Saturday, May 28, 2016

Delaware Bill Proposes Appraisal Right Restrictions

A former law student of mine who practices in Delaware just alerted me to this Delaware Online article

The article describes the proposed bill as follows:

House Bill 371 would restrict the number of corporate shareholders who can petition the court for a stock appraisal to only those who own $1 million or more of a company's stock or 1 percent of the outstanding shares, depending on which is less. Currently, any shareholder can ask the court to appraise their shares. Those motions are typically filed when a company is the target of an all-cash acquisition and the shareholder wants to ensure the buyer is paying a fair price for the stock. (emphasis added)

Corporate governance expert Charles Elson is quoted as saying:

. . . he understands the argument on both sides. "Anytime you attempt to restrict the rights of a smaller shareholder, it is going to be controversial whether or not the approach is warranted"

The article cites co-authored work by my Nashville neighbor, Randall Thomas (Vanderbilt Law):

A study published earlier this month by four noted corporate law professors, including Wei Jang of Columbia Business School and Randall S. Thomas of Vanderbilt Law School, found that hedge funds have accounted for nearly 75 percent of the amount awarded in all appraisal actions over the last few years. The study also found that 32 percent of the cases involved stakes below $1 million or 1 percent of a company's stock.

Go read the entire article. 

May 28, 2016 in Business Associations, Corporate Governance, Corporations, Delaware, Haskell Murray, Lawyering, Litigation | Permalink | Comments (1)

Monday, May 9, 2016

Monday Business Law Fun: Goldilocks, Consumer Protection, and Over-Caffeinating

[Please keep in mind as you read this post that my daughter is a Starbucks partner.  Any pro-Starbucks bias in this post is unintended.  But you should factor in my affiliation accordingly.]

Maybe it's just me, but the publicity around the recent suit against Starbucks for putting too much ice in their iced beverages made me think of Goldilocks and her reactions to that porridge, those chairs, and those beds.  First it was McDonald's, where the coffee was too hot.  Now it's Starbucks, where the coffee is too cold--or, more truthfully, is too watered down from frozen water . . . .  (And apparently I missed a Starbucks suit earlier this year on under-filing lattes . . . .)  

Different types of tort suits, I know.  I always felt bad about the injury to the woman in the McDonald's case, although the fault issue was truly questionable.  The recent Starbucks case just seems wrong in so many ways, however.  This is a consumer dispute that is best addressed by other means.  I admit to believing this most recent suit is actually an abuse of our court system.

How might a customer who is truly concerned about a substandard beverage attempt to remedy the wrong?

Continue reading

May 9, 2016 in Commercial Law, Current Affairs, Joan Heminway, Lawyering, Litigation | Permalink | Comments (0)

Wednesday, March 2, 2016

A Modern Business Tragedy: Chesapeake Energy and Aubrey McClendon

I have long followed the trials and tribulations of Chesapeake Energy and founder Aubrey McClendon, and I had been planning to write about yesterday's indictment of McClendon for bid rigging in a couple weeks, after I gathered more information.  About an hour ago, though, reports broke that former Chesapeake CEO Aubrey McClendon died today.  According to CNBC:

Aubrey McClendon, a founder and former chief executive of Chesapeake Energy, died in a single-car crash Wednesday at age 56, a day after he was charged with conspiring to rig bids for oil and natural gas leases.

McClendon crashed into an embankment while traveling at a "high rate of speed" in Oklahoma City just after 9 a.m. Wednesday morning, said Capt. Paco Balderrama of the Oklahoma City Police Department. Flames engulfed McClendon's vehicle "immediately," and it was burnt so badly that police could not tell if he was wearing a seatbelt, he said.

Before going any further, my thoughts go out to his friends and family.  Regardless of how anything else comes together, their loss is real, and I feel badly for them.  

In years past, I have questioned how Chesapeake conducted some of their business, including their use of entities and their leasing practices in Michigan and whether loan practices McClendon used personally were at odds with his fiduciary duties to Chesapeake.  This round of bid rigging allegations were new to me (a Michigan case settled last year), and I was researching this set of allegations to see what I thought about this case.  I remain curious whether it was a case of "singling him out" unfairly, as he claimed, or were there some strong evidence of more.  

