Business Law Prof Blog

Widener Law Commonwealth Faculty Openings Include Commercial Law, IP, and More!

Widener Law Commonwealth seeks entry-level or pre-tenure lateral faculty members to fill three or more tenure track positions starting in the 2025-2026 academic year. We have specific needs in our year-long Contracts and Property courses.  As to the rest of the teaching package, we have flexibility, but we have particular needs in the areas of Legal Methods, Administrative Law, Commercial Law, Environmental Law, and Intellectual Property.  

 

Established in 1989, Widener Law Commonwealth is an independently accredited law school within Widener University.  Located in Harrisburg, PA, the law school's location in the capital of Pennsylvania provides impactful experiences for both our faculty and students.  

 

WLC is a dynamic community of teachers and scholars.  We pride ourselves on our dedication to our students, our engagement with teaching, and our scholarly impact.  Many of our scholars are actively engaged in law reform efforts at both the state and federal level.

 

The law school is committed to fostering an environment in which faculty, staff, and students from a variety of backgrounds, cultures, and personal experiences are welcomed and can thrive. Faculty and staff are active participants in our work to enhance diversity, equity, inclusion, and belonging.  We welcome applications from members of historically underrepresented groups.

 

We are looking for candidates with strong academic backgrounds, commitment to excellence in teaching, and demonstrated potential to be productive scholars.  Candidates must possess at least a JD degree or its equivalent.  

 

Application can be submitted by submitting a cover letter, CV, and list of three references to the appointments committee at [email protected].  Please contact Professor Robyn Meadows, Appointments Committee Chair ([email protected]), with any questions.

Business Law Faculty Searches - Missouri Law

The University of Missouri School of Law invites applications for multiple tenure-track or tenured positions. We are seeking candidates with a strong commitment to scholarship, teaching, and public service; a strong academic record; and either legal practice experience or advanced academic training. A J.D. or Ph.D. in a related field is required.

 

Our hiring needs are flexible, and we invite candidates in any subject matter to apply. We are especially interested in applicants planning to teach Property, Civil Procedure, Constitutional Law, Environmental Law, and corporate law topics.

 

Lateral candidates may be considered for hiring under Mizzou Forward. Mizzou Forward is a transformational effort to strengthen research innovation and improve the lives of people around the world. The initiative is an investment by the University of Missouri to hire up to 150 world-class faculty over the next several years. A successful Mizzou Forward candidate is a research leader with a robust publication and citation record, national awards and/or membership in national academies and external research funding or publication of at least one book. Candidates will also be committed to student success and university service. 

 

The University of Missouri-Columbia is the flagship campus of the University of Missouri system and is one of only 33 public universities in the country belonging to the Association of American Universities, a group of elite research universities. As both a research and land grant university, we have extraordinary opportunities for interdisciplinary interaction. In addition, Columbia is a wonderful college town halfway between St. Louis and Kansas City that is regularly ranked as one of the most livable cities in the country.

 

Application Procedure: Review of applications will begin August 15, 2024 and continue until the position is filled. To apply, please submit a cover letter, CV, and references for job ID 52095 at hr.missouri.edu/job-openings. Inquiries should be directed to Associate Dean Sandra Sperino at [email protected] or 573-882-1799.

 

Additional information about the School of Law is available at www.law.missouri.edu. The University of Missouri is an equal opportunity/ADA institution. The University of Missouri is fully committed to achieving the goal of an inclusive academic community of faculty, staff and students. We seek individuals who are committed to this goal and our core campus values of respect, responsibility, discovery and excellence. To request ADA accommodations, please call the Disability Inclusion and ADA Compliance Manager at 573-884-7278.

Stetson Law Seeking Business Law Faculty

STETSON UNIVERSITY COLLEGE OF LAW seeks to fill four entry-level or lateral tenure-track positions.  Our hiring needs will focus on candidates willing and eager to extend our existing institutional strengths and help us build into new areas of excellence. We specifically seek candidates with expertise in the areas of legal research and writing, public and private international law, transactional and corporate law, advocacy, elder law, professional responsibility, data privacy, cybersecurity, and compliance. We also seek candidates who will build upon our teaching depth in all our first-year courses.

Stetson Law was Florida’s first law school, founded in 1900.  Stetson Law has a national reputation for its advocacy program, ranked #1 in the nation, and its legal writing program, ranked #3 in the nation, by U.S. News and World Report.  It also boasts renowned centers, institutes, and clinics in various fields, such as advocacy, elder law, higher education, biodiversity and the environment, legal communication, Caribbean law, and veterans law. 

Stetson Law is part of a private university, which includes a College of Arts and Sciences, a School of Music, and a School of Business Administration, the latter of which supports the law school’s joint JD/MBA program.  Stetson nurtures a vibrant intellectual community, situated on a beautiful campus, just minutes from Florida’s Gulf Coast, in the Tampa Bay area, the nation’s 17th largest metro area. We encourage potential applicants to visit our website at https://www.stetson.edu/portal/law/ to learn more about our school, our community, and our programs. 

Stetson encourages applications from women, persons of color, LGBTQ+ candidates, and others who will contribute to our stimulating and diverse cultural and intellectual environment. Stetson’s Equal Employment Opportunity policy is available at: https://www.stetson.edu/law/career/nondiscrimination-policy-for-employers.php.

Applicants should email a cover letter that explains your teaching and scholarly interests, attaching a current curriculum vitae and contact information for at least three professional references.  Please send the email to Professors Rebecca Morgan and Stacey-Rae Simcox at [email protected].  You may also apply by paper mail to Professors Morgan and Simcox, Stetson University College of Law, 1401 61st Street South, Gulfport, FL 33707.  The Faculty Appointments Committee will continue to review applications until positions are filled. 

Hofstra Law Seeks Faculty to Teach Property and Intellectual Property

The Maurice A. Deane School of Law at Hofstra University invites applications for up to three entry-level or junior tenure-track or newly-tenured faculty members, to begin in Fall 2025. We seek candidates with a strong record of or potential for significant scholarship and commitment to excellence in teaching who will bring diverse experiences and perspectives to enrich our law school community. We seek candidates across all subject areas, but have particular interest in fulfilling curricular needs in Constitutional Law, Criminal Law, Property, Environmental Law, and Intellectual Property.

Located on Long Island, less than thirty miles from midtown Manhattan, Hofstra Law is known as an innovator in legal education, from being one of the first schools to implement clinical education as a means of graduating practice-ready lawyers to recent advancements in experiential learning and interdisciplinary programming.  Hofstra's strong national reputation is the product of a demonstrated commitment to attracting and supporting talented and productive faculty through summer research grants, sustained teaching load reductions, and other resources for both teaching and research initiatives. 

