Monday, January 2, 2023

A Business Law Prof "Goes Bowling" (Again): Leadership Lessons

OrangeBowl2022(Milton+)

I have been to college bowl games before to watch the Tennessee Volunteers football team play.  There was the loss to Clemson in the Peach Bowl (Atlanta) in 2003 and there were losses to North Carolina and Purdue in the Music City Bowl (Nashville) in 2010 and 2021.  I cannot remember if I was there for the 2016 win over Nebraska in the Music City Bowl (Nashville).  And I may have missed another bowl in there somewhere.  This year, the stakes seemed bigger.  The enemy again would be Clemson.  Could this bowl game be a revenge match for the 2003 Peach Bowl loss?

+++++

And so, here we were (me, my husband, and my 31-year-old daughter), at 4:30 am Friday morning, December 30, 2022.  We were awake and showered and packing the car for our first trip to the Orange Bowl.  Tennessee football had played well in a truly storied 2022 season.  And I was there for it all (at least for the home games).  Due to my service to the campus, I had the opportunity to get great tickets.  My hubby and daughter were "in."  Now, it was "go time."

Having arranged the trip late in the game and needing to integrate it with pre-existing plans for the three of us to spend the new year in San Diego (where I have family), the flight options for the trip were complex, limited, and somewhat expensive.  But my secretarial assistant is a wiz at finding odd and inexpensive routing (shout out to Sean!). To save money, we would leave from Nashville, not Knoxville. 

The trip, counterintuitively, involved flying from Nashville to Dulles and then to Fort Lauderdale.  But we were prepared!  We know the road to Nashville well (my husband's business has a clinic there, our son lives there, and I do a fair amount of work for the Tennessee Bar Association, which is based there).  We understood that the trip to Nashville sometimes involves delays (especially in areas where the interstate is a mere two-lane highway).  So, I built an extra hour-plus into our driving schedule.  We made good progress for the first hour or so of the trip.  And then the wheels fell off the wagon (so to speak) . . . .

Less than halfway to the airport in Nashville (which is about a 2.5-hour drive from Knoxville), we were stopped dead in our tracks on the interstate.  There was an accident ahead (and apparently not too far ahead).  We were grateful that it did not involve our car or us.  For a bit, we remained calm.  We had plenty of extra time.  How bad could it be?

It was bad.  Based on news gleaned from our cell phones, two cars were overturned.  People parked on the highway with us got out of their cars to walk their dogs, etc.  If folks could tolerate the cold, they turned their engines off.  We all amused ourselves with our cell phones.  I finished calculating the grades in one of my classes.  (Grades were due later that morning, and I had planned to send this last set from the airport before we left.)  An hour passed.

Then, the panic set in, a bit.  At about 75 minutes in, with no sign of a change in sight, my husband said: "Should we look into changing our flight?"  Then, it ht me: there would be few seats left on any plane, given bowl games, new year's eve, and (in general) the holiday travel debacle that continued to plague travelers days after the Christmas holiday was ostensibly "in the books."

OrangeBowl2022(I40Traffic)

I engaged with Tom through United Airline's reservations line.  Tom was our savior.  After more than an hour on the phone (seriously--the sun began to rise as we continued to sit in the traffic jam--see the photo above) during which Tom looked for every available flight/series of flights from every fairly local airport into every imaginable airport within driving distance of Miami, Tom found us three seats on a Southwest Airlines flight out of Nashville into Fort Myers.  It would cost us megabucks extra, but it would get in early enough for us to drive the two-plus hours to Hollywood/Miami and still make the game, if all went well.  We took the deal.

Blessedly, all did go well.  After two-plus hours of zero movement on the highway, the cars in front of us began to switch into gear and roll down the interstate once more.  Blessing of all blessings!  After arriving at the airport in Nashville, we were able to reserve a one-day rental car from Fort Myers to Fort Lauderdale at a reasonable price.  And after a relatively uneventful flight (despite the issues Southwest Airlines had experienced earlier in the week), we drove to Hollywood, checked into our hotel, and Uberred to the game.

We missed the alumni tailgate (a favorite pre-game activity of mine), but we arrived in time to explore the Hard Rock Stadium pre-game scene for a bit.  We were all smiles, as you can see from this photo.

OrangeBowl2022(ThreeAmigos)

Then, the adrenaline started flowing.  And it flowed, and flowed,  . . . .  And the Tennessee Vols prevailed over the Clemson Tigers 31-14.

What does any of this have to do with being a business law professor (other than that working for an employer that fields a winning football team provides more motive and opportunity to attend college bowl games)? 

As I have been processing Friday's Orange Bowl trip in my mind and, simultaneously, preparing for a panel discussion I am participating in at the Association of American Law Schools 2023 Annual Meeting later this week (Thursday, 8:00 am - 9:40 am), I realized that there are many leadership lessons in that experience that we can and should be teaching our law students.  Those include assessing the contextual importance of certain leadership attributes (e.g., tenacity, patience, flexibility, resilience) to leadership processes (e.g., effective questioning, resource allocation).  Lawyers are professional and personal leaders, and as I offered in a recently published edited transcript, "[i]n transactional business law, there are so many opportunities to lead, from team work situations involving the drafting and negotiation of merger agreements to diversifying the board of directors . . . ."  I then noted that "any scenario involving business transactional law or practice . . . likely involves at least one circumstance in which change leadership can be taught." (Check out my article on Change Leadership and the Law School Curriculum here.)

In Thursday's program, I will be talking about lawyer leadership and leadership development in the transactional business law space--at UT and more generally. As regular readers know, I have been directing our Institute for Professional Leadership at UT Law since the fall semester of 2020. The curriculum I manage addresses lawyer leadership.  But lawyer leadership is teachable in so many settings and without the need for specialized courses or an articulated curriculum..

The AALS panel is ambitiously (but not unrealistically) entitled "How Transactional Lawyers Can Impact the World."  For those of you who will be at the conference on Thursday, we will be in Marriott Grand Ballroom 11 on the Lobby Level of the North Tower.  The discussion is being moderated by Eric Chaffee, the current chair of the Section on Transactional Law and Skills.  The program description for the session reads as follows:

The theme of this year's annual meeting is "How Law Schools Can Make a Difference." References to social change and the law often beckon forth thoughts of crusading litigators winning important cases in court. This session explores what role transactional attorneys can play in impacting the world and how law students can be prepared to become those type of lawyers.

My co-panelists are an impressive lot, all dear friends in the law academy, with a varied set of perspectives and amazingly strong track records in legal education:

Alina Ball (University of California, Hastings College of the Law)
J. Robert Brown, Jr. (University of Denver Sturm College of Law)
Nicole Iannarone (Drexel University Thomas R. Kline School of Law)
Benjamin Means (University of South Carolina School of Law)

It is such an honor to be included in this group!  I hope to see a number of you who are readers from the law teaching world at the session.  The Q&A part of the program will, I am sure, be illuminating and a strong feature of the session.