And even if he were being singled out, was it because the practice didn't occur or is it just how everyone did business?  That question remains an open one, even if the case against McClendon is now closed.  I hope to learn more in the coming weeks.   

As to the impact on his former company, CNBC notes
Chesapeake said Tuesday that it did not expect to face criminal prosecution or fines related to McClendon's charges. The company's stock, which was already substantially higher Wednesday, briefly added to gains following news of McClendon's death.
That's a cold reminder that the market (and the news coverage of the market) moves on quickly.  It's good that life continues on, of course, but sometimes reminders of that are still striking.  

March 2, 2016 in Corporations, Joshua P. Fershee, Litigation, White Collar Crime | Permalink | Comments (0)

Tuesday, February 23, 2016

Guest Post: Why NFL Players Might Want the NFL to Win Its Appeal of Brady v. NFL

Following is a guest post from by J. Scott Colesanti and Madeline Rasmussen. Scott is a former contributing editor to this Blog, and I am happy to share the post post below.  This is sports and labor law post, to be sure, but employment issues, especially big time sports-related ones, are business law, too.  

Why NFL Players Might Want the NFL to Win Its Appeal of Brady v. NFL

by J. Scott Colesanti and Madeline Rasmussen

It feels like weeks since we saw a meaningful NFL contest (well, actually it has been a little over a week).  But it is nonetheless still weeks until the Brady appeal before the Second Circuit in March.  Should the vacatur of the superstar’s 4-game suspension in “Deflategate” be upheld, alternative means of both implementing and reviewing NFL punishment seem likely, alternatives none too comforting for future disciplined football players.

Continue reading

February 23, 2016 in Employment Law, Litigation, Sports | Permalink | Comments (0)

Wednesday, February 10, 2016

New Scholarship on Hedge Fund Activism Urges Courts to Adopt Enhanced Scrutiny of Boards' Defensive Actions

Bernard Sharfman, in his new article on SSRN, The Tension Between hedge Fund Activism and Corporate Law, argues that hedge fund activism for control of a publicly traded corporation is a positive corrective measure in corporate governance.  After asserting that hedge fund activism should be permitted, Sharfman, argues, controversially, that courts should depart from traditional deference to a corporate board's decision making authority under the business judgment rule.  Alternatively, Sharfman urges courts to adopt a heightened standard of scrutiny when reviewing defensive board actions against hedge funds.

[Hedge Fund Activism] has a role to play as a corrective mechanism in corporate governance and it is up to the courts to find a way to make sure it continues to have a significant impact despite the courts’ inclination to yield to Board authority. In practice, this means that when the plaintiff is an activist hedge fund and the standard of review is the Unocal test because issues of control are present, a less permissive approach needs to be applied, requiring the courts to exercise restraint in interpreting the actions of activist hedge funds as an attempt to gain control. 

If there are no issues of control, then Board independence and reasonable investigation still needs to be the focus. That is, before the business judgment rule can be applied, the courts need to utilize an enhanced level of scrutiny in determining whether the Board is truly independent of executive management or any other insider such as a fellow Board member. As previously discussed, Board independence is critical to maximizing the value of HFA. Moreover, reasonable investigation of the activist hedge fund’s recommendations should be required to justify Board action taken to mute the fund’s influence. Like the Unocal test, the burden of proof for establishing independence and reasonable investigation needs to be put on the Board. In sum, what is required in the court’s review of Board actions to mute the influence of an activist hedge fund is something similar to the first prong of the Unocal test except independence and reasonable investigation is now focused on the Board’s evaluation of the fund’s recommendations, not the threat to corporate policy and effectiveness.

Sharfman uses Third Point LLC v. Ruprecht, the 2014 Delaware case invovling Sotheby's poison pill, to illustrate how the traditional (deference) standard of review leads to boards being able to defeat hedge fund activists.

An interesting comment published in the Yale Law Journal by Yale Law Student Carmen X.W. Lu, Unpacking Wolf Packs, offers an alternative view of the Third Point case emphasizing the coalition of hedge funds acting in that case and the court's skepticism of wolf pack activist investors. 