Applications should be submitted electronically at this link on the Hofstra portal and include the following: 

• A letter of application
• CV
• Scholarly agenda
• Proposed job talk topic or paper

Questions may be directed to Alafair Burke and Dan Greenwood, Co-Chairs of the Faculty Appointments Committee, at [email protected] and [email protected], respectively.

Miscellany

This week I just direct your attention to various items.

First, the NYSE recently proposed a rule change that would exempt closed end funds from the requirement of holding annual shareholder meetings.  Closed-end funds are frequently the subject of activist attacks – here I blogged about a Second Circuit case that struck down a takeover defense measure in a Nuveen fund – so a rule change here would be, you know, significant.  Anyway, here is the link to the comments the SEC has received, and the one I found particularly useful, was by the Working Group on Market Efficiency and Investor Protection in Closed-End Funds, which is a collection of law and business professors.

Second, Project 2025 is all in the news these days as a preview of what a second Trump administration might look like, and it turns out, there are proposals for changes to the federal securities laws.

We have the usual conservative stuff, like, get rid of disclosure requirements pertaining to “social, ideological, political, or ‘human capital’ information that is not material to investors’ financial, economic, or pecuniary risks or returns.”  Obviously, the issue here, unaddressed in the document, is that most commenters would agree that only financially material information should be required; the disagreement is over what that means.  And that becomes very obvious in the document, because it singles out the climate change disclosure rules as expensive and therefore ripe for repeal, but it never argues that they require disclosure of immaterial information (though to be fair, the document is full of proposals to repeal climate change-related regulation, and I haven’t read all of it; maybe somewhere else there’s an argument that climate change is financially immaterial).

Anyway, there’s also a proposal that three SEC commissioners be permitted to override the Chair with respect to placing items on the agenda, and pace Jarkesy, they’d allow defendants to choose whether their cases are heard in federal court or administrative courts (which incidentally seems similar to a proposal by Christopher Walker and David Zaring, though their paper is not cited). 

Digital assets would be commodities unless the holder has a contractual right to a share of earnings, or, in the case of liquidation, a claim on the assets.

They’d also simplify firm categories to public, private, and small (based on public float or – interestingly, beneficial owners rather than street name owners), and remove accreditation requirements.  Which as I understand it would functionally mean that companies could choose whether to file registration statements or not.  Intriguingly, however, they do propose to:

Abolish Rule 144 and other regulations that restrict securities resales and instead require a company that has sold securities to provide sufficient current information to the market to permit reasonable investment decisions and secondary sales.

I’m not sure how that proposal interacts with the earlier proposal to segment the market cleanly into public, private, and small firms, but there you go. 

Third, a historian at the University of Delaware, Professor Dael Norwood, is researching Delaware’s history of permitting corporations to vote in local elections; he’s blogged about his findings here and here.

And finally, here is a story about how the new trend of retail stores locking up products is backfiring, because it makes it harder for customers to actually, you know, buy stuff.  What intrigues me is how it seems as though stores are making these decisions based more on vibes than actual data, and rejecting the obvious solutions like hiring more staff to police the aisles (or even just to open the cabinets).  Efficient markets are supposed to force corporate managers to make more reasoned choices, no?  But apparently the heuristic “employees are an expense, do everything but hire people” is very tough to combat.  Even at companies like Walmart, which adopt pay for performance metrics.

Another Texas District Court Stays Fiduciary Rule

And now another Texas District Court has stayed the Department of Labor's Fiduciary Rule.  You can find the opinion here.  This followed closely on the heels of the first decision.  Both apply the 5th Circuit's prior precedent from its case striking down its prior attempt at issuing a fiduciary rule in the space.

Albany Law Faculty Search Includes Business Law!

ASSISTANT/ASSOCIATE/PROFESSOR OF LAW

 

ALBANY LAW SCHOOL, in New York's Capital City, invites applications from entry-level and lateral candidates for multiple faculty positions beginning in July 2025. We are committed to the diversity of our student body and faculty. We seek candidates with experience in teaching and mentoring students from groups historically excluded from higher education and the legal profession and whose work advances critical thinking on questions of importance to society. We welcome applications from qualified candidates across all areas and specializations, from core first-year classes to specialty upper-level courses. In addition, we have particular interest in candidates with expertise in the following primary areas: business law (including contracts, corporate, commercial and transactional law courses); clinic (including the Director of the Immigration Law Clinic and Director of a new Housing Clinic); Introduction to Lawyering. Secondary areas include: administrative law, legislation, regulation, tax, law & technology, intellectual property, criminal law, evidence, constitutional law and environmental/energy law.

As part of our unitary tenure system, tenure-track opportunities are available across all positions. In addition, Albany Law School is poised to begin new programming that will increase online opportunities for our students and our faculty. Applicants should express their potential interest in teaching in an online format, although an applicant's preference with respect to teaching format will not impact their candidacy.

Qualifications
We seek candidates with a strong academic record, capacity for scholarly merit, and whose work encourages innovative and critical thinking. Applicants must hold a J.D. degree or the equivalent and demonstrate a commitment to teaching excellence. Appointment rank will be determined commensurate with the candidate's qualifications and experience.

Application Instructions
For full consideration, applicants should apply by September 15, 2024, but we recommend that you submit your materials as soon as possible. To apply, please submit a cover letter, curriculum vitae, research agenda, writing sample, diversity statement, and the contact information for at least three references. Applicants seeking a lateral appointment are encouraged to apply as soon as possible and will be considered on a rolling basis. For more information about these opportunities, please contact Professor Jennifer Martin, Recruitment Committee Chair, at [email protected]. All applications must be submitted on our employment webpage.

 

Compensation
The estimated salary range for this position is $90,000-$160,000 per year, plus comprehensive benefits package. Salary will be based on the rank and tenure status of appointment offered, the successful candidate's relevant experience, knowledge, skills and abilities, and in consideration of internal equity.
 

ABOUT ALBANY LAW SCHOOL: Established in 1851, ALBANY LAW SCHOOL is the oldest independent law school in the nation and the oldest law school in New York State. Our faculty are productive, collaborative, and growth oriented. We are committed to admitting and retaining a student body that represents the diversity of the society in which we live. Our students enter the law school from undergraduate institutions, other graduate studies, industry, and often as part of a career progression or change. Our graduates consistently secure employment and career advancement across several areas of practice, including government service, Big Law, and public interest. Our most recent graduating class performed over 52,176 hours of pro bono and public service work during their law school careers.

