May 2016

The Duke Law School will host the 11th Annual Conference on Empirical Legal Studies (CELS) on November 18-19, 2016.  CELS is a highly regarded interdisciplinary gathering that draws scholars from across the country and internationally and is sponsored by the Society for Empirical Legal Studies. The conference brings together hundreds of scholars from law, economics, political science, psychology, policy analysis, and other fields who are interested in the empirical analysis of law and legal institutions. Papers are selected through a peer review process and discussion at the conference includes assigned commentators and audience questions.

Paper submissions are due by July 10, 2016.

For more information about the conference click here.

Some time ago, I wrote the post Better Teaching Idea: Try to Notice When the Wind Is at Your Back. That post emerged from some observations while running, and today’s post has the same origin.

This month I have been trying to up my miles again for no particular reason. I don’t run for races. I run to run. And to feel like I am at least doing something to stay in some semblance of good shape (it’s not really working).  I now run 4 miles most days. Maybe a little more or less, but that’s the norm this month.  The past two days, I ran from my house, which is at the top of a hill. It is more of a mountain when I am running up it. (I promise, I am getting somewhere with this.)  

I often go down to the rail trail along the river, which is a mostly flat, pretty place to run.  The last two days, I have been running from my house. This means that if I want to get any distance in, I need to go down the mountain.  And, of course, it means I need to get back to the top.  Now, I…

Well, given that I just spent several hours constructing a somewhat lengthy post that I apparently lost (aargh!), I will keep this relatively short.

This summer, I am working on a benefit corporation project for the Annual Adolf A. Berle Symposium on Corporation, Law and Society (Berle VIII) to be held in Seattle next month.  In that connection, I have been thinking about litigation risk in public benefit corporations, which has led me to consider the specific litigation risks incident to mergers and acquisitions (“M&A”).  I find myself wondering whether anyone has yet done a benefit corporation M&A transaction and, if so, whether a checklist might have been created for the transaction that I could look at.  I am especially interested in understanding the board decision-making aspects of a benefit corporation M&A transaction. (Haskell, maybe you know of something on this . . . ?)

Preliminarily, I note that fairness opinions should not carry as much weight in the benefit corporation M&A approval context, since they only speak about fairness “from a financial point of view.” Benefit corporation boards of directors must consider not only the pecuniary interests of shareholders in managing the firm, but also the firm’s articulated public benefit or benefits (which…

Last week, Chancellor Andre Bouchard dismissed the derivative complaint filed against Walmart concerning the WalMex bribery scandal, on the grounds of issue preclusion:  Earlier, a federal court in Arkansas had dismissed identical claims filed by a different set of plaintiffs. 

The reason that the Arkansas decision came so much earlier than the Delaware decision was, of course, that the Arkansas plaintiffs filed their complaint without first exercising their inspection rights under Section 220.  The Delaware plaintiffs did exercise their rights, as Delaware has repeatedly counseled plaintiffs should do, and fought Walmart for years over it – taking a trip to the Delaware Supreme Court as a result.

Standing alone, then, this case stands for the proposition that Delaware has no way of enforcing its own guidance to plaintiffs that they seek books and records before filing a derivative claim. 

But there’s hope – because this is exactly the kind of destructive competition among plaintiffs’ firms that forum selection bylaws were meant to address.  Had such a bylaw been in place, all of the plaintiffs could have been shunted into a Delaware forum.

Right?

Unfortunately, no.  Because defendants have the freedom to ignore a forum selection bylaw if their interests…

As previously mentioned, last week I presented at the Center for Nonprofit Management’s Bridge to Excellence Conference. 

Below I share a few thoughts. Some of these thoughts I have shared before about other conferences, but I think they bear repeating.