Oh, and Go Vols!

January 2, 2023 in Conferences, Joan Heminway | Permalink | Comments (0)

Saturday, December 31, 2022

Year in Review: Buffett eschews ESG and beats the market by 23%?

Are the following two items related?

  1. Yesterday, CNN reported (here) that "the S&P 500 is down about 20% in 2022 – but .... Buffet’s [sic] Berkshire Hathaway (BRKA) is doing fine, though, up over 3% this year."
  2. Back in July, CIO reported (here) that "Buffett, Who Terms ESG Reporting ‘Asinine,’ Adds to Oil Holdings."

December 31, 2022 in Stefan J. Padfield | Permalink | Comments (0)

Friday, December 30, 2022

Ghosts of Christmas Past: WeWork Litigation

Everyone remember the WeWork debacle?  One interesting aspect is that although Adam Neumann is often mentioned in the same breath as Elizabeth Holmes and – these days – Samuel Bankman-Fried, Neumann was never charged with fraud, despite ballyhooed announcements of investigations.  If anything, that’s one of the more amazing things about the story: Neumann was able to incinerate billions of dollars while apparently explaining exactly what he planned to do and how he would do it.

Well, not exactly.  As I blogged in March 2021, one set of WeWork investors brought fraud claims against Neumann and other WeWork officers, namely former shareholders of a company called Prolific Interactive, which WeWork acquired for a combination of cash and WeWork stock.  The former Prolific shareholders claim that they were misled about the value of WeWork stock and sold their company too cheaply.  And, when they filed their complaint, I blogged that I didn’t understand why they had chosen to bring claims solely under Section 10(b) of the federal Exchange Act.  Section 10(b) is a very plaintiff-unfriendly statute.  Among other things, 10(b) claims are subject to the heightened pleading requirements of the PSLRA, and the scope of prohibited behavior is actually quite narrow (aiding and abetting claims, for example, are unavailable, and the definition of a primary violation can be something of a moving target).  Section 10(b) is only preferred by plaintiffs because it allows fraud-on-the-market liability, which most states’ common law does not.  The former Prolific shareholders, however, were not bringing a fraud-on-the-market case, so I didn’t understand why they were advancing claims under 10(b).

Well, on December 23, 2022, the District of Delaware finally dismissed the complaint (with leave to replead), see Emamian v. Neumann, No. 1:21-cv-00414, and from that opinion (as well as by reading some of the briefing), I got my answer.  (Sadly, the opinion is not available on Westlaw or Lexis as of this posting; you have to pull it from the docket).

When the plaintiffs signed the deal to receive WeWork stock in exchange for Prolific stock, the agreement contained a clause that disclaimed reliance on any representations outside of the agreement itself.  That disclaimer of reliance is enforceable under common law (or at least, under Delaware’s common law, see Abry Partners V, L.P. v. F & W Acquisition, 891 A.2d 1032 (Del. Ch. 2006), which likely applies here).  But some federal courts have held that anti-reliance clauses are not enforceable under Section 10(b), as they are too similar to a prohibited waiver of Exchange Act protection.  See AES Corp. v. Dow Chemical Co., 325 F.3d 174 (3d Cir. 2003). But see Cornielsen v. Infinium Capital Management, LLC, 916 F.3d 589 (7th Cir. 2019).

Sidebar: As I’ve previously blogged (here and here and here), the Ninth Circuit is right now considering whether a forum selection bylaw that shunts Exchange Act claims into a forum that has no jurisdiction to hear them is also the equivalent of a prohibited Exchange Act waiver.

In the Emamian case, though the contract disclaimed reliance on external representations, and the plaintiffs based their claims entirely on those.  Since the reliance waiver would have foreclosed claims under common law, they instead brought them under 10(b).

But!

Although some federal courts have been reluctant to give automatic effect to nonreliance clauses in 10(b) cases, they may hold that 10(b) requires plaintiffs to show that their reliance was justifiable, and a nonreliance clause may be evidence – though not dispositive – that any reliance on the disclaimed statements was not justifiable.  See O’Connor v. Cory, 2018 WL 5117197 (N.D. Tex. Oct. 19, 2018) (exploring the caselaw).  Beyond the issue of nonreliance clauses, the caselaw on what counts as “justifiable” reliance is somewhat mixed, especially since doctrines like “puffery” already serve the same function by eliminating any facially unreliable statements.  As a result, some courts have held that, since 10(b) is a fraud statute, plaintiffs have no affirmative duty to investigate defendants’ representations, Teamsters Local 282 Pension Fund v. Angelos, 762 F.2d 522 (7th Cir. 1985). 

The Third Circuit, however, requires some degree of diligence by the plaintiff, and so the Emamian court dismissed plaintiffs’ claims for failure to plead that they conducted a reasonable investigation – especially in light of the nonreliance clause and the length of the negotiations – but gave plaintiffs leave to replead on that issue.

That said, I’ll note something else: Although the court gave lip service to PSLRA pleading standards, it quite demonstrably did not require the same level of detail you’d expect in a fraud-on-the-market case by public company shareholders.  Though the court rejected plaintiffs’ claim that WeWork’s $110-per-share valuation was itself fraudulent for (for failure to plead scienter), the court did hold that plaintiffs had properly alleged that Neumann made false statements, with scienter, about WeWork’s “operations and business prospects.”  Yet the most that plaintiffs alleged along these lines was:

During these meetings [held from December 2018 to March 2019], Neumann discussed how valuable WeWork will be after its IPO as well as WeWork’s purported profitability, cash flow, and supposedly strong balance sheet at the time….

During the meetings and discussions leading up to WeWork’s acquisition of Prolific, Neumann and the other Defendants failed to disclose WeWork’s cash flow problems, massive operating losses, the unsustainable nature of the Company’s business model, Neumann’s self-dealing and erratic behavior, or that Neumann sold or was selling large blocks of his WeWork shares privately.

And, though it’s unclear whether the court considered these to be part of the fraud, Plaintiffs also made general allegations about WeWork’s public statements, such as:

Despite its growth, and the message it was presenting to the investing community that it was a tech start-up that was revolutionizing the workplace by bettering humanity and promoting community “wellness” and “kindness,” as it was later revealed, WeWork was nothing more than a subleasing company that captured the spread between long-term rental costs and short-term subleasing revenues for commercial office space.  WeWork claimed to be selling a membership “experience” that was “powered by technology designed to enable [WeWork’s] members to manage their own space, make connections among each other and access products and services.” But the reality is that WeWork simply offered a trendy desk and chair for monthly rent.

These allegations would never support a Section 10(b) class action against a public company – indeed, reading the complaint, it seems that the plaintiffs’ main claim is that they were defrauded by the $47 billion company valuation (which allegations, again, the court rejected on scienter – not falsity - grounds). Which is probably why we haven’t seen the kinds of government actions surrounding WeWork as we've seen for other high-profile startup collapses; statements of valuation – with nothing more – are extremely hard to prove false, let alone intentionally so.