Albany Law School's commitment to diversity, equity, and inclusion means that our community does not discriminate on the basis of gender, gender identity or expression, race, creed, color, national origin, ethnicity, religion, disability, sexual orientation, marital status, familial status, pregnancy, domestic violence victim status, military or veteran status, genetic predisposition status, age, or any other protected characteristic under applicable local, state or federal law, in its programs and activities. We are committed to building and sustaining a more diverse, equitable, and inclusive community to address specific forms of discrimination that have historically affected the legal profession in particular. To that end, we take active steps to support this goal, including but not limited to: promoting Anti-Racism, working to actively oppose racism by advocating for changes in political, economic, and social life where necessary to overcome racial inequality; promoting Gender Justice, advocating changes necessary to ensure that everyone is treated equally and with respect and enjoys full rights and equal dignity regardless of their gender, transgender or nonbinary identity or expression, or lesbian, gay, bisexual, and queer existence; and, promoting Disability Equity, committing to ensuring the profession values access, self-determination, and an expectation and valuing of difference in terms of disability, identity, and culture.

 

ABOUT NEW YORK'S CAPITAL DISTRICT: As the home of the state capital of New York, the Capital District is a vibrant and diverse area with significant political impact both at the state and national levels. Albany, Troy, Schenectady, and Saratoga Springs are the four cities around which New York's Capital District-a metro region with over one million in population-is centered. Boasting some of the best schools in New York, access to mountain ranges and lakes, and the robust artistic life of the Hudson Valley, the region is especially attractive for its work-life balance. In addition, the Capital District is a short drive to major metropolitan regions including Boston, New York City, and Montreal.

Call for Papers - American University Business Law Review

Dear BLPB Readers:

“The American University Business Law Review (AUBLR) is placing a call for submissions of original legal articles and scholarly commentaries for its forthcoming issues.  As a distinguished publication committed to advancing scholarship in business law, AUBLR is dedicated to publishing high-quality and impactful pieces that address the complex challenges facing business today.  AUBLR is the first law review in Washington, D.C. dedicated solely to business issues and is ranked #15 in Business, Corporations, and Securities Law journals by Washington and Lee Law Journal Rankings.

We welcome submissions from academics, practitioners, and American University Law students, and we review submissions for possible publication on a rolling basis.  Submitting your work to AUBLR provides an excellent opportunity to contribute to the academic discourse in business law and to showcase your expertise to a wide audience. If you have pieces ready for submission or if you would like more information about our submission guidelines, please reach out to Zach Schumacher, AUBLR’s Senior Articles Editor at [email protected].  Additionally, you can find more details about AUBLR on our website: https://aublr.org.”

Kentucky Law is Looking for Business Law Faculty

THE UNIVERSITY OF KENTUCKY ROSENBERG COLLEGE OF LAW invites applications for an entry-level or lateral, tenure-track faculty position at the rank of Assistant or Associate Professor, beginning in August 2025. The College is seeking to fill needs in several areas of law, up to two faculty positions this year. We are interested in considering candidates who teach and/or research in Commercial Law, Contracts, Secured Transactions, and Bankruptcy as well as others not included in this list of priorities. We may consider an applicant for a full Professor position. The Rosenberg College of Law is an important part of a major research university and offers a collegial and supportive atmosphere for its faculty, staff, and students. Applicants should have a J.D. or equivalent law degree, a record of high academic achievement, and a demonstrated potential for excellence in teaching and in scholarly productivity. Salary for this position will be commensurate with experience.

To receive consideration for this position, applicants must apply through the University of Kentucky’s Integrated Employment System at https://ukjobs.uky.edu/postings/540069 where they can submit a letter of application and resume. Please send any questions to Faculty Appointments Committee Chair Alan Kluegel, [email protected], or by mail at the University of Kentucky Rosenberg College of Law, 620 South Limestone, Lexington, KY 40506-0048.

The University of Kentucky provides a range of employee benefits to its faculty. There are several healthcare plans available. Faculty are also eligible to participate in the University's retirement plan. Essentially, the University will deduct five percent of your salary and contribute it to the plan of your choice (among several investment alternatives), and the University contributes an additional ten percent to the plan. Several other insurance policies are available to faculty members. We can help you obtain further information on these benefits from Human Resources, or you can go to their website for additional Information (https://hr.uky.edu/insurance-and-retirement).

Lexington is in the center of the Bluegrass, an internationally acclaimed cultural landscape, and in close proximity to Louisville and Cincinnati. It is a community of 300,000 and is distinguished by its rating as one of the top 10 most educated cities in the nation (according to the U.S. Census), top 5 cities for young professionals (Kiplinger), top 3 mid-sized cities for lowest cost of living (KPMG LLP), and top 5 cities to raise a family (Forbes). More information on Lexington is available at http://www.visitlex.com and http://www.aceweekly.com.

The University of Kentucky is an Equal Opportunity University that values diversity and inclusion. Individuals with disabilities, individuals from minoritized populations, veterans, women, and members of other underrepresented groups are encouraged to apply.

Call for Papers: ILE/Penn Law Junior Faculty Business and Financial Law Workshop

Institute for Law & Economics
University of Pennsylvania Carey Law School

THIRD ANNUAL JUNIOR FACULTY
BUSINESS AND FINANCIAL LAW WORKSHOP

 

CALL FOR PAPERS

            The Institute for Law & Economics (ILE) at the University of Pennsylvania Carey Law School is pleased to announce its second annual Junior Faculty Business and Financial Law Workshop.  The Workshop will be held in person on November 22, 2024 at Penn Carey Law.

            The Workshop supports and recognizes the work of untenured legal scholars in the business and financial fields, including accounting, banking, bankruptcy, corporations, economics, finance, tax and securities, while promoting interactions with such scholars, selected tenured faculty and practitioners.  By providing a forum for the exchange of creative ideas in these areas, ILE also aims to encourage new and innovative scholarship in the business and financial arena.

            Approximately 6-8 papers will be chosen from those submitted for presentation at the Workshop.  One or more senior scholars and practitioners will comment on each paper, followed by a general discussion of each paper among all participants.  The Workshop audience will include invited untenured scholars, faculty from Penn Carey Law, The Wharton School, and other institutions, practitioners, and invited guests.

            We welcome submissions from scholars within the U.S. and abroad who hold a full-time tenure-track academic appointment but have not yet received tenure as of the submission date. Scholars who do not yet hold a full-time tenure-track academic appointment such as PhD or doctoral candidates, or visiting or academic fellows without a full-time tenure-track academic appointment are not eligible for consideration. Co-authored submissions are welcome so long as each of the authors individually meet the submission criteria. Work that is published or is expected to be published by the date of the Workshop is not eligible for submission. However, submissions may include work that has been accepted for publication so long as such work is still capable of incorporating substantive edits. ILE will cover reasonable travel, hotel, and meal expenses of all presenters.

            Those interested in presenting a paper at the Workshop should submit through this website: https://www.law.upenn.edu/live/forms/76-call-for-papers-junior-faculty-business-amp on or before September 6, 2024. Submissions may be in the form of an abstract, summary, or draft.  Please submit using the following format for your file name – author’s Last name.First name.Title (ex. Smith.Jane.BusinessLawPaper). Direct any inquiries related to the workshop to:

Professor Lisa M. Fairfax
University of Pennsylvania Carey Law School 
3501 Sansom Street
Philadelphia, PA 19104-6204
[email protected] 

            Submissions will be selected after review by members of ILE. Authors of accepted submissions will be notified by October 4, 2024. Please feel free to share this Call for Papers with any colleagues who may be interested.