-Anne Tucker

 

February 10, 2016 in Anne Tucker, Corporate Governance, Corporations, Delaware, Litigation, Securities Regulation | Permalink | Comments (1)

Joseph Slights Nominated for Delaware Court of Chancery

This week, Delaware Governor Jack Markell nominated Joseph R. Slights, III for the position held by retiring Vice Chancellor John Noble on the Delaware Court of Chancery.

Judge Slights previously served a 12-year term on the Delaware Superior Court. Immediately prior to his nomination, Judge Slights was a commercial litigation partner at the firm of Morris, James, Hitchens & Williams LLP.

Once Vice Chancellor Noble retires, Vice Chancellor Laster will become the judge with the most experience serving on the Delaware Court of Chancery. Vice Chancellor Laster was sworn into his position in October of 2009. It has been a quick 6+ years; it seems like that was just yesterday.

I outsource the details of Joseph Slights' nomination below:

February 10, 2016 in Business Associations, Current Affairs, Delaware, Haskell Murray, Litigation | Permalink | Comments (0)

Wednesday, January 20, 2016

Second Circuit Affirms High Misconduct Standard for Caremark Claims in Cent. Laborers’ Pension Fund v. Dimon

In early January, the Second Circuit Court of Appeals ruled in Cent. Laborers’ Pension Fund v. Dimon to affirm the dismissal of purported shareholder derivative claims alleging that directors of JP Morgan Chase--the primary bankers of Bernard L. Madoff Investment Securities LLC (“BMIS”) for over 20 years--failed  to institute internal controls sufficient to detect Bernard Madoff’s Ponzi scheme.  The suit was dismissed for failures of demand excuse.  Plaintiffs contended that the District Court erred in requiring them to plead that defendants “utterly failed to implement any reporting or information system or controls,” and that instead, they should have been required to plead only defendants’ “utter failure to attempt to assure a reasonable information and reporting system exist[ed].” (emphasis added).  The Second Circuit declined, citing to In re General Motors Co. Derivative Litig., No. CV 9627-VCG, 2015 WL 3958724, at *14–15 (Del. Ch. June 26, 2015), a Chancery Court opinion from earlier this year that dismissed a Caremark/oversight liability claim.  In In re General Motors the Delaware Chancery Court, found that plaintiffs' allegations that:

[T]he Board did not receive specific types of information do not establish that the Board utterly failed to attempt to assure a reasonable information and reporting system exists, particularly in the case at hand where the Complaint not only fails to plead with particularity that [the defendant] lacked procedures to comply with its . . . reporting requirements, but actually concedes the existence of information and reporting systems. . . .

In other words, the Plaintiffs complain that [the defendant] could have, should have, had a better reporting system, but not that it had no such system.

The Second Circuit's opinion in Central Laborers' affirms that Caremark claims require allegations misconduct sufficient to satisfy a failure of good faith, and cannot rest solely on after-the-fact allegations of failed reasonableness of the corporate reporting system.  

-Anne Tucker

 
 

January 20, 2016 in Anne Tucker, Corporate Governance, Corporations, Delaware, Financial Markets, Litigation, Shareholders | Permalink | Comments (0)

Wednesday, October 14, 2015

Tamika Montgomery-Reeves Nominated to Become a Vice Chancellor on the Delaware Court of Chancery

TMR

I am happy to report that Tamika Montgomery-Reeves, currently a partner in Wilson Sonsini Goodrich & Rosati's Wilmington, DE office, has been nominated to become a Vice Chancellor on the Delaware Court of Chancery.

Tamika and I first met as summer associates at Miller & Martin after our 1L years. We both clerked on the Delaware Court of Chancery, albeit for different judges and during different years. We then worked together in the same practice group, as fellow associates, at Weil Gotshal in NYC.

All of that to say, I have worked with Tamika, or I guess I will soon be saying "Vice Chancellor Montgomery-Reeves," on a number of occasions and think she will do an excellent job. Tamika has both the intelligence and personality to be a global ambassador for the court, as a number of Delaware judges before her have been. She will be a great addition to the Delaware Court of Chancery. I look forward to reading her opinions and following her career.

October 14, 2015 in Business Associations, Current Affairs, Delaware, Haskell Murray, Litigation | Permalink | Comments (1)

Friday, October 2, 2015

Is CSR BS?

