transactional law and a passion for the educational mission of the College of Law.  The candidate's background will reflect the potential to build strong and lasting partnerships with various constituencies both within and outside the institution to advance the mission of the Corporate Law Center.  The ideal candidate will also demonstrate the capacity to tailor academic and nonacademic programming to meet the unique needs of law students interested in transactional law.  Finally, the candidate will have a demonstrated track record of bringing a vision from its original conception through to full implementation.  

The position is structured as a two-year term, with the potential for extensions if the CLC is successful in obtaining funding to support the position for a longer period. 

Standard Days Worked: M-F
Type of Appointment: Full-Time (12 Months)
Work Location:  In-person.  The office location is University of Cincinnati College of Law, 2925 Campus Green Drive, Cincinnati, Ohio 45221.

Essential Functions

  • Undertake a full programmatic review of the CLC's current activities.
  • Create a vision and a long-term strategic plan for the CLC.
  • Develop the resources necessary to carry out the plan. 
  • Build partnerships across campus and to the Cincinnati business community.
  • Research, design, and implement high quality programming in the area of corporate law.
  • Provide educational outreach to the transactional legal community through events, workshops, and collaboration with applicable partners.
  • Collaborate with College of Law leadership, faculty, and staff, as well as campus and community members.
  • Maintain data and provide reports on Center activities, as well as assessment of outreach and other efforts.
  • May provide direct and/or indirect supervision to exempt and non-exempt staff (i.e., hiring/firing, performance evaluations, disciplinary action, approve time off, etc.).
  • Perform related duties based on the needs of the Corporate Law Center.

Minimum Requirements

  • Demonstrated capacity for developing a vision and creating and carrying out a strategic plan.
  • Substantial capacity for fundraising.
  • Commitment to working collaboratively and building partnerships to advance the mission of the CLC and the College.
  • Strong communication skills.
  • Deep commitment to creating a culture of inclusive excellence and belonging.
  • Five years post-J.D. work experience in corporate legal practice or a related field.
  • Juris Doctor.

Additional Qualifications Considered

  • Experience with law teaching.
  • A record of published scholarship in corporate law and related fields.

Application Information

  • Interested and qualified applicants must apply online and include (i) a cover letter of interest, and (ii) a resume.  
  • Applications without a cover letter and resume will not be considered for the position. Please use the additional documents feature as needed for these items.

February 18, 2024 in Joan Heminway, Jobs | Permalink | Comments (0)

Monday, February 5, 2024

Packin and Alon-Beck on Board Observers

I had the opportunity to attend one of the sessions in the Interdisciplinary Workshop on Corporations, Private Ordering, and Corporate Law last week.  The program was co-hosted by Foundations of Law and Finance (Goethe University Frankfurt, Center for Advanced Studies) and Columbia Law School.  Luckily for me, the piece of the program I attended featured Nizan Geslevich Packin presenting a work-in-progress she is co-authoring with Anat Alon-Beck entitled Board Observers: Shadow Governance in the Era of Big Tech.

Although a draft of the paper is not yet posted, here is the SSRN abstract:

This Article examines the rise in corporate governance practice of appointing board observers, especially in the context of private equity, venture capital (VC), and corporate venture capital (CVC). Board observers are non-voting members attending board meetings to gain knowledge and insight. They arguably also provide valuable feedback, an outside perspective, and can even help ensure corporate operations. In recent years, board observer seats – a notion also existing in the nonprofit sector – have become increasingly popular in the for-profit business world, where investors have various market and business justifications for using board observers, including corporate governance considerations, minimizing litigation exposure, navigating antitrust issues, CFIUS regulation, and ERISA concerns. It was not until November 2023 that mainstream media started paying more attention to the concept of board observers, after OpenAI, the corporate entity that brought the world ChatGPT, gave Microsoft a board observer seat following the drama in OpenAI’s boardroom. But what the mainstream media did not explore in its coverage of the board observer concept was its seemingly less interesting nature as a non-voting board membership, which was an important element in the complex relationship between OpenAI and Microsoft. This signaled deepening ties between the two companies that also eventually got the attention of the DOJ and FTC, as well as the influential role of CVC in funding and governing the research and development of OpenAI.

This Article makes several contributions. First, it provides an account of the board observer phenomenon, which has significantly developed and become a common practice in recent years given antitrust and national security considerations and scrutiny. Second, it presents fresh insights, groundbreaking empirical findings, and data on the scope of this corporate governance vehicle. Third, it considers the theoretical circumstances and implications of these developments. It argues for a shift in contractual innovation in deal-making and regulatory reviews, necessitating the development of corporate culture norms emphasizing disclosure and prioritizing company interests, communication, and trust-building as crucial elements in service of board observers. Finally, the Article considers the practical implications of these developments and explains why more empirical data collection and further research are necessary to determine whether current corporate governance mechanisms require modification in connection with liability, accountability, and fiduciary duties for board observers.

As someone who had to deal with board observer requests and provisions in an earlier corporate finance era, I was fascinated by the work.  So much of what their research is revealing felt familiar (even though much also has changed): what is old can be new again.  I look forward to reading the draft and learning more.

February 5, 2024 in Corporate Finance, Corporate Governance, Corporations, Joan Heminway, Management | Permalink | Comments (0)