Special Committees of One

Special committees in Delaware have an important role for cleansing various kinds of conflicted transactions, everything from negotiating controlling shareholder deals to vetting derivative lawsuits.  There is no rule regarding committee size; the Board can populate a committee with as many or as few people as it wants.

That said, Delaware caselaw suggests that courts will be somewhat suspicious of special committees consisting of only one member.  That member must be “'like Caesar's wife… above reproach.” Gesoff v. IIC Industries, 902 A.2d 1130 (Del. Ch. 2006).  In Gesoff, VC Lamb stated that a single member special committee would get “a higher level of scrutiny,” and noted that in that case, the special committee member deferred too much to a controlling shareholder – something that might not have happened if a “moderating influence,” via a second member, had been available.

Since then, however, a couple of decisions have blessed the actions of single-member special committees.

And then came the Delaware Supreme Court’s decision in In re Match Group Derivative Litigation, which held that – at least when a corporation attempts to cleanse a controlling shareholder transaction – all special committee members, and not just a majority of them, must be independent.

Which raises the question: in controlling shareholder situations, should boards create committees of one?

Independence is assessed after the fact, and especially in recent years – as the Delaware courts have become more nuanced in their analysis – it’s not always obvious who will count as independent after the fact.  The more members you add to a committee, the more chance that, later, a court will determine one of them was not independent.

And though there’s a lot of language in Delaware opinions about gimlet eyes being cast on single-member committees, it’s not exactly clear what the discount rate is.

Anyway, this is obviously an issue in Tornetta v. Musk; there, the “ratification” procedure involved a committee of one, and it’s not clear how Chancellor McCormick will approach the matter.  There are a lot of different directions she could go – she could say that ratification simply isn’t possible, she could say that Musk was only a controlling shareholder for the purposes of the original package and not for the ratification, or anywhere in between.  But Tornetta is an unusual situation in a lot of ways; I’m wondering what the calculus will be going forward for more traditional transactions.

DOL Fiduciary Rule - Stayed

In an opinion released earlier today, Judge Kernodle of the Eastern District of Texas has stayed the rule from going into effect.  

Although I have not had time to sit and digest it at length, Chevron's demise plays a significant role.  Consider this passage:

In reviewing agency action under the APA, “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” and should “set aside any [] action inconsistent with the law as they interpret it.” Loper Bright, 144 S. Ct. at 2261, 2273; see also Chamber, 885 F.3d at 369 (“A regulator’s authority is constrained by the authority that Congress delegated it by statute.”). A court should no longer defer to an agency’s interpretation of a statute but should decide for itself “whether the law means what the agency says.” Loper Bright, 144 S. Ct. at 2261 (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)).

The Court thus owes no deference to DOL’s interpretation of ERISA, but rather “begins with the text” of the statute—as all courts do. E.g., Ross v. Blake, 578 U.S. 632, 638 (2016); United States v. Lauderdale Cnty., 914 F.3d 960, 961 (5th Cir. 2019); see also Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[A] legislature says in a statute what it means and means in a statute what it says there.”). In doing so, the Court applies the “fundamental canon of statutory construction” that the words “should be interpreted as taking their ordinary meaning at the time Congress enacted the statute.” E.g., New Prime Inc. v. Oliveira, 586 U.S. 105, 113 (2019) (cleaned up); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 69–77 (2012) (“The ordinarymeaning rule is the most fundamental semantic rule of interpretation.”); Loper Bright, 144 S. Ct. at 2266 (“[E]very statute’s meaning is fixed at the time of enactment.” (quoting Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018))). The Court, moreover, must examine “the language and design of the statute as a whole.” E.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); see also Bustamante-Barrera v. Gonzales, 447 F.3d 388, 397 (5th Cir. 2006) (Courts “must read the statute as a whole, so as to give effect to each of its provisions without rendering any language superfluous.”).

This text could be cut and pasted into almost any decision reviewing an agency's rule.

The opinion also rejects the idea that people giving their life's savings to a financial adviser actually do indeed trust the adviser.  It follows the 5th Circuit to say that these relationships, unless ongoing, are simple ordinary arms-lengths market transactions.  It also finds that any adviser getting a commission cannot be a fiduciary. 

 

 

Texas Tech Law Hiring - Business Law

The School of Law at Texas Tech University invites applications for a full-time, 9-month tenure-track Professor of Law position to begin in August of 2025.  The position is open to both entry-level candidates and candidates who are on the tenure-track or tenured at another school.  Candidates who satisfy Texas Tech University’s requirements to be hired with tenure will also be eligible to hold the Frank McDonald Endowed Professorship in business law.

Required Qualifications

In line with TTU’s strategic priorities to engage and empower a diverse student body, enable innovative research and creative activities, and transform lives and communities through outreach and engaged scholarship, applicants should have experience or demonstrated potential for working with diverse student populations at the undergraduate and/or graduate levels within individual or across the areas of teaching, research/creative activity, and service.

Specific required qualifications are:

1. Candidates should have a J.D.;
2. Candidates should have a demonstrated potential for excellence in research, teaching, and service; and
3. Candidates should have demonstrated potential for excellence in the areas of Contracts and in corporate/business law, such as Business Entities, Securities Regulation, Mergers & Acquisitions, and related courses.

Preferred Qualifications

In addition to the required qualifications, individuals with the following preferred qualifications are strongly encouraged to apply:  Experience teaching corporate/business law courses and scholarly publications in corporate/business law areas.

About the University and School of Law

Established in 1923, Texas Tech University is a Carnegie R1 (very high research activity) Doctoral/Research-Extensive, Hispanic Serving, and state-assisted institution. Located on a beautiful 1,850-acre campus in Lubbock, a city in West Texas with a growing metropolitan-area population of over 300,000, the university enrolls over 40,000 students with 33,000 undergraduate and 7,000 graduate students.  As the primary research institution in the western two-thirds of the state, Texas Tech University is home to 10 colleges, the Schools of Law and Veterinary Medicine, and the Graduate School.  The flagship of the Texas Tech University System, Texas Tech is dedicated to student success by preparing learners to be ethical leaders for a diverse and globally competitive workforce.  It is committed to enhancing the cultural and economic development of the state, nation, and world.

The School of Law has approximately 440 students and 38 full-time faculty members.  The School of Law is an integral part of the University and offers 10 dual-degree programs with other Texas Tech schools and colleges. The School of Law has a strong focus on students and is committed to a practical education to produce practice-ready graduates.