Today I will present on a panel with colleagues that spent a week with me this summer in Guatemala meeting with indigenous peoples, village elders, NGOs, union leaders, the local arm of the Chamber of Commerce, a major law firm, government officials, human rights defenders, and those who had been victimized by mining companies. My talk concerns the role of corporate social responsibility in Guatemala, but I will also discuss the complex symbiotic relationship between state and non-state actors in weak states that are rich in resources but poor in governance. I plan to use two companies as case studies. 

The first corporate citizen, REPSA (part of the Olmeca firm), is a Guatemalan company that produces African palm oil. This oil is used in health and beauty products, ice cream, and biofuels, and because it causes massive deforestation and displacement of indigenous peoples it is also itself the subject of labeling legislation in the EU. REPSA is a signatory of the UN Global Compact, the world's largest CSR initiative. Despite its CSR credentials, some have linked REPSA with the assassination last month of a professor and activist who had publicly protested against the company's alleged pollution of rivers with pesticides. The "ecocide," that spread for hundreds of kilometers, caused 23 species of fish and 21 species of animals to die suddenly and made the water unsafe to drink. REPSA has denied all wrongdoing and has pledged full cooperation with authorities in the murder investigation. The murder occurred outside of a local court the day after the court ordered the closing of a REPSA factory. On the same day of the murder other human rights defenders were also allegedly kidnaped by REPSA operatives although they were later released. Guatemala's government is reportedly one of the most corrupt in the world-- the President resigned a few weeks ago and went to jail amidst a corruption scandal-- and thus it is no surprise that the government has allegedly done little to investigate either the ecocide or the murder.

The other case study concerns Tahoe, a Canadian mining company with a US subsidiary that used private security forces who shot seven protestors. Tahoe is facing trial in a Canadian court, a case that is being watched worldwide by the NGO community. Interestingly, the company's corporate social responsibility and the board's implementation are indirectly at issue in the case. Tahoe feels so strongly about CSR that it has a  CSR blog and quarterly report online touting its implementation of international CSR standards, including its compliance with the UN Guiding Principles on Business and Human Rights, the Voluntary Principles on Security and Human Rights, the Equator Principles (related to risk management for project finance in social risk projects), the IFC Performance Standards and a host of other initiatives related to grievance mechanisms for those seeking an access to remedy for human rights abuses. Tahoe is in fact a member of the CSR Committee of the International Bar Association. Nonetheless, despite these laudable achievements, none of the families that my colleagues and I met with in the mining town mentioned any of this nor talked about the "Cup of Coffee With the Mine" program promoted in the CSR report. Of course, it's possible that Tahoe has made significant reforms since the 2013 shootings and if so, then it should be applauded, but the families we met in June did not appear to give the company much credit. Instead they talked about the birth defects that their children have and the fact that they and their crops often go for days without water. They may not know the statistic, but some of the mining processes use the same amount of water in one hour that a family of four would use in 20 years.

Of note, the Guatemalan government only requires a 1% royalty for the minerals mined in the country rather than the 30% that other countries require, although legislation is pending to change this. Guatemala also provides its police and military as guards for the mines to protect the Canadian company from its own citizens. Guatemala probably helps shore up security because even though 98% of the local citizens voted against the mine, the mine commenced operations anyway despite both international and Guatemalan human rights law that requires free, prior, and informed consent (see here). 

Given this turmoil, perhaps it was actually the more risky climate of mining in Guatemala that caused Goldcorp to sell a 26% stake in Tahoe earlier this year rather than the stated goal of focusing on core assets. Norway's pension fund had already divested in January due to Tahoe's human rights record in Guatemala. Maybe these investors hadn't read the impressive Tahoe CSR report. With the background provided above, my abstract for my book chapter and today's talk is below. I welcome your thoughts in the comment section or by email at mnarine@stu.edu.

North Americans and Europeans have come to expect even small and medium sized enterprises to engage in some sort of corporate social responsibility (CSR). Large companies regularly market their CSR programs in advertising and recruitment efforts, and indeed over twenty countries require companies to publicly report on their environmental, social and governance (ESG) efforts. Definitions differ, but some examples may be instructive for this Chapter. For example, the Danish government, which mandates ESG reporting, defines CSR as considerations for human rights, societal, environmental and climate conditions as well as combatting corruption in business strategy and corporate activities. The United States government, which focuses on responsible business conduct, has explained, CSR entails conduct consistent with applicable laws and internationally recognised standards. Based on the idea that you can do well while doing no harm, RBC is a broad concept that focuses on two aspects of the business-society relationship: 1) the positive contribution businesses can make to economic, environmental, and social progress with a view to achieving sustainable development, and 2) avoiding adverse impacts and addressing them when they do occur.