Which means, we can say that 10(b) cases may formally have tougher pleading standards than common law cases, but judges may be loathe to impose them outside the class action context.

December 30, 2022 in Ann Lipton | Permalink | Comments (0)

Wednesday, December 28, 2022

Recordings of Debt Market Complexity: Shadowed Practices and Financial Injustice

Earlier this year, co-blogger Joan Heminway posted about the University of Pennsylvania Law Review's October 2022 Symposium, Debt Market Complexity: Shadowed Practices and Financial Injustice.  It was a fantastic program! For interested BLPB readers who were unable to attend, I wanted to share that recordings of the program were available online.   

December 28, 2022 in Colleen Baker | Permalink | Comments (0)

Tuesday, December 27, 2022

Holiday Happiness and the Business Law Professor

BLPB(XmasCookies2)

As a law professor, I find December a very confusing month.  On the one hand, exams are given and papers are in, and grading them and determining course grades loom large.   These activities consume inordinate amounts of time and are stressful, adding to the stress of holiday preparations (a real thing some of us do not acknowledge).  And then there always is the need to work in medical appointments that did not make it into one's schedule during the fall semester.  The negative energy can be overwhelming.

Yet, on the other hand, class preparation is done.  Scheduling things gets a bit easier since class meetings are no longer happening.  The many hours of grading even have some bright moments--moments in which you are confident someone really "gets it" (whatever "it" is)  There is some joy in the gift-buying and wrapping, menu-planning and cooking, and certainly in gift-giving.  And there is gratitude that those medical appointments are finally happening, and that any necessary follow-ups can be organized and implemented.

The little happy surprises are, however, the best--like the wonderful homemade gingerbread pictured above, a gift from a young woman I met almost four years ago because of a talk I gave to honors undergraduates on crowdfunding.  She had this cool idea for a nonprofit, and I introduced her to one of our law clinic faculty members.  (He got cookies, too!)

I try to focus on the little joys.  They make a difference in my sense of fulfillment and productivity.  I do not fully understand why.  But I continue to pursue answers.

Along those lines, I recently had the privilege of participating in a campus leadership event that offered me some food for thought.  I reflect on it in this blog post for Leading as Lawyers, the blog hosted by the Institute for Professional Leadership at UT Law (of which I am the Interim Director).  The post is about lawyer leadership.  Each of us as law professors is a leader.  We are leaders in the classroom in our law schools, in the communities in which we live and work, and in our family and personal lives more generally.  According to the research cited by the speaker at that event, choosing to be happy by focusing on enjoyment, satisfaction, and purpose, even in stressful times, is important.  It can change the course of one's leadership and life (and the lives of others) in positive ways.

The cookies from my nonprofit entrepreneur friend (and those pictured below--with some of hers--that were made by one of my fellow Tuesday-night yogis in a special semi-private class I take at a local yoga studio) are symbolic.  I enjoy cookies.  They are meaningful representations that put a smile on my face.  The represent the fulfillment of some of my current limited "wants"--sustained and deep relationships among them.  And they are evidence that I understand and am pursuing my recognized purpose, which includes using my "corporate law powers" to help others. Yay for all that (and for cookies generally)!

I wish all much happiness and good fortune in 2023.  Pursue enjoyment, satisfaction, and purpose.  Take pleasure in the many fruits of your labors, including your relationships with students.  Happy New Year!

[Editorial note: I have been trying to publish this on and off for the past day or so. Ultimately, I had to create this post on my phone, since my computer and TypePad do not want to play ball with each other right now. I hope this will resolve itself soon, since the photo editing function is not as nuanced on a handheld (or maybe I am just inept. Lol. Please forgive!]

BLPB(Xmascookies)

December 27, 2022 in Joan Heminway, Nonprofits, Teaching | Permalink | Comments (0)

Saturday, December 24, 2022

Video of the Seventh Annual Berkeley Fall Forum on Corporate Governance

In early November, Berkeley held a 2-day forum on corporate governance, featuring a variety of A-list speakers including Chancellor McCormick and Vice Chancellor Glasscock.  I also participated on a panel with Adam Badawi to talk about everyone's favorite subject, Elon Musk's takeover of Twitter.  The videos from the event were just posted online, so for those of  you who couldn't watch it live - here's the link (also available here)!

Happy holidays, everyone. Stay warm!

December 24, 2022 in Ann Lipton | Permalink | Comments (0)

Friday, December 23, 2022

Give Yourself the Gift of Understanding Contract Drafting and Negotiation In Miami or Virtually February 2023

It's the holidays and it's time to treat yourself and members of your team to practical training and fantastic networking in sunny Miami in February. We don't have bomb cyclones down here. The Transactional Skills Program at the University of Miami School of Law couldn't be more excited to host the How to Contract Conference from February 15-17, 2023. 

Thumbnail_ContractsCon Flyer - 1 page (12-23-2022)

  • ContractsCon is a training and networking EXTRAVAGANZA focused on the practical contract drafting and negotiating skills that in-house counsel and contracts professionals need to know. 
  • This event is a zero-fluff, to-the-point training on the nitty-gritty details. ContractsCon includes:
    • speakers who get the in-house experience and can explain why we draft the way we do
    • training centered around provision-level playbooks for you and your company to use when you return to work
    • workshops that provide a deeper dive into more nuanced topics and include interactive group activities
    • ContractsCon Playbook, featuring the advice and drafting approaches discussed at ContractsCon
    • access to How to Contract’s SaaS Contracts Training Library, with 20+ hours of training videos, the Cloud Services Agreement Playbook, and lots more (through March 31, 2023)
    • CLE pending in 26 states for up to 7 hours for virtual ticket holders and up to 13 hours for in-person attendees
  • ContractsCon is an annual training and networking event for in-house counsel and  contract professionals presented by How to Contract and Law Insider and hosted by University of Miami School of Law. This 2-day event will feature over 20 live training sessions with some of the most well-known contract experts.
  • Our promise is to share with you the core skills and expertise you need to work in-house on commercial contracts. All you have to do is show up ready to learn.
  • ContractsCon is designed for in-house lawyers and professionals who want to learn:
    • the insights and techniques needed to handle the commercial contracts filling their inbox every day,
    • how experienced lawyers manage risk, work efficiently, and make the hard decisions in challenging circumstances,
    • WHAT to say, WHY to say it that way, and HOW to reach the best-negotiated deal you can with your contract counterparties.
  • Give us two days of your time and you'll walk away with enhanced skills that enable you to better protect your company and clients. You'll gain more confidence.  You'll finally leave those "I don't know" and "I'm not sure" frustrations behind you. You'll also be able to network with other lawyers and professionals who share your desire to improve your skills and overcome any traces of imposter syndrome. 

Click here to get your ticket. And I'll see you in Miami, mojito in hand (after I do my session, of course).