About Lubbock

Referred to as the “Hub City” because it serves as the educational, cultural, economic, and health care hub of the South Plains region, Lubbock boasts a diverse population and a strong connection to community, history, and land.  With a mild climate, highly rated public schools, and a low cost of living, Lubbock is a family-friendly community that is ranked as one of the best places to live in Texas.  Lubbock is home to a celebrated and ever-evolving music scene, a vibrant arts community, and is within driving distance of Dallas, Austin, Santa Fe, and other major metropolitan cities.  Lubbock’s Convention & Visitors Bureau provides a comprehensive overview of the Lubbock community and its resources, programs, events, and histories.

Equal Opportunity Statement

All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, gender expression, national origin, age, disability, genetic information or status as a protected veteran.

To Apply for this Position

Please include the following documents in your application at the Texas Tech Jobs website  https://www.depts.ttu.edu/hr/workattexastech/

• Curriculum Vitae
• Cover Letter
• List of references

Questions about this position should be directed to Jarod Gonzalez, J. Hadley and Helen Edgar Professor of Law and Chair, Faculty Appointments Committee at [email protected]. For your application to be considered, you must submit it at the Texas Tech Jobs website. If you need assistance with the application process, contact Human Resources, Talent Acquisition at [email protected] or 806-742-3851.

Application Process

Submission of applications is preferred by September 16, 2024. To ensure full consideration, please complete an online application at https://www.depts.ttu.edu/hr/workattexastech/ Requisition # 38114BR.

The direct/derivative distinction strikes again

In November 2021, Hertz authorized a buyback of its stock.  The effect of the buyback to was transform CK Amarillo from a 39% stockholder – who also had board seats – into a 56% stockholder.

Public stockholders of Hertz sued, alleging that the Hertz directors violated their fiduciary duties by transferring control of Hertz to CK Amarillo, without requiring that CK Amarillo pay a control premium.

One critical question was: Is this claim direct or derivative?

Normally, claims arising out of stock buybacks are derivative claims.  And normally, when a stockholder continues to hold shares in the entity, and nothing has changed about those share characteristics, and the stockholder was not asked to vote on anything, claims arising out of corporate action are derivative.  And just recently, the Delaware Supreme Court decided Brookfield Asset Management, Inc. v. Rosson, 261 A.3d 1251 (Del. 2021), where it held that if a company sells new shares to a controlling stockholder on the cheap, the claim is derivative, not direct – overruling Gentile v. Rossette, 906 A.2d 91 99 (Del. 2006), which held the claim is both.

But, as I argued in my paper, The Three Faces of Control, Brookfield also implied that claims would in fact be direct if the corporate action caused someone who wasn’t a controller to become one, or if the corporate action gave new control rights to someone who hadn’t had them before.  I wrote:

This appears to have been a rather backhanded way of holding that, if an equity issuance did result in a shift from an uncontrolled status to a controlled one, shareholders would be permitted to bring claims for breach of fiduciary duty directly, rather than derivatively....

Additionally, the Brookfield court also seemed to have endorsed the notion that equity issuances might give rise to direct claims even if they did not result in the creation of a new controlling shareholder, so long as they ended up redistributing specific control rights away from the public shareholders

On June 20, in a bench ruling in Cascia v. Farmer, 2023-0520, Chancellor McCormick preliminarily agreed, holding that the plaintiffs could sue both directly and derivatively.  She stated that she might revisit matters later in the case, but for the purposes of a motion to dismiss:

Brookfield appeared to leave open the possibility that a transfer of control might give rise to dual-natured claims. The Court expressly stated in Brookfield that Gentile was overruled only "[t]o the extent the corporation's issuance of equity does not result in a shift in control from a diversified group of public equity holders to a controlling interest."

The high court also noted, again, that there was no "practical need for the Gentile carve-out" in part because other legal theories "provide a basis for a direct claim for stockholders to address fiduciary duty violations in a change of control context." Here, plaintiff's case is about the harm resulting from a change of control….

Look, I recognize that this is a clarification of Brookfield that I don't know that our Court has given before. And at base, I'm unwilling to reach a definitive ruling on this factual and legal issue at the pleading stage.  But you-all will have litigation ahead and many opportunities to convince me otherwise. At this stage, given the pleading-friendly standard we apply to plaintiffs, I'm denying the motion to dismiss the direct claims ….

So, obviously, I think this is the correct decision, but in the wake of SB 313, it’s more than that.

Suppose a board hands new control rights to someone via the use of a stockholder agreement. Under my interpretation of Brookfield, which Chancellor McCormick has now tentatively endorsed at least in part, challenges to that action may, at least on some occasions, be brought directly rather than derivatively. And it will be interesting to watch courts untangle when the rights are significant enough to be one or the other.

Business Law Openings at Oregon Law!

The University of Oregon School of Law invites applications from entry-level and lateral candidates for two tenure-track positions at the rank of either assistant or associate professor:

• Business & Sports Law: https://careers.uoregon.edu/cw/en-us/job/533942 

• Intellectual Property / Law & Technology: https://careers.uoregon.edu/cw/en-us/job/533943

Each position will start August 2025. Candidates of all viewpoints and employing any research methodology or approach are welcome to apply.

To apply for either position, applicants should submit (1) a letter of interest; (2) a current resume or CV; (3) a description of their research agenda; (4) a statement addressing their potential contribution(s) to diversity, equity and inclusion (see next paragraph); and (5) a list of references. To ensure consideration, application materials should be submitted by August 21, 2024, although applications will be accepted until the positions are filled.

As part of the application process, applicants must submit a statement about promoting equity, inclusion, and diversity in their professional careers. In evaluating such statements, the law school will consider an applicant’s awareness of inequities and challenges faced by students and faculty belonging to underrepresented or disadvantaged groups; track record (commensurate with career stage) of activities that reduce barriers in education or research for students and faculty belonging to underrepresented or disadvantaged groups; vision and plans for how their work will continue to contribute to the University of Oregon’s mission to serve the needs of our demographically and ideologically diverse state and student population and create an inclusive campus; and other relevant factors.

About the Law School

The University of Oregon School of Law is a dynamic, forward-thinking ABA-accredited law school. We are also Oregon’s only public law school, with our main campus in Eugene and a satellite campus in Portland, the state’s largest city. Our mission is to provide a worldclass education. We prepare students through excellent classroom teaching paired with robust experiential learning and professional development opportunities. We are nationally recognized for our top-ranked programs and distinguished faculty.

About the University of Oregon

The University of Oregon (UO) is an R1 institution, a member of the Association of American Universities, and enrolls approximately 20,000 undergraduate and 4,000 graduate students. The UO recently joined the Big Ten Conference, with student-athlete competition within the new group starting in 2024. As a part of this move, UO will also join the Big Ten Academic Alliance, bringing together research and academic institutions sharing a common mission of research, graduate, professional, and undergraduate teaching, and public service. The UO’s 295-acre main campus in Eugene features state-of-the-art facilities in a verdant, arboretum-like setting. Eugene, a vibrant city of approximately 200,000, is within easy traveling distance of the Pacific Coast, the Cascade Mountains, Portland, and the rest of the beautiful Pacific Northwest.