Business must not only have a legal license to operate in a country, they must also have a social license. In other words, the community members, employees, government officials, and those affected by the corporate activitiesthe stakeholdersmust believe that the business is legitimate. It is no longer enough to merely be legally allowed to conduct business. Corporate social responsibility activities can thus often add a veneer of legitimacy.

With this in mind, what role does business play in society in general and in a country as complex as Guatemala in particular? Guatemalan citizens, including over two dozen different indigenous groups, have gone from fighting a bloody 36-year civil war to fighting corrupt leadership that often appears to put the interests of local and multinational businesses above that of the people. For example, although the Canadian Trade Commission has an office with resources related to CSR in Guatemala, some of the most egregious allegations of human rights abuses relate to mining companies from that country. Similarly, many of the multinationals that proudly publish CSR reports and even use the buzzwords social license in slick videos on their websites are the same corporations accused in lawsuits by human rights and environmental defenders. How do these multinationals reconcile these acts? How and when will consumers and socially-responsible investors hold corporations accountable for these acts? Is the Guatemalan government abdicating its responsibility to its own people or is the government in fact complicit with the multinationals? And finally, do foreign governments bear any responsibility for the acts of multinationals acting abroad? This chapter will explore this continuum from corporate social responsibility to corporate accountability using the case study of Guatemala in general and the extractive and palm oil industries in particular.

 

October 2, 2015 in Commercial Law, Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Human Rights, International Business, International Law, Litigation, Marcia Narine Weldon | Permalink | Comments (0)

Wednesday, August 12, 2015

What Do International Business Lawyers Need to Know About US Corporate Law?

This weekend I will be in Panama filling in at the last minute for the corporate law session for an executive LLM progam. My students are practicing lawyers from Nicaragua, El Salvador, Costa Rica and Paraguay and have a variety of legal backgrounds. My challenge is to fit key corporate topics (other than corporate governance, compliance, M & A, finance, and accounting) into twelve hours over two days for people with different knowledge levels and experiences. The other faculty members hail from law schools here and abroad as well as BigLaw partners from the United States and other countries.

Prior to joining academia I spent several weeks a year training/teaching my internal clients about legal and compliance matters for my corporation. This required an understanding of US and host country concepts. I have also taught in executive MBA programs and I really enjoyed the rich discussion that comes from students with real-world practical experience. I know that I will have that experience again this weekend even though I will probably come back too brain dead to be coherent for my civil procedure and business associations classes on Tuesday.

I have put together a draft list of topics with the help of my co-bloggers and based in part on conversations with some of our LLM and international students who have practiced law elsewhere but who now seek a US degree: 

Agency- What are the different kinds of authority and how does that affect liability? 

Business forms:             

Key issues for entity selection

- ease of formation

-  ownership and control

- tax issues

-  asset protection/liability to third parties for obligations of the business /piercing the veil of limited liability

-  attractiveness to investors

-  continuity and transferability

Main types of business forms in the United States

-Sole Proprietorship

-Partnership/General and Limited

- Corporation

                     - C Corporation

                     - S Corporation

- Limited Liability Company

 Fiduciary Duties/The Business Judgment Rule

 Basic Securities Regulation/Key issues for Initial Public Offering/Basic Disclosures (students will examine the filings for an annual report and an IPO)

Insider Trading

The Legal System in the United States

                    -how do companies defend themselves in lawsuits brought in the United States?

                     -key Clauses to Consider when drafting dispute resolution clauses in cross border contracts

Corporate Social Responsibility- Business and Human Rights 

Enterprise Risk Management/What are executives of multinationals worried about? 

Yes, this is an ambitious (crazy) list but the goal of the program is to help these experienced lawyers become better business advisors. Throughout the sessions we will have interactive exercises to apply what they have learned (and to keep them awake). So what am I missing? I would love your thoughts on what you think international lawyers need to know about corporate law in the US. Feel free to comment below or to email me at mnarine@stu.edu. Adios!