December 23, 2022 in Conferences, Contracts, Corporations, Current Affairs, Law Firms, Law School, Lawyering, Marcia Narine Weldon, Negotiation | Permalink | Comments (0)

Tuesday, December 20, 2022

Call for Submissions: Akron Law Review Sports and Entertainment Law Symposium

The Akron Law Review seeks articles and essays of any length, speakers, and panel participants for a symposium on issues related to sports and entertainment law. The Symposium, “Game Changers: Rewriting the Playbook” A Sports and Entertainment Law Symposium will take place at the University of Akron School of Law, Akron, OH, on Friday, April 14, 2023. 

The editors seek articles, essays, and speakers that address one or more of the following topics, or other related topics:

  1. Contract Negotiations
  2. Diversity in Sports Leadership
  3. The Interplay of Ethics and Sports Agency

The editors seek articles, essays, and speakers for panel discussions on the following topics:

  1. Name, Image, and Likeness (NIL) – With this panel, we seek discussion of NIL policy and how athletes do, can, and/or should navigate new and evolving guidelines.
  2. Equality in Pay – With this panel, we seek discussion of the differences in pay between women and men in team and individual sports, such as soccer and golf.

The Akron Law Review has been highly ranked in the Washington and Lee Law Review Rankings for several years. In five recent years (2015-2019), the Akron Law Review ranked in the top 100 for student-edited, general journals in the Washington and Lee Law Library law journal rankings for “combined score” and in the top 107 for student-edited, general journals in the category of “impact factor.”

The Call for Papers will remain open until Saturday, December 31, 2022. Article proposals should be around 300 words. Submit proposals to the Editor-in-Chief, Jennifer Cranmer, and Managing Editor of the Symposium Edition, Demetria Kimble, at ualawrev@gmail.com.

Selected participants and writers will be notified by January 7, 2023. Finished articles will be due by February 3, 2023. Our editors will work with you to prepare your work for the symposium and/or publication. Articles will be published in the 2023 Symposium edition of the Akron Law Review.

December 20, 2022 in Stefan J. Padfield | Permalink | Comments (0)

Saturday, December 17, 2022

The Meaning of FTX, Part Deux

A couple of weeks ago, I blogged about how the most striking aspect of the FTX saga was the lack of due diligence by FTX’s equity backers – and how proud they were of that fact, before everything came crashing down.

This week, we got a little more color on that, in the form of the SEC’s complaint against Samuel Bankman-Fried (like everyone else, for ease of reference, I’ll call him “SBF”).  The least surprising thing about the case is that the SEC focused not on the fraud perpetuated on crypto asset traders, but on the fraud perpetuated by SBF on investors in FTX.  That’s because the SEC only has jurisdiction over fraud committed in connection with securities trading, and it’s not always clear whether a particular crypto asset is, or is not, a security.  To sue SBF over fraud perpetuated on FTX customers, the SEC would have to perform the Howey test on an asset-by-asset basis for everything the customers traded – not exactly a feasible undertaking.  So, the SEC took the low-hanging fruit and sued to vindicate the rights of the stockholders in FTX.

Just one teensy problem.  Here are examples of the fraud, taken from the SEC’s complaint:

For the entire span of the Relevant Period, while raising money from equity investors, Bankman-Fried, and those speaking at his direction and on his behalf, claimed in widely distributed public forums and directly to investors that: FTX was a safe crypto asset trading platform; FTX had a comparative advantage due to its automated risk mitigation procedures….

FTX’s Terms of Service, which were publicly available on FTX’s website and accessible to investors, assured FTX customers that their assets were secure…

Similarly, FTX posted on its website a document entitled, “FTX’s Key Principles for Ensuring Investor Protections on Digital-Asset Platforms,” in which FTX represented that it “segregates customer assets from its own assets across our platforms.”…

Throughout the Relevant Period, Bankman-Fried made public statements assuring that customer assets were safe at FTX. For example, he stated in a tweet on or about June 27,  2022: “Backstopping customer assets should always be primary. Everything else is secondary.”  He likewise tweeted on or about August 9, 2021: “As always, our users’ funds and safety comes first. We will always allow withdrawals (except in cases of suspected money laundering/theft/etc.).”

Bankman-Fried also told investors, and directed other FTX and Alameda employees to tell investors, that Alameda received no preferential treatment from FTX. For example, Bankman-Fried told the Wall Street Journal in or around July 2022: “There are no parties that have privileged access.” Likewise, in a Bloomberg article published in or about September 2022, Bankman-Fried claimed that “Alameda is a wholly separate entity” than FTX. In the same article, Ellison is quoted as stating about Alameda: “We’re at arm’s length and don’t get any different treatment from other market makers.” Bankman-Fried made similar statements directly to investors…..

FTX invested significant resources to develop and promote its brand as a trustworthy company. For example, in materials provided to one investor in or around June 2022, FTX cultivated and promoted its reputation:

                    FTX has an industry-leading brand, endorsed by some of the most trustworthy public figures, including Tom Brady, MLB, Gisele Bundchen, Steph Curry, and                     the Miami Heat, and backed by an industry-leading set of investors. FTX has the cleanest brand in crypto…

Bankman-Fried repeatedly touted FTX’s automated risk mitigation protocols—which he called FTX’s “risk engine”—to the public, and prospective investors, as a safe and reliable way for crypto asset trading platforms to manage risk. Bankman-Fried promoted the concept of “24/7” automated risk monitoring as an innovative benefit of cryptocurrency markets, including at a hearing on or about December 8, 2021, to the U.S. House of Representatives Committee on Financial Services….

In a submission to the Commodity Futures Trading Commission, FTX touted its automated system, claiming that it calculated a customer’s margin level every 30 seconds; and that if the collateral on deposit fell below the required margin level, FTX’s automated system would sell the customer’s portfolio assets until the collateral on deposit exceeded the required margin level….

Bankman-Fried thus misled FTX’s investors by representing that its risk engine would protect FTX customer funds and would limit FTX’s exposure to any single customer….

Get it?  The majority of what the SEC alleges are not statements to investors; they were statements to the general public, to FTX customers, to Congress.  There are a couple of stray allegations about direct communications with investors – among other things, SBF at one point handed investors a printout of what the FTX website said, and there were some audited financials (mentioned briefly in paragraph 51; the SEC’s reticence over them suggests it’s not comfortable resting its entire case on those) – but there’s really not much direct investor communication at all, at least not before the collapse and SBF began looking for bailouts. 

Compare, for example, to the SEC’s complaint against Elizabeth Holmes.  Investors got media releases, sure, but they also got binders about purported relationships with big pharma, they got lab tours, they got information on clinical trials.  But there’s nothing like that in the case against SBF.

Now, that may be because everyone’s operating on a condensed timeline.  Maybe these are the statements the SEC could get at quickly, and it intends to supplement its complaint later (in which case, this blog post will quickly become irrelevant).  But at least for now, the overwhelming suggestion is that the SEC based its case on false public statements because SBF didn’t actually make any false private ones – investors bought FTX stock without demanding so much as an offering memorandum.