Applications must be submitted online using the relevant link above.

For questions about either position, please contact Professor Mohsen Manesh at [email protected]. 

UMKC Law Seeks Business Law Faculty

UNIVERSITY of MISSOURI-KANSAS CITY
SCHOOL of LAW

Job Description

The UMKC School of Law seeks to hire for an entry level or lateral tenure-track or tenured faculty position in Business Law and related fields, which will begin in Fall 2025. The School of Law is looking for faculty members with a strong commitment to educating lawyers for the twenty-first century and those who will actively participate in our collegial, collaborative community. We encourage applications from candidates who would add diversity to our faculty.

UMKC offers a wide range of traditional Business Law courses and also several projects-based and experiential learning courses and programs, some of which are interdisciplinary and involve interactions with departments in UMKC’s Henry W. Bloch School of Management and other academic units. As part of the J.D. program, students may earn a Business and Entrepreneurial Law Emphasis. Additionally, students with potential interest in business-related fields are presented with a variety of skills training options through a team-taught Transactional Lawyering Skills Lab course and other simulation courses, an Entrepreneurial Legal Services Clinic, an Intellectual Property Clinic, and competitions, internships, externships, and supervised independent study opportunities.

One component of the faculty position would be teaching a Business Organizations course. Beyond that, there is flexibility for candidates with business-oriented research and teaching interests to fashion a teaching package that might include a combination of courses from such subjects as Antitrust Law, Business Finance, Mergers and Acquisitions, Securities Regulation, Taxation of Corporations, co-teaching in the Transactional Lawyering Skills Lab course; and other courses such as Health Care Law or Business Planning where knowledge of organizational structures strongly overlaps. The teaching package might also include participation in one of our innovative projectsbased interdisciplinary entrepreneurship courses operated out of the Law School-led Center for Law, Entrepreneurship & Innovation, which connects faculty, staff, and students from multiple UMKC academic units and other programs with projects and in many cases collaborators from other institutions and organizations. Many of the Law School’s entrepreneurship endeavors have been supported by funding from the Ewing Marion Kauffman Foundation. We also welcome the inclusion of one or more other courses that offer critical perspectives on business law, which the candidate might propose to enrich the Law School’s business curriculum.

Qualifications

A J.D. or equivalent degree is required.

Anticipated Hiring Range

Rank and salary are commensurate with qualifications, experience and evidence of success in legal education and research. This is a 9-month, benefit-eligible, full-time (1.0) faculty appointment eligible for tenured promotion. Your total compensation goes beyond the number on your paycheck. The University of Missouri provides generous leave, health plans, and retirement contributions that add to your bottom line. Our academic workloads and schedules promote a positive work/life balance.

Application Materials

The Faculty Appointments Committee of the School of Law will review applications submitted through the UMKC Human Resources portal. For consideration, you must apply online at http://www.umkc.edu/jobs, click on Academic Positions (Job Opening ID 52378).

Please combine all application materials (personal letter of interest and applicable experience which qualifies you for a tenure-eligible faculty position, current curriculum vitae, and evidence of success in publication) into one PDF or Microsoft Word document and upload as your resume attachments. Limit document name to 50 characters and do not include any special characters (e.g., /, &, %, etc.).

For more information, please contact:

Mikah Thompson
Chair, Faculty Appointments Committee
UMKC School of Law
[email protected]
816-235-2688

• If you are experiencing technical problems during application, please email [email protected].
• Reasonable accommodations may be requested during the application and recruitment process. If you need an accommodation, please contact the Office of Affirmative Action at (816) 235-1323.
• Higher education transcripts and/or verification of J.D. will be required for candidates advancing as finalists.
• Candidates will receive prior notification if references will be contacted.

Handling of Application Materials

After initial review by the committee all uploaded materials may be shared with all faculty in the prospective home department. For affiliations and joint appointments materials may be shared with all faculty in all departments involved.

Application Deadline

Review of applications begins upon receipt. Applications will be accepted until this position is filled.

Other Information

The School of Law at the University of Missouri-Kansas City is the urban law school of the University of Missouri System and is located on a beautifully landscaped campus in the Country Club Plaza area of Kansas City, Missouri. It is the only law school in a diverse and vibrant metropolitan area of more than two million people and offers courses leading to J.D. or LL.M. degrees for approximately 450 students. It benefits from its metropolitan location, a university with opportunities for interdisciplinary collaboration, a dedicated faculty and staff, and strong community and alumni support.

UMKC is a public, urban, research university with more than 15,000 undergraduate, graduate, and professional students. It is part of the larger University of Missouri System. Our university is committed to being a model urban university that is recognized for our partnerships with surrounding urban communities to effectively foster a healthy, safe, and more economically secure quality of life.

A City on the Rise: Big City Life and Midwest Charm, Kansas City offers the best of both worlds - a vibrant, urban community with midwestern appeal and an affordable cost of living. The university is located in a Kansas City metropolitan area that is among the most entrepreneurial cities in America with a population of more than 2.4 million. Our UMKC campuses are centered in the hubs of business activity, cultural arts, (some great barbeque and ethnic cuisine!) and health science research engagement for both the Volker and Health Sciences campuses. Our community boasts championship professional athletic teams, NASCAR racing, and a rich history of music and performing arts. Our beautiful state provides rivers, lakes, biking/hiking trails and mountains for outdoor enthusiasts all within an easy drive.

Benefit Eligibility

This position is eligible for University benefits. As part of your total compensation, the University offers a comprehensive benefits package, including medical, dental and vision plans, retirement, and educational fee discounts for all four UM System campuses. For additional information on University benefits, please visit the Faculty & Staff Benefits website at https://www.umsystem.edu/totalrewards/benefits.

Values Commitment

We value the uniqueness of every individual and strive to ensure each person’s success. Contributions from individuals with diverse backgrounds, experiences and perspectives promote intellectual pluralism and enable us to achieve the excellence that we seek in learning, research and engagement. This commitment makes our university a better place to work, learn and innovate.

In your application materials, please discuss your experiences and expertise that support these values and enrich our missions of teaching, research, and engagement.

Equal Employment Opportunity

The University of Missouri System is an Equal Opportunity Employer. Equal Opportunity is and shall be provided for all employees and applicants for employment on the basis of their demonstrated ability and competence without unlawful discrimination on the basis of their race, color, national origin, ancestry, religion, sex, pregnancy, sexual orientation, gender identity, gender expression, age, disability, or protected veteran status, or any other status protected by applicable state or federal law. This policy applies to all employment decisions including, but not limited to, recruiting, hiring, training, promotions, pay practices, benefits, disciplinary actions and terminations. For more information, visit https://www.umsystem.edu/ums/hr/eeo or call Human Resources at 816-235-1621.