August 12, 2015 in Business Associations, Comparative Law, Compliance, Corporate Governance, Corporations, CSR, Human Rights, International Business, International Law, Lawyering, Litigation, LLCs, Marcia Narine Weldon, Securities Regulation, Teaching | Permalink | Comments (0)

Monday, July 27, 2015

Monestier on Foreign Corporation Registration Statutes and Personal Jurisdiction

As the summer progresses, I have been slowly catching up on all the giant electronic reading pile I slowly built up during the school year. I recently read a very interesting article on personal jurisdiction, of all things. It’s Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of Consent, 36 Cardozo L. Rev. 1343 (2015), available on SSRN here. It's definitely worth reading, whether you're a corporate litigator or just interested in corporate law.

Here’s the abstract, which explains the article much better than I could:

In early 2014, the Supreme Court issued a game-changing decision that will likely put corporate registration as a basis for personal jurisdiction center stage in the years to come. In Daimler AG v. Bauman, the Court dramatically reined in general jurisdiction for corporations. The Court in Daimler held that a corporation is subject to general jurisdiction only in situations where it has continuous and systematic general business contacts with the forum such that it is “at home” there. Except in rare circumstances, a corporation is “at home” only in its state of incorporation and the state of its principal place of business. Plaintiffs who are foreclosed by Daimler from arguing continuous and systematic contacts with the forum as a basis for jurisdiction will now look to registration statutes to provide the relevant hook to ground personal jurisdiction over corporations.
 
Each of the fifty states has a registration statute that requires a corporation doing business in the state to register with the state and appoint an agent for service of process. A considerable number of states interpret their registration statutes as conferring general, or all-purpose, jurisdiction over any corporation that has registered to do business under the state statute. Those states that regard registration as permitting the exercise of general jurisdiction usually justify the assertion of jurisdiction on the basis of consent. That is, by knowingly and voluntarily registering to do business in a state, a corporation has consented to the exercise of all-purpose jurisdiction over it.
 
Registration to do business as a basis for general jurisdiction, however, rests on dubious constitutional footing. Commentators have approached the analysis from a variety of perspectives over the years. The analysis tends to focus on how courts have misread historical precedent and failed to account for the modernization of jurisdictional theory post-International Shoe Co. v. Washington. Largely unexplored, however, is the premise underlying registration-based general jurisdiction: that registration equals consent. In this Article, I argue that general jurisdiction based on registration to do business violates the Due Process Clause because such registration does not actually amount to “consent” as that term is understood in personal jurisdiction jurisprudence. I comprehensively explore why it is that registration cannot fairly be regarded as express (or even implied) consent to personal jurisdiction. First, I look at other forms of consent in the jurisdictional context — forum selection clauses and submission — and analyze the salient differences between these and registration. Second, I examine the nature of the consent that is said to form the basis for general jurisdiction and argue that it is essentially coercive or extorted. Coerced consent, an oxymoron, cannot legitimately form the basis for the assertion of general jurisdiction over a corporation. From there, I situate registration statutes in a larger conversation about general jurisdiction. I maintain that registration-based jurisdiction does not fit well into the landscape of general jurisdiction: it could eliminate the need for minimum contacts altogether; it results in universal and exorbitant jurisdiction; it is conceptually misaligned with doing business as a ground for jurisdiction; and it promotes forum shopping.

The subject is not one that I would be naturally attracted to. I don’t teach civil procedure and I don’t spend a lot of my professional time focusing on litigation issues. But I found Professor Monestier’s article very interesting and enjoyable. Even if you, like me, aren't a civil procedure junkie, it's worth checking out.

July 27, 2015 in Business Associations, C. Steven Bradford, Corporations, Litigation | Permalink | Comments (0)

Friday, July 10, 2015

Business Associations in Real Life

I’ve always been eager to do pro bono work. I went to law school with the intent of helping the indigent upon graduation, but then with a six-figure debt load, I went to BigLaw in New York and Miami, and then corporate America so that I could pay that debt off. But even as an associate and as in house counsel, I dutifully accepted pro bono cases. As a relatively new academic, I paid my way out of pro bono for the first couple of years as Florida allows and assuaged my guilt with the knowledge that my payments were going to fund the local legal aid office.