From a legal perspective, that may not be a problem, exactly.  In the context of private plaintiffs and fraud on the market, it’s well established that a statement may be “in connection with” a securities transaction so long as market analysts relied on it, even if the communication was not specifically directed to investors.  See In re Carter- Wallace Sec. Litig., 150 F.3d 153 (2d Cir. 1998).  As a result, private class action plaintiffs frequently base claims on advertisements targeted to customers, mainstream news appearances, and so forth.  So, in this case, even if SBF were to argue that he wasn’t talking to investors, he was talking to other audiences, the obvious rejoinder is that the whole reason investors were willing to invest on a song was because of FTX’s public reputation, carefully cultivated by SBF.

That said, if you already had the impression that the VC/private investment space is based more on “vibes” than financial models, the SEC’s complaint only provides more evidence.

December 17, 2022 in Ann Lipton | Permalink | Comments (0)

Friday, December 16, 2022

Open Legal Studies Faculty Positions - Georgia State University College of Business

Dear BLPB Readers:

"GEORGIA STATE UNIVERSITY invites applications for full-time tenure-track and non-tenure-track faculty positions in Legal Studies in the Department of Risk Management and Insurance at the J. Mack Robinson College of Business, effective for Fall 2023. The salary level, benefits, and course-load for these positions are competitive. Candidates must have a J.D. (or a PhD) from an accredited institution. For additional information, please access the tenure-track position posting here (https://academicjobsonline.org/ajo/jobs/23860) and the non-tenure-track position posting here (https://academicjobsonline.org/ajo/jobs/23859)."

December 16, 2022 in Colleen Baker, Jobs | Permalink | Comments (0)

Wednesday, December 14, 2022

Call for Panel and Independent Paper Proposals - Money as a Democratic Medium 2.0

Dear BLPB Readers:

The below is from the Call for Panel and Independent Paper Proposals for the upcoming conference, Money as a Democratic Medium 2.0.

"We are delighted to announce Money as a Democratic Medium 2.0. The Conference will be held at two sites in order to maximize participation while minimizing carbon impacts: Cambridge, MA (Harvard Law School, June 15-17, 2023) and Hamburg, Germany (the Hamburg Institute for Social Research and THE NEW INSTITUTE,  June 15-16, 2023).  The Conference is open to all students of money, credit, and finance, the monetary system, and the modern economy, including members of the public. We will offer robust online access and we encourage distant participants to join us virtually."

The full call is here.  The deadline for submissions is February 1, 2023.

December 14, 2022 in Call for Papers, Colleen Baker | Permalink | Comments (0)

Tuesday, December 13, 2022

Victoria's Secret: The Song and the Business

Posting something light tonight . . . .

I have found myself fascinated listening to Jax's recent hit "Victoria's Secret," a clever pop ballad about female body image concerns and intimates retailer Victoria's Secret.  The refrain is catchy and, itself, tells a story--a business story.

I know Victoria's secret
And, girl, you wouldn't believe
She's an old man who lives in Ohio
Making money off of girls like me"
Cashin' in on body issues
Sellin' skin and bones with big boobs
I know Victoria's secret
She was made up by a dude (dude)
Victoria was made up by a dude (dude)
Victoria was made up by a dude

Because I knew some of the history of the Victoria's Secret business, I understood that the allusion to the "old man who lives in Ohio"--the "dude"--is a reference to Leslie Wexner, the founder of L Brands (earlier famous for owning major brands like The Limited, Express, and Abercrombie & Fitch, as well as Victoria's Secret).  Victoria's Secret became an independent publicly traded firm, Victoria's Secret & Co., last year through a tax-free spin-off from L Brands (now known as Bath & Body Works, Inc.).  From the Victoria's Secret & Co. website:

On August 3, 2021, L Brands (NYSE: LB) completed the separation of the Victoria’s Secret business into an independent, public company through a tax-free spin-off to L Brands shareholders. The new company, named Victoria’s Secret & Co., includes Victoria’s Secret Lingerie, PINK and Victoria’s Secret Beauty. Victoria’s Secret & Co. is a NYSE listed company trading under the ticker symbol VSCO.

In conjunction with this announcement, L Brands changed its name to Bath & Body Works, Inc. and now trades under the ticker symbol BBWI.

According to (among other sources) a Newsweek piece from last summer, Wexner did not found Victoria's Secret.  He bought it in 1982 from the founder.  However, he did elevate the brand to cult status and financial success.  So, one might say that he did "make up" Victoria (as she is conceptualized in the song's lyrics). 

Having said that, it also seems fair to note that Ed Razek, long-time L Brands chief marketing officer, is credited (in that same Newsweek article) with overseeing the iconic Victoria's Secret fashion shows that ran from 1995 to 2018.  In the minds of many, these fashion shows created--or at least popularized--the image of the Victoria in Jax's lyrics ("skin and bones with big boobs").

Victoria's Secret & Co. has been working to change its image.  Its website includes value statements consistent with greater inclusion and features some photos of nontraditional intimates models--models that are not reflective of the Victoria described in the "Victoria's Secret" song lyrics.  Moreover, the Victoria's Secret & Co. CEO reportedly reached out to Jax to thank her for highlighting body image issues through her song.

With the craziness of current business stories, grading, and the holiday season, this post is designed to offer some amusement (if not educational value).  I have endeavored to ensure that BLPB readers now know Victoria's Secret--the company--a bit better.  I also hope you enjoy the Jax song and appreciate its encouragement of positive body image.

December 13, 2022 in Corporations, Current Affairs, Joan Heminway, Marketing, Music | Permalink | Comments (0)

Monday, December 12, 2022

Corporate Finance Maxims?!

My classroom teaching for the semester is over.  I am in "grading mode"--not my favorite way of being.  But final assessments must be completed!  (Wishing you well in completing yours.)

Before I left the classroom, however--specifically, in the last class meeting for my corporate finance students--I did have some fun.  I saved my last class session in the course to address what my students wanted me to cover.  I asked for the topics in advance.  They covered a range of corporate finance topics, from litigation issues (Theranos, FTX, and current hot legal claims) through common mistakes to avoid in a corporate finance practice to survival tips for first-year law firm associates.  Weaving all of that together in a 75-minute class period was a tall task.

My ultimate vehicle was to come up with a list of maxims--short-form guidance statements--that would allow me to address all of what my students had asked me to cover.  I came into class with just a few maxims to get us started and cover the basics.  But the conversation was very engaged and got rich relatively quickly.  As we riffed off each other's questions and comments, my little list grew to a robust thirteen maxims!  

Before I erased the white board and left the classroom, I took a picture of each of the two white board panels generated from our conversation.  Those pictures are included below.  Despite my handwriting, I am hoping you can see what we came up with real-time.  If not, set forth below is our jointly created list of principles (edited slightly), many of which apply equally outside a corporate finance practice.