  1. Value of Practitioner Conferences. As an academic, it is easy for me to stay mostly in the academic world. I do think, however, going to practitioner conferences can be quite useful. Maybe most important, these conferences can help you meet people who are in practice, especially in your local area. People I have met at practitioner conferences have served as guest speakers in my classes, provided individual advice to students, helped students find jobs, and provided ideas for blog posts and scholarship. Practitioner conferences can also be useful as they tend to address very practical problems and remind me that I want my scholarship to speak to not only academics, but also the bar, bench, and business people. Attending one practitioner conference can lead to more opportunities—other speaking engagements, board member openings, and consulting opportunities, and the like. 
  2. Check Technology Before Speaking. I learned this early in my academic career, and I found the IT person well before my talk and made

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Today, I received notice of a web seminar on corporate political activity to be hosted by one of my former firms, King & Spalding.

Interested readers can register for the free web seminar here.

More information, from the notice I received, is reproduced below.

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Election 2016: What Every Corporate Counsel Must Know About Corporate Political Activity     

Thursday, May 26, 2016, 12:30 PM – 1:30 PM ET

                In this election year, corporations and their employees will be faced with historic opportunities to engage in the political arena. Deciding whether and how to do so, however, must be made carefully and based on a thorough understanding of the relevant law. In this presentation, King & Spalding experts will address this timely and important area of the law and provide the guidance that corporate counsel need when engaging in the political process.            

California is the back on my short list for the state’s inability to successfully differentiate between corporations and limited liability companies (LLCs).  Last week, an “unpublished/noncitable” decision that was published on Westlaw provided a good example.

The opinion states: 

A corporation—including a limited liability corporation—may be served by effecting service on its agent for service of process. (Code Civ. Proc., § 416.10, subd. (a); see also Corp.Code, § 17701.16, subd. (a) [allowing service on limited liability corporations under Code Civ. Proc., § 413.10 et seq.].)7
*12 One of the ways a limited liability corporation can be served is by substituted service. (1 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) ¶ 4:172, p. 4–26.) This requires that a copy of the summons and complaint be left at the office of the person to be served (or, in some cases, at the mailing address of the person to be served), in the presence of a person who is apparently in charge, “and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the

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Breaking academic news:

Elsevier, a world-leading provider of scientific, technical and medical information products and services, announced today the acquisition of the Social Science Research Network (SSRN)….SSRN will be further developed alongside Mendeley, a London-based free reference manager and scholarly collaboration network owned by Elsevier….

Elsevier provides web-based, digital solutions – among themScienceDirect, Scopus, Elsevier Research Intelligence and ClinicalKey – and publishes over 2,500 journals, including The Lancet and Cell, and more than 33,000 book titles, including a number of iconic reference works. Elsevier is part of RELX Group, a world-leading provider of information and analytics for professional and business customers across industries. http://www.elsevier.com

What does this change mean for publishing authors and researchers?  Content will remain free to post and download. Elsevier acquired Mendeley in 2013 creating controversy over Mendeley’s continued “trustworthiness” as a part of a for-profit enterprise. Since the acquisition, Mendeley doubled its subscribers from 2.5 to 5 million.  Elsevier’s interest in SSRN, a profitable site for over 13 years, is primarily in its potential for generating user data and analytics.  Integrating SSRN and Mendeley services is predicted to strengthen

“connections between SSRN author pages and Mendeley professional profiles, and workflow connections

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OK.  I count 17 Form C filings (not including a few amended filings, two of which are noted below) on “Day 1” of U.S securities crowdfunding.  Not a bad showing for the first day out, in my view.

First in line? Bloomery Investment Holdings, LLC with an offering of LLC interests on StartEngine Capital LLC.  The firm filed its Form C a bit after 6:30 AM.   Early risers!  Eager beavers!  (Maybe too eager, since an amendment was filed less than two hours later–apparently because the attendant Form C .pdf was rejected in the initial filing.)  The firm’s subsidiary is a moonshine-based liqueur producer.  At this writing, $11,700 of the target threshold funding of $300,000 (1000 units at $300 per unit) has been committed–$288,300 to go!  ($600 came in while I was typing this post.)  And it looks like the base of operations is in West Virginia, Josh!  Do you know these folks?  (Slogan: “Take a Shot on Us.”)

StarEngine also is hosting another crowdfunded offering filed today.  The issuer on this offering, GameTree PBC (yes, Haskell, a public benefit corporation!), a social network for gamers based in Solana Beach, California.  GameTree is selling common stock at $2 per share and…