April 2017

In this semester’s student mentorship group, we have been discussing personal priorities and principles. The consensus from the students seems to be that this topic is not only useful, but also more difficult than originally envisioned. A number of the students expressed a lack of clarity regarding their own priorities and life principles, but they recognized the need for deep thinking about those things.

Outlining priorities and principles could be a useful exercise for politicians and professors as well. Without a clear understanding of our priorities and principles, we often drift toward our political parties and the visible rewards dangled in front of us.

Regarding both politicians and professors, I am most inspired by those who take stands that do not benefit their party or themselves, but rather make the stand because it is the “right thing” to do. Professors, obviously, have more freedom to seek and speak the truth, but I think that professors’ impact will be greater if they stick to their principles regardless of the party in power.

Of course sticking to priorities and principles does not guarantee a good or admirable outcome. One must have “good” priorities and principles. What qualifies as “good” is beyond the scope of…

Ratings behemoth Bill O’Reilly is out of a job at Fox News “after thorough and careful review of the [sexual harassment] allegations” against him by several women. Fox had settled with almost half a dozen women before these allegations came to light, causing advertisers to leave in droves once the media reported on it. According to one article, social media activists played a major role in the loss of dozens of sponsors. Despite the revelations, or perhaps in a show of support, O’Reilly’s ratings actually went up even as advertisers pulled out. Fox terminated O’Reilly– who had just signed a new contract worth $20 million per year– the day before its parent company’s board was scheduled to meet to discuss the matter. The employment lawyer in me also wonders if the company was trying to preempt any negligent retention liability, but I digress.

An angry public also took to social media to expose United Airlines’ after its ill-fated decision to have a passenger forcibly removed from his seat to make room for crew members. However, despite the estimated 3.5 million impressions on Twitter of #BoycottUnited, the airline will not likely suffer financially in the long term because…

Before I became a lawyer, I had the privilege of working with a number of great people at a public relations firm in Los Angeles. That firm was founded by Al Golin, who passed away last week, and by all accounts, he will be missed. Mr. Golin was the PR person behind McDonald’s, and it was a very symbiotic relationship.

I did not meet Mr. Golin, personally, but his vision was definitely part of the firm culture. Early on, his vision of good business was on display. As the New York Times reported:

Before corporate social responsibility and cause-related marketing became fashionable, Mr. Golin was instrumental in creating what he called a trust bank. He encouraged the McDonald’s Corporation to sponsor Ronald McDonald Houses for children with life-threatening illnesses, an All-American High School Marching Band, an All-American High School Basketball Game and the Jerry Lewis Muscular Dystrophy Telethon — all to build good will that could be drawn upon when the company needed public support.

I can’t say Mr. Golin is the reason I believe firms can be good corporate citizens without laws requiring them to do so, but I frankly like the idea that firms can compete to …

I rarely post twice in one day, but I am making an exception today.  After posting this morning, I learned that today is International Haiku Poetry Day.  I loved Haiku poetry as a kid.  I still love it as an adult.  It has structure–a structure that, in my opinion, encourages both brevity and creativity.

In honor of this special day, I wrote a personal haiku for my Facebook page.

Yoga feeds the soul
And calms the body and mind.
Breathe and move. Repeat.

I am pretty proud of that one, inspired by my Monday night Iyengar practice.  So, I thought I would try my hand at a BLPB haiku.  Here goes.

A new President.
Time to revamp business regs!
Uncertainty reigns.

The inspiration for this haiku is obvious . . . .  :>)

Prefer more humorous verse? I also loved limericks.  So, I checked to see whether there might be an International or National Limerick Day.  Indeed, it appears that we will celebrate limericks on Friday, May 12, 2017.  Hmm . . . .

As Haskell earlier announced here at the BLPB, The first U.S. benefit corporation went public back in February–just before publication of my paper from last summer’s 8th Annual Berle Symposium (about which I and other BLPB participants contemporaneously wrote here, here, and here).  Although I was able to mark the closing of Laureate Education, Inc.’s public offering in last-minute footnotes, my paper for the symposium treats the publicly held benefit corporation as a future likelihood, rather than a reality.  Now, the actual experiment has begun.  It is time to test the “visioning” in this paper, which I recently posted to SSRN.  Here is the abstract.

Benefit corporations have enjoyed legislative and, to a lesser extent, popular success over the past few years. This article anticipates what recently (at the eve of its publication) became a reality: the advent of a publicly held U.S. benefit corporation — a corporation with public equity holders that is organized under a specialized U.S. state statute requiring corporations to serve both shareholder wealth aims and social or environmental objectives. Specifically, the article undertakes to identify and comment on the structure and function of U.S. benefit corporations and the unique litigation…

So I was looking over Snap’s S-1, and I discovered this:

Our amended and restated certificate of incorporation provides that the Court of Chancery of the State of Delaware is the exclusive forum for:

  • any derivative action or proceeding brought on our behalf;
  • any action asserting a breach of fiduciary duty;
  • any action asserting a claim against us arising under the Delaware General Corporation Law, our amended and restated certificate of incorporation, or our amended and restated bylaws; and
  • any action asserting a claim against us that is governed by the internal-affairs doctrine.

Our amended and restated certificate of incorporation further provides that the federal district courts of the United States of America will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act.

The first provisions are a fairly unremarkable (these days) set of forum selection clauses, but in that last point, Snap has gone a step further by attempting to control the forum of federal claims in addition to state claims.  In so doing, Snap is obliquely referring to the ongoing dispute about whether SLUSA requires that Section 11 class actions be litigated in federal court, or whether, instead…

CALL FOR PAPERS
Presidential Powers and Administrative Law

The UMKC Law Review is pleased to announce a call for papers relating to the executive branch’s scope of power and its impact on administrative law and the lives of real people. Selected papers will be published in the Special Topics Symposium Winter 2018 edition of the UMKC Law Review.

This symposium invites proposals for papers exploring legal and administrative issues around the authority vested in the President of the United States. The constitutional limits on executive action, ethics and accountability in government, the separation of powers, the far-reaching economic and social effects of proposed or anticipated administrative reforms, and other considerations relating to the intersection of executive and administrative authority are all topics under the umbrella of this symposium. We also welcome analysis of the interaction between the executive branch and areas of administrative concern and impact, such as the environment, healthcare, consumer protection, banking regulation, and other areas dependent on agency oversight. The recent proliferation of executive orders and new structural rules, such as the one-in, two-out regulatory policy and possible changes for the organization of the Executive Branch, make the use of executive orders another topic of interest.…