  1. Act based on legal analysis (rules applied to facts), rather than speculation or assumptions.
  2. Pay attention to licensure and competence--your reputation is at issue.
  3. People--networking, human resources--are critical to practice.
  4. Fraud is real; be on the lookout for it, and do what you can to protect clients from it.
  5. The same is true for for breaches of fiduciary duty.
  6. Take an issue as far as you can before consulting.
  7. Learn when to decide and when to consult.
  8. Keep abreast of changes in law, business, etc. relevant to your practice.
  9. Don't check your common sense at the door (with a hat tip to GWK--George W. Kuney, one of my colleagues).
  10. Time is important--show up on time, meet deadlines, etc.
  11. Manage your time away from the office; don't forget personal care/wellness.  (Drugs--including caffeine--are not the answer.)
  12. Hand colleagues and clients your best work (within the allotted time).
  13. Take time to enjoy your colleagues, clients, and work--there is great joy in this practice.

Which of these maxims resonate most with you?  Which of them would you amend by adjustment or addition? What maxims do you share with your students?  Leave thoughts in the comments!

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December 12, 2022 in Corporate Finance, Lawyering, Teaching, Wellness | Permalink | Comments (4)

Friday, December 9, 2022

FIFA, ESG, and BS

I'm a huge football fan. I mean real football-- what people in the US call soccer. I went to Brazil for the World Cup in 2014 twice and have watched as many matches on TV as I could during the last tournament and this one. In some countries, over half of the residents watch the matches when their team plays even though most matches happen during work hours or the middle of the night in some countries. NBC estimates that 5 billion people across the world will watch this World Cup with an average of 227 million people a day. For perspective, roughly 208 million people, 2/3 of the population, watched Superbowl LVI in the US, which occurs on a Sunday.

Football is big business for FIFA and for many of its sponsors. Working with companies such as Adidas, Coca-Cola, Hyundai / KIA, Visa, McDonald's, and Budweiser has earned nonprofit FIFA a record 7.5 billion in revenue for this Cup. Fortunately for Budweiser, which paid 75 million to sponsor the World Cup, Qatar does not ban alcohol. But in a plot twist, the company had to deal with a last-minute stadium ban. FIFA was more effective in Brazil, which has banned beer in stadiums since 2003 to curb violence. The ban was temporarily lifted during the 2014 Cup. I imagine this made Budweiser very happy. I know the fans were. 

This big business is a big part of the reason that FIFA has been accused of rampant corruption in the award of the Cup to Russia and Qatar, two countries with terrible human rights records. The Justice Department investigated and awarded FIFA hundreds of millions as a victim of its past leadership's actions related to the 2018 and 2022 selections. Amnesty International has called these games the "World Cup of Shame" because of the use of forced labor, exorbitant recruitment fees, seizure of passports, racism, delayed payments of $220 per month, and deaths. Raising even more awareness, more than 40 million people have watched comedian John Oliver's 2014 , 2015, and 2022 takedowns of FIFA. 

The real victims of FIFA's corruption are the millions of migrant workers operating under Qatar's kafala system. I remember sitting at a meeting at the UN Forum on Business and Human Rights in Geneva when an NGO accused the Qatar government of using slaves to build World Cup Stadiums. I also remember both FIFA and the International Olympic Committee pledging to consider human rights when selecting sites in the future. Indeed, FIFA claims that human rights were a "key factor" when choosing the Americas to host the 2026 Cup. 

With all of the talk about ESG including human rights and anti-discrimination from FIFA, Coca Cola, Budweiser and others related to the World Cup, how do those pronouncements square with FIFA's ban on team captains wearing the One Love Rainbow Arm Band?  Qatar has banned same sex relations  so seven EU team captains had planned to wear the arm bands as a gesture to "send a message against discrimination of any kind as the eyes of the world fall on the global game."  This was on brand with FIFA 's own  strong and repeated statements against racism after several African players suffered from taunts and chants from fans in stadiums. FIFA reiterated its stance after the death of George Floyd. Just today, FIFA issued another statement against discrimination, noting that over 55% of players received some kind of discriminatory online abuse during the Euro 2020 Final and AFCON 2022 Final.

It's curious then that despite FIFA's and the EU team's pledges about anti-discrimination, just three hours before a match, the teams confirmed that they would not wear the arm bands after all.  Apparently, they learned that players could face yellow card sanctions if they wore them. Qatar also bans advocacy and protests about same sex relationships. Unlike the stadium beer ban, this wasn't new.

And the human rights abuse allegations against FIFA aren't new. I've blogged about FIFA and the issues I encountered when meeting human rights activists in Brazil several times including here. So I will end with the questions I asked years ago about FIFA and its sponsors and add the answers as I know them today. 

1)   Is FIFA, the nonprofit corporation, really acting as a quasi-government and if so, what are its responsibilities to protect and respect local communities under UN Guiding Principles on Business and Human Rights? Answer: FIFA has pledged to comport with the UN Guiding Principles on Business and Human Rights, but its arm band ban shows otherwise. 

2)   Does FIFA have more power than the host country and will it use that power when it requires voters to consider a bidding country’s human rights record in the future? Answer: See the answer to #3. Also, it will be interesting to see what FIFA demands of 2026 host Florida, a state which is divesting of funds with a focus on ESG and which has proposed anti-ESG legislation.  

3)   If Qatar remains the site of the 2022 Cup after the various bribery and human rights abuse investigations, will FIFA force that country to make concessions about alcohol and gender roles to appease corporate sponsors? Answer: Nope

4)   Will/should corporate sponsors feel comfortable supporting the Cup in Russia in 2018 and Qatar in 2022 given those countries’ records and the sponsors’ own CSR priorities? Answer: Yep, despite public statements to the contrary. It's just too lucrative

5)   Does FIFA’s antidiscrimination campaign extend beyond racism to human rights or are its own actions antithetical to these rights? Answer: Yes the campaign does but again, the arm band ban shows otherwise. 

6)   Are the sponsors commenting publicly on the protests and human right violations? Should they and what could they say that has an impact? Should they have asked for or conducted a social impact analysis or is their involvement as sponsors too attenuated for that? Answer: Amnesty International is seeking corporate support for compensation reform, but hasn't been very successful.

7)   Should socially responsible investors ask questions about whether companies could have done more for local communities by donating to relevant causes as part of their CSR programs? Answer: In my view, yes. The UN has guidance on this as well. 

8)   Are corporations acting as "bystanders", a term coined by Professor Jena Martin?  Answer: Yes. 

9)   Is the International Olympic Committee, a nonprofit, nongovernmental organization, taking notes? Answer: Yes. Despite or perhaps because of the outrage over selecting China for the Olympics, the IOC has recently approved a Strategic Framework on Human Rights.