To request ADA accommodations, please call the Office of Equity & Title IX at 816-235-6910.

Bragging on a Student Today . . . .

We do not often talk or write about the scholarship our students produce.  A number of my students have won prizes for their work; more have seen their work published (in one case I know of, three times!).  I wish I had said more about all of that as it was happening.

Today, I want to promote the work of a rising 3L that I am working with on a project.  He is the Editor-in-Chief of the Tennessee Journal of Law and Policy.  His name is Caleb Atkins.

Caleb recently completed work on an article in the area of healthcare regulation, a big topic in the State of Tennessee, as you may know.  Healthcare is a big business in Tennessee.  Many of our students get jobs in that field. 

I became interested in Caleb's research while he was working on it because of my knowledge of the merger that underlies and inspired his inquiries.  The consolidation of healthcare facilities in various parts of the United States can have alarming effects on people.  His article provides illustrations.  I just love that Caleb has taken on this work as a student.  Months ago, I asked if I could share his work with you once it came out. 

I got news of the publication of the article while I was away a few weeks ago.  It is entitled "The Anticompetitive Nature of Certificate of Need and Certificate of Public Advantage Laws in the United States."  It was recently published in the Marquette Benefits & Social Welfare Law Review here.  The abstract for the paper is set forth below.

Certificate of Need (CON) laws serve as a major barrier to entry in the healthcare market, which already suffers from a high degree of market concentration. Certificate of Public Advantage (COPA) laws give healthcare providers robust antitrust immunity by allowing a merger to go through that would oftentimes be illegal. These COPAs can lead to a reduced quality of care for patients, reduced access to care in the communities where hospitals with COPAs operate, reduced wages for hospital employees in the relevant geographic market, and increased prices for patients seeking care. Given the essential nature of healthcare services, addressing the anticompetitive effects of CON and COPA laws is of the utmost importance.

In places like Northeast Tennessee, the anticompetitive effects of CON and COPA laws are particularly troubling when we consider how little economic power the citizens in the region wield. In 2018, a COPA was granted that allowed the two largest hospitals in the region, Mountain States Health Alliance (Mountain States) and Wellmont Health Systems (Wellmont Health), to form a new entity, Ballad Health Systems (Ballad Health), in a merger. Since the merger in 2018, the citizens of Northeast Tennessee have been incredibly unsatisfied with what Ballad Health has done in their region. Accordingly, the state of Tennessee should eliminate, or at least greatly restructure, their CON laws and require Ballad Health to deliver on their promises that the state and Ballad used to justify the COPA being created in the first place. Additionally, states that are considering eliminating their CON laws or whether to grant a COPA to a hospital should carefully consider the harms that CON and COPA laws can cause.

Law school can make a difference.   Law students can make a difference.  Caleb is a great example of what is great about all that.  And if you are interested in healthcare regulation--and even if you are not--you may want to check out his article.

Advance notice bylaws: the Delaware Supreme Court weighs in

This is my second blog post this week because I am procrastinating.

Anyway, a while back I blogged about Kellner v. AIM Immunotech, where VC Will invalidated certain advance notice bylaws that had been amended in the middle of a heated proxy contest.  The difficulty was that the case was heard on an expedited basis, in advance of the shareholder meeting, so that Will could determine if the dissident's nominees could stand for election.  And the dissident was ... not great.  The campaign had been orchestrated by a convicted felon who tried to hide his involvement, and the dissident had submitted some false information in response to the bylaw requests.  At the same time, though, the bylaws had been adopted as a blocking mechanism, and some were unintelligible.  

In that context, Will held that four of the amended bylaws failed enhanced scrutiny, but two could stand.  She concluded that the board had acted with a proper purpose - to obtain information so that it could fairly evaluate a director-nominee - but that several of the onerous bylaw amendments were disproportionate to the threat posed.  With respect to one bylaw, which was unreasonably broad, Will blue penciled it back to the original, pre-amendment version and held that the dissident had failed to comply with it.  For that reason, as well as some less important instances of false information submitted in connection with the remaining bylaws, she held that the dissident's nominees could not be considered at the meeting.

On appeal, the Delaware Supreme Court took a different approach and reversed Will's factual findings while denying that it had reversed her factual findings.

First, the Delaware Supreme Court held (and we should all take note of this for future cases) that advance notice bylaws may be evaluated for invalidity, and separately for inequity.  A validity challenge is a facial challenge, and relatively narrow: quoting ATP Tour, Inc. v. Deutscher Tennis Bund, 91 A.3d 554 (Del. 2014), the Court held "A facially valid bylaw is one that is authorized by the Delaware General Corporation Law (DGCL), consistent with the corporation’s certificate of incorporation, and not otherwise prohibited."  The fact that it might operate inequitably or unlawfully in some circumstances is not sufficient to render the bylaw invalid.

On that analysis, the Court found that one amended AIM bylaw was invalid, because it was unintelligible: "The bylaw, with its thirteen discrete parts, is excessively long, contains vague terms, and imposes virtually endless requirements on a stockholder seeking to nominate directors....An unintelligible bylaw is invalid under 'any circumstances.'"

The other bylaws, however, were found to be facially valid.  But, they still had to be "twice-tested" in equity.  And that test is the enhanced scrutiny test, as articulated in Coster v. UIP Companies, 300 A.3d 656 (Del. 2023).  First, the board must identify a threat and act in good faith; second, the board's response must be proportional.

In this case, the Court found that the totality of the amended bylaws - which were exceptionally broad, required information potentially unknown to the nominee, were ambiguous, unreasonable, and ultimately at odds with the board's stated purpose of information-collection - suggested that the board did not, in fact, act with a proper purpose when amending them.  Instead, the purpose was to block the dissident entirely.  When it comes to proxy contests, boards may try to inform stockholders, but they can't substitute their own judgment for the stockholder vote; therefore, all of the bylaws (including the two that Will did not find to be unreasonable) had to be stricken.  They were all fundamentally tainted by the board's bad faith:

In the middle of a proxy contest, the AIM board adopted one unintelligible bylaw and three unreasonable bylaws. It then used the Amended Bylaws to reject Kellner’s nomination notice...The unreasonable demands of most of the Amended Bylaws show that the AIM board’s motive was not to counter the threat of an uninformed vote. Rather, the board’s primary purpose was to interfere with Kellner’s nomination notice, reject his nominees, and maintain control. As the product of an improper motive and purpose, which constitutes a breach of the duty of loyalty, all the Amended Bylaws at issue in this appeal are inequitable and therefore unenforceable.