This year, as a condition of attending a family law CLE for free, I volunteered to take a case. I’ve devoted over 70 hours to it thus far, and we still aren’t finished even after today’s marathon 6.5 hour hearing dealing with a motion for contempt and enforcement, modification of alimony and child support, a QDRO (qualified domestic relations order), and a house in foreclosure. The case was complicated even according to my seasoned family law practitioner friends.

As a former litigator and current BA professor, I found that my skills helped to make up for my lack of family law expertise. The techniques for cross examining witnesses, preparing for hearing, and introducing exhibits came flooding back. From a BA perspective, knowing to ask questions about the structure of the petitioner’s LLC, inquiring about charging orders, and dissecting the financial statements and corporate tax returns put me in a much better position to protect my client’s interests. I always tell my students on the first day of BA that they never know where they will end up as practitioners, and that in today’s market many of them will be in small firms taking on a number of kind of clients. I try to make them understand how BA can help them in practice areas that don’t seem directly related to business. Now, thanks to this pro bono case I can back that up with proof from my own experience. 

July 10, 2015 in Business Associations, Family Business, Law School, Litigation, LLCs, Marcia Narine Weldon, Teaching | Permalink | Comments (1)

Wednesday, June 10, 2015

Random Thoughts on the Beneficiaries of Corporate Board Decision Making

Last week, I attended the National Business Law Scholars Conference at Seton Hall University School of Law in Newark, NJ.  It was a great conference, featuring (among others) BLPB co-blogger Josh Fershee (who presented a paper on the business judgment rule and moderated a panel on business entity design) and BLPB guest blogger Todd Haugh (who presented a paper on Sarbanes-Oxley and over criminalization).  I presented a paper on curation in crowdfunding intermediation and moderated a panel on insider trading.  It was a full two days of business law immersion.

The keynote lunch speaker the second day of the conference was Kent Greenfield.  He compellingly argued for the promotion of corporate personhood, following up on comments he has made elsewhere (including here and here) in recent years.  In his remarks, he causally mentioned B corporations and social enterprise more generally.  I want to pick up on that thread to make a limited point here that follows up somewhat on my post on shareholder primacy and wealth maximization from last week.

Continue reading

June 10, 2015 in Business Associations, Conferences, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Joan Heminway, Litigation, Social Enterprise | Permalink | Comments (6)

Wednesday, April 29, 2015

Tennessee . . . . The Business Law State? Yay For Us!

OK.  So, Tennessee is not Delaware.  But the Tennessee legislature and Supreme Court have been busy bees this spring on business law matters.   Here's the brief report.

In the last week of the legislative term, the Tennessee Senate and House adopted the For-Profit Benefit Corporation Act, about which I earlier blogged here, here, and here.  Although I remain skeptical of the legislation, it looks like the governor will sign the bill.  So, we will have benefit corporations in Tennessee.  We'll see where things go from there . . . .

The Tennessee legislature also passed a technical corrections bill for the Tennessee Business Corporation Act.  The bill was drafted by the Tennessee Bar Association's Business Entity Study Committee (on which I serve and to which I have referred in the past), a joint project of the Tennessee Bar Association's Business Law Section and Tax Law Section.  The governor has already signed this bill into law.

Separately, in a bit of a stealth move (!), the Tennessee Supreme Court recently announced the establishment of a business court, an institution many other jurisdictions already have.  The court is being introduced as a pilot project in Davidson County (where Nashville resides)--but only, as I understand it, to iron the kinks out before introducing the court on a permanent basis.  Interestingly, the Tennessee Bar Association Business Law Section Executive Council was not informed about the new court project until its public announcement in the middle of March.  Although we found that a bit odd, the "radio silence" is apparently attributable to the excitement of the Tennessee Supreme Court to get the project started effective as of May 1 and the deemed lack of need for a study on the subject before proceeding.  Regardless, I think it's safe to say that the bar welcomes the introduction of a court that specializes in business law cases as a matter of principle.  Again, we'll see where it goes from here.

A few reflections on all this follow.

Continue reading

April 29, 2015 in Business Associations, Corporate Governance, Corporations, Current Affairs, Joan Heminway, Litigation, Social Enterprise | Permalink | Comments (4)