10)  Do consumers, the targets of creative corporate commercials and  viral YouTube videos, care about any of this? Answer: It depends on the demographics, but I would say no. How do I know this? Because I teach and write about business and human rights and I have still scheduled my grading of exams and meetings around the World Cup. Advertisers can't miss out on having 25% of the world's eyeballs on their products.  And FIFA knows that the human rights noise will all go away for most fans as soon as the referee blows the whistle to start the match.

In any event, my business and human rights students will enjoy grappling with the ugly side of the beautiful game next semester as we work on proposals for the city of Miami to live up to its 2021 commitments to human rights whether FIFA does or not.

December 9, 2022 in Compliance, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Games, Human Rights, Law School, Marcia Narine Weldon, Sports | Permalink | Comments (0)

Thursday, December 8, 2022

In an alternate universe, the Twitter v. Musk dispute could have ended up like Anaplan

A former shareholder of Anaplan recently filed a lawsuit against several of its former officers and directors, alleging a variety of fiduciary breaches in connection with the company sale to Thoma Bravo (“TB”).

As you may recall from news reports at the time – or Matt Levine’s column – Anaplan signed a deal to sell itself to TB at $66 per share.  Then, the bottom fell out of the market, and suddenly that looked like a very generous price.  TB was stuck, though, until Anaplan screwed up by approving a bunch of new bonus payments to executives that violated the merger agreement’s ordinary course covenant.  That gave TB an excuse to threaten to walk away unless Anaplan agreed to a lower deal price, and the merger ultimately closed at $63.75 - a reduction of $400 million.

Pentwater Capital, a hedge fund with a substantial stake in Anaplan, is now suing, alleging that compensation committee directors, and the officers involved with the awards, breached their duties of loyalty and committed waste, and that the officers – including the company CEO, who was also Chair – acted with gross negligence. 

(Side note: to distinguish the CEO’s behavior in his capacity as officer, where he was not exculpated for negligence, from his behavior in his capacity as Chair, where he was, the complaint points out that he participated in Compensation Committee meetings, though he could not legally have been a member of that committee since NYSE requires that Compensation Committee members be independent).

And what leaps out to me from this suit is how Delaware law has taken some wrong turns.

First and most obviously, as I previously blogged, Delaware now permits officers, as well as directors, to be exculpated for negligence in connection with direct claims.  Though the Anaplan complaint tries to make out a claim for conscious wrongdoing, which would violate the duty of loyalty via bad faith action, that seems like a tall ask; there’s no argument that the excess compensation awards were self-dealing, only that they were obviously barred by the merger agreement, and that the defendants forged ahead heedlessly nonetheless.  Pentwater doesn’t even claim that the excess awards were actually material to TB or the merger agreement.  Instead, it admits that their significance was that they handed TB the excuse it needed to escape the deal, and claims that the defendants should have anticipated that TB would make use of any leverage it could.

So this, to me, is a scenario where negligence liability would help remedy a tangible harm inflicted on the shareholders.  But in future years, it’s likely that any officers who behave similarly will be entirely in the clear.  I’ll note that Pentwater makes much of the CEO’s golden parachute and other payments he received in connection with the merger – to the tune of over $250 million – but this is not like those cases where the CEO negotiates a bad deal to get his severance; here, the CEO already had a great deal on the table and no reason to blow it, especially since a lot of his payments were equity.  Still, the payments do suggest that there would be some justice in forcing him personally to make up a lot of what shareholders lost.

Second, this case highlights the fallacy of Corwin.  Because the biggest stumbling block for Pentwater is that shareholders approved the merger.  Of course they did!  The bottom fell out of the market; they weren’t going to get a better deal, even at the revised price.  That hardly means they wanted to cleanse the fiduciary breaches that cost them $400 million.  But Corwin requires that these two actions – approval of the substance of the deal, and ratification of the managers’ conduct – be bundled into a single vote.  Which is precisely the objection several commenters have raised with respect to Corwin, see, e.g., James D. Cox, Tomas J. Mondino, & Randall S. Thomas, Understanding the (Ir)relevance of Shareholder Votes on M&A Deals, 69 Duke L.J. 503 (2019).  In fact, as I previously blogged, VC Glasscock recently had the exact same intuition outside the Corwin context.  In Manti Holdings v. The Carlyle Group, 2022 WL 444272 (Del. Ch. Feb. 14, 2022), he held that shareholders did not waive their rights to bring fiduciary duty claims in connection with a merger merely because they signed a contract agreeing not to challenge the merger itself.  Because challenging a merger, and alleging fiduciary breaches in connection with a merger, are different things, as the Anaplan case highlights, but as Corwin conflates.

That said, Pentwater knows all this and has seeded its complaint with potential end-runs around Corwin.  Starting with, it argues that the vote was coerced: “stockholders had a metaphorical gun to their head,” Pentwater alleges.  And, that’s not wrong, but defendants presumably will argue, not without force, that the “coercion” was simply that the shareholders liked the deal on the table and didn’t expect a better one would be forthcoming.  The facts may be extreme, but they’re the same as every other merger that Corwin deems cleansed; what this situation really highlights is just how unsatisfying Corwin is for that reason.

Pentwater also argues that the proxy materials were misleading because they didn’t make clear exactly how egregious the defendants’ conduct was, and how aware they were that they were in breach.  Which may be true – I have no idea – but the whole point of the coercion argument is that shareholders were forced to vote in favor anyway, which kind of suggests that those details were immaterial. 

Finally, Pentwater argues waste.  Pentwater makes the not unreasonable point that when a company is on the verge of being sold for cash, new retention awards add zero value to current shareholders.  Waste, of course, can only be approved with a unanimous shareholder vote, see Harbor Fin. Partners v. Huizenga, 751 A.2d 879 (Del. Ch. 1999), and while the vote in favor of the deal was nearly 99%, it wasn’t actually unanimous.

I actually can see this one having legs, especially if Pentwater can make the case that the defendants knew they violated the agreement or acted without heed of it.  Not only is the waste argument persuasive, but waste is useful from Delaware’s perspective because it would allow justice to be done in this particular case without forcing a confrontation with the paradoxes created by Corwin.  But that doesn’t mean the problems have gone away.

December 8, 2022 in Ann Lipton | Permalink | Comments (0)

Wednesday, December 7, 2022

The Federalist: "Republicans Launch Antitrust Investigation Into Climate-Obsessed Corporate ‘Cartel’"

Back in October, I posted a blog asking "Should Antitrust Regulators Come for the ESG Cartel?" Yesterday, The Federalist reported (here) that Republicans are launching an investigation into the "Climate-Obsessed Corporate ‘Cartel.’" Some key points from the article:

  • In a June op-ed published in the Wall Street Journal and cited by lawmakers, Sean Fieler, the president of Equinox Partners, a Manhattan-based investment firm, outlined how “The ESG Movement Is a Ripe Target for Antitrust Action.”
  • Republican Arizona Attorney General Mark Brnovich launched a separate antitrust investigation into the Climate Action 100+ network in November last year.
  • House Republicans launched an investigation Tuesday probing whether major climate groups that spearhead the “environmental, social, and governance” (ESG) movement are violating antitrust laws.