So what's funny here is that the Court claims it's relying on Will's own factual findings - she was the one who found the bylaws unreasonable, she was the one who dropped stray comments like "The provision seems designed to preclude a proxy contest for no good reason," which the Delaware Supreme Court repeatedly quoted - to conclude the board acted with an improper purpose.  But that absolutely was not what Will found, after trial!  She explicitly held the opposite:

AIM’s Board had an objective of obtaining transparency from a stockholder seeking to nominate director candidates...The Board made a reasonable assessment, in reliance on the advice of counsel, that this information-gathering objective was threatened...the Board sought to prevent “the types of manipulative, misleading, and improper conduct” experienced in 2022 from happening again.....

The Board has proven that its actions served proper corporate objectives.  Specifically, it sought to obtain full and fair disclosure so that it could adequately evaluate a nomination and that stockholders could cast informed votes....

Anyway. That part is just drama.

The substantive issue is this: Remember Will's dilemma.  Both sides had behaved badly.  If the bylaws were struck entirely, the corporation would be unprotected against a lying bad faith actor.  That's why she felt the need to blue-pencil one bylaw, by restoring an older version, and measure the dissident's compliance against that bylaw.  Which struck me as a very odd solution, and I wondered how the Delaware Supreme Court would address the problem.

The Delaware Supreme Court, however, did not address the problem.  It was not acting in the middle of a proxy contest; by the time of the appeal, the shareholder meeting was over.  So, in light of the fact that Will had found the dissident behaved badly, the Delaware Supreme Court simply said no further relief was warranted:

We also note that, according to the Court of Chancery, Kellner submitted false and misleading responses to some of the requests.  Given the court’s countervailing findings about Kellner’s and his nominees’ deceptive conduct, no further action is warranted. The judgment of the Court of Chancery is affirmed in part and reversed in part. The case is closed.

Okay ... nothing needs to be done because there's no proxy contest anymore.  But what about in future Kellners?  What do you do when both sides behave badly?

Well, the Court says that if the Board acts for a proper purpose, but is overly aggressive, then Chancery can choose to enforce parts of bylaws as equity demands:

if the bylaws were adopted for a proper purpose but some of the advance notice provisions were disproportionate to the threat posed and preclusive, the Court of Chancery has the discretion to decide whether to enforce, in whole or in part, the bylaws that can be applied equitably

.... it may be necessary to assess how bylaws work together, but one problematic bylaw does not invalidate others when the board has a proper motive. Overbroad invalidation would be extreme and unnecessary when the board acted with proper motive to protect a legitimate corporate interest. 

That discretion does not seem to apply, though, if the Board is not acting for a proper purpose, i.e., when it's simply trying to block a dissident - even if the dissident really is a for real threat, in the ordinary (criminal) sense of the word.  Then, the lack of a proper purpose seems to mean defenses, including advance notice bylaws, can't be employed, and stockholder protection is left solely to ... I guess (yikes) the federal securities laws.

Anyway, the takeaways then are: (1) improper purpose will completely kill a defensive strategy, with no room for courts to uphold the strategy in part, and (2) the fact of improper purpose can be inferred from nature of the strategy itself.  This plays out very differently in proxy contests than in tender offers, of course; in tender offers, the desire to block the offeror is not an improper purpose; in the context of proxy contests, blocking a dissident from running the contest (as opposed to educating shareholders), is off the table.  

Free Email Alerts for SEC EDGAR Filings

Andrew Jennings recently created a free tool to generate email alerts for SEC EDGAR filings.  It's available here.  It's a nifty website that doesn't require any login or registration.  You just set up an alert and it'll send you an email to confirm and manage the alert.  You can even let other people subscribe to your alert if you're working with a team.

This is pretty useful if you're tracking a sector and want to get filings sent to you or if you want to monitor all filings of a particular type--say cybersecurity incident 8-Ks.  The alert tool is probably highly useful for in-house counsel to keep tabs on other companies in their sector.

If only this case had existed a couple of years ago

In 2022, I published an article about discrimination against women capital providers.  The thesis was that oppression and discrimination against women as investors is an unrecognized category; employment law, of course, recognizes discrimination against women employees, and family law recognizes that women may be financially disadvantaged within relationships and tries to make allowances for that.   But business law does not have a vocabulary to recognize how invidious discrimination and interpersonal dynamics may work against women, and that’s a problem, in part because business law is often called upon to fill in the gaps in situations that employment and family law don’t cover.

In my article, one of the examples I used was Horne v. Aune, 121 P.3d 1227 (Wash. Ct. App. 2005), in which a man and a woman – in a romantic relationship – bought a house together.  They intended merely to live in the house, but they formalized their ownership in a partnership agreement.  When the relationship terminated – because the man was charged criminally after shoving the woman and assaulting her son – the court relied on general partnership principles to determine how to dispose of the property, without considering the broader context of the relationship.

Anyway, that was what I was thinking about when I read Gibson v. Konick, recently decided by VC Will in Delaware Chancery.   A man and a woman decided to purchase a house together for their personal use.  They did so through an LLC, in which they each had 50% interest.  Both contributed to the purchase price, and both were required to pay down the mortgage.  The relationship eventually soured, leaving it to LLC law to determine how their joint property would be handled.

If this really were a pure LLC business relationship, I’d shrug, but that wasn’t the situation – this was a romantic relationship being filtered through an LLC, and there were implications of the kind of power imbalances that employment law and family law recognize, but business law does not.  In this case, the man was 29 years older than the woman, and an attorney.  He drafted the LLC agreement, which he represented to her as “standard,” but which in fact contained terms that disadvantaged her, including a waiver of inspection rights, a waiver of the woman’s right to participate in LLC management, and a forfeiture of her economic rights if she withdrew from the LLC or attempted to transfer her interest.

All of this meant that when the relationship ended, the man was able to: (1) deny the woman any access to the property and the LLC joint bank account; (2) insist that she not sell her interest; (3) refuse to buy her interest, but (4) require that she continue to make her share of the payments on the mortgage.  The man refused to take her calls, and when she attempted to visit him to discuss the property, he insisted she was trespassing, making any communication or negotiation impossible.   As VC Will put it, the woman had “been deprived of the upside while she continues to pay costs, with no guarantee of recovering them.”

The woman ultimately sued for judicial dissolution under 6 Del. C. § 18-802.  That statute permits dissolution “whenever it is not reasonably practicable to carry on the business in conformity with a limited liability company agreement.”

Of course, there was no actual business being conducted by this LLC – that was the whole point – so instead VC Will concluded that the “purpose of enjoying the home over the long-term” had been “frustrated” by the couple’s breakup, and the deadlock between the two members meant that it was “no longer reasonably practicable to maintain the LLC.”  Therefore, dissolution was warranted, notwithstanding the fact that the LLC agreement would have required a unanimous vote of the membership to dissolve.

That certainly seems like a fair resolution to me, but, my point is, it also reflects the awkwardness of trying to shoehorn what was fundamentally a family dispute into laws designed for business relationships.  There really should be a better framework.