The article notes that: 

In a letter sent to executives of the Steering Committee for Climate Action 100+, Republicans led by Ohio Rep. Jim Jordan are demanding a treasure trove of documents that illustrate the coalition’s network of influence.... “Woke corporations are collectively adopting and imposing progressive policy goals that American consumers do not want or do not need. An individual company’s use of corporate resources for progressive aims might violate fiduciary duties or other laws, harming its viability and alienating consumers,” Republicans warned. “But when companies agree to work together to punish disfavored views or industries, or to otherwise advance environmental, social, and governance (ESG) goals, this coordinated behavior may violate the antitrust laws and harm American consumers.”

December 7, 2022 in Stefan J. Padfield | Permalink | Comments (1)

Tuesday, December 6, 2022

ICYMI: "Lawsuit filed against City of Seattle for hostile workplace caused by pervasive 'racial equity training'"

A Pacific Legal Foundation press release from Nov. 16 (here) reports the following, which may be of interest to #corpgov types overseeing DEI initiatives.

Today, Joshua Diemert, a former City of Seattle employee, filed a federal lawsuit against the City and Mayor Bruce Harrell for subjecting him to a racially hostile work environment.... Diemert endured years of harassment and racial discrimination in the workplace. Some incidents officially sanctioned by the city were so severe that they created a racially hostile working environment. For example:

  • He was pressured to resign from a position rather than take FMLA leave because he was told that taking FMLA leave would be an exercise of his “white privilege” and would deny a “person of color” an opportunity for promotion.
  • On multiple occasions, upper-level managers verbally told him and other department employees that new positions should be filled with people of color, particularly senior roles.
  • He was forced to attend training that demanded he acknowledge his complicity in racism, not based on his personal actions or beliefs but because he is white.
  • When he spoke up against egregiously racist messaging at a required workshop, his coworkers labeled him a white supremacist. And belligerent colleagues continuously berated him about his race.

“Instead of supporting its employees and providing them with opportunities, the City of Seattle is encouraging racial discrimination and harassment through its Race and Social Justice Initiative,” said Laura D’Agostino, an attorney at Pacific Legal Foundation. “Seattle employees should be treated as individuals with dignity and evaluated by the content of their character, not the color of their skin.”... The case is Joshua Diemert v. City of Seattle, filed in the United States District Court for the Western District of Washington.

December 6, 2022 in Stefan J. Padfield | Permalink | Comments (0)

Saturday, December 3, 2022

The Meaning of FTX

When it comes to FTX, I’ll let the crypto people talk about the implications for that space generally, and I’m sure we all have our opinions on Samuel Bankman-Fried’s conduct – both before the collapse, and his endless apology tour afterwards – but what will live on for me is not any of that, but the 14,000 word hagiography that Sequoia had published on its website until very recently; they took it down after the bankruptcy declaration, though of course you can’t erase anything from the internet.

Sequoia has gotten a lot of flak for it not only for the fawning coverage, but because it revealed that Bankman-Fried actually was playing a video game during his pitch meeting.  More than that, after FTX raised $1 billion in its B round, it apparently held a “meme round” of financing, and raised $420.69 million from 69 investors.

Such revelations have inspired a lot of criticisms of the due diligence process today, not only by Sequoia but also by other FTX investors like Ontario Teachers’ Pension Plan.

But what really stood out to me not just was the evidence of due diligence failure, but the fact that Sequoia intentionally, by their own volition, put this article on its own website.  It wanted you to know that this was who they were funding, and this was the process they used.  They believed this would give them credibility, perhaps with founders, perhaps with their own investors – and they may very well have been right.

I’ve previously blogged (twice!), and written an essay about, about how the changes to the securities laws create these situations (though, of course, macroeconomic changes are responsible as well, as this Financial Times article explains).

In particular, my point is that the securities laws cultivate investors with particular preferences, and that leads to particular corporate outcomes.  As relevant here, in 1996, Congress gave the green light for private funds to raise unlimited amounts of capital, without becoming subject to registration under either the Securities Act or the Investment Company Act, so long as their own investors consist solely of persons with $5 million in assets.   At the same time, Congress and the SEC also made it easier for operating companies to raise capital while remaining private, so long as they mostly limit their investor base to these newly supercharged private funds.  The illiquid nature of the funding vehicles (necessitated by their private, non-tradeable status) encourages a short-termist orientation in search of a quick payout.  Due to the high-risk nature of these investments, private funds invest in multiple firms in the expectation that most will fail but a few will become outsized hits.  The result has been that one category of investor – wealthy, institutional, private, illiquid, risk-seeking, and with limited ability to express negative sentiment – has come to dominate the private markets.   And that’s how you end up with Sequoia bragging about funding being based on obscene numbers rather than DCF models. 

The securities laws are ultimately supposed to facilitate the efficient allocation of capital, but unfortunately, too much weight is being put on “let sophisticated investors make their own choices” and not enough on how these rules shape these sophisticated investors themselves and their preferences, which may not up end up aligning with society's preferences.

December 3, 2022 in Ann Lipton | Permalink | Comments (0)

Thursday, December 1, 2022

Press Release: "the Florida Treasury will begin divesting $2 billion worth of assets currently under management by BlackRock"

In a press release issued today (here), "Florida Chief Financial Officer (CFO) Jimmy Patronis announced that the Florida Treasury will begin divesting $2 billion worth of assets currently under management by BlackRock."  Stated Patronis:

Using our cash ... to fund BlackRock’s social-engineering project isn’t something Florida ever signed up for. It’s got nothing to do with maximizing returns and is the opposite of what an asset manager is paid to do. Florida’s Treasury Division is divesting from BlackRock because they have openly stated they’ve got other goals than producing returns. As Larry Fink stated to CEOs "[A]ccess to capital is not a right. It is a privilege." As Florida’s CFO I agree wholeheartedly, so we’ll be taking Larry up on his offer. There’s no lack of companies who will invest on our behalf, so the Florida Treasury will be taking its business elsewhere.

At some point, these millions/billions being divested from Blackrock are going to add up to real money.

December 1, 2022 in Stefan J. Padfield | Permalink | Comments (0)

Wednesday, November 30, 2022

Call for Papers - World Federation of Exchanges Clearing and Derivatives Conference 2023

Dear BLPB Readers:

"The World Federation of Exchanges is organising its 40th Annual Clearing and Derivatives Conference, WFEClear, hosted by the Johannesburg Stock Exchange (JSE) and its CCP, JSE Clear. 

We invite the submission of theoretical, empirical, and policy research papers on issues related to the conference topics. Accepted papers will be presented at the conference and posted as part of the Conference Proceedings on the Financial Economic Network (SSRN)."

Note that the submission deadline of December 13, 2022, is fast approaching!  The complete call for papers is here.

November 30, 2022 in Call for Papers, Colleen Baker | Permalink | Comments (0)