January 2018

After spending a little time with the new tax bill, I couldn’t help but think, “there must be a better way.”  That reminded me of an article from a little while back in the West Virginia Law Review, titled, Legislation’s Culture, by Richard K. Neumann, of Hofstra University – School of Law (PDF). Here’s the abstract:

American statutes can seem like labyrinthine mazes when compared to some countries’ legislation. French codes are admired for their intellectual elegance and clarity. Novelists and poets (Stendhal, Valéry) have considered the Code civil to be literature. Swedish legislation might be based on empirical research into problems the legislation is intended to remedy, and the drafting style, though modern today, is descended from an oral tradition of poetic narrative.

Comparing these legislative cultures with our own reveals that the main problem with American legislation is not too many words. It is too many ideas — a high ratio of concepts per legislative goal. When American, French, and Swedish legislatures address similar problems, the French and Swedes draft using far fewer concepts than Americans do. In both countries, simple solutions are preferred over convoluted ones. The drafters of the Code civil thought the highest

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At The University of Tennessee College of Law, we have a four-credit-hour, four-module course called Representing Enterprises that is one of three capstone course offerings in our Concentration in Business Transactions.  In Representing Enterprises, each course module focuses on a different aspect of transactional business law, often a specific transaction or task.  We try to both ask the enrolled students to apply law that they have learned in other courses (doctrinal and experiential) and also introduce the students to applied practice in areas of law to which they have not or may not yet have been exposed.

I have been teaching the first module over the past few weeks.  We finish up tomorrow.  My module focuses on disclosure regulation.  I have five class meetings, two hours for each meeting, to cover this topic.  Each class engages students with a hypothetical that raises disclosure questions.

The first class focused on general rule identification regarding the applicable laws governing disclosure in connection with the purchase of limited liability membership interests.  Specifically, our client had bought out his fellow members of a member-managed Tennessee limited liability company at a nominal price and without giving them full information about a reality television opportunity our…

Indiana University legal studies professor Abbey Stemler sent along this description of an article she co-wrote with Harvard Business School Professor Ben Edelman. They recently posted the article to SSRN and would love any feedback you may have, in the comments or via e-mail. 

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Perhaps the most beloved twenty-six words in tech law, Section 230 of the Communications Decency Act of 1996 has been heralded as a “masterpiece” and the “law that gave us the modern Internet.” While it was originally designed to protect online companies from defamation claims for third-party speech (think message boards and AOL chat rooms), over the years Section 230 has been used to protect online firms from all kinds of regulation—including civil rights and consumer protection laws.  As a result, it is now the first line of defense used by online marketplaces to shield them from state and local regulation.

In our article recently posted to SSRN, From the Digital to the Physical: Federal Limitations on Regulating Online Marketplaces, we challenge existing interpretations of Section 230 and highlight how it and other federal laws interfere with state and local government’s ability to regulate online marketplaces—particularly those that dramatically shape…

The Delaware Supreme Court finally issued its decision in Cal. State Teachers Ret. Sys. v. Alvarez, and it appears we don’t have one neat trick for dealing with races to the courthouse in derivative litigation after all.

As I’ve discussed in previous blog posts, Delaware has a substance and procedure problem.  Namely, it uses its own court procedures as supplemental mechanisms to substantively police the behavior of corporate actors, but those procedures don’t apply in non-Delaware forums.  That leaves Delaware vulnerable to being undercut by other states – and encourages an unhealthy race to the courthouse in other jurisdictions. 

As I explained before, in the context of derivative cases, “Delaware’s recommendation that derivative plaintiffs seek books and records before proceeding with their claims simply invites faster filers to sue in other jurisdictions – and invites defendants to seek dismissals against the weakest plaintiffs, which will then act as res judicata against the stronger/more careful ones.” 

That’s what happened in Alvarez.  While the Delaware plaintiffs spent years litigating a books and records request, defendants won a dismissal for failure to plead demand futility against a competing plaintiff group in Arkansas.  The Chancery court then held that the…

On Wednesday, I spoke with Kimberly Adams, a reporter for NPR Marketplace regarding CSX’s decision to require its CEO to disclose health information to the board. I don’t have a link to post, sorry. As you may know, CSX suffered a significant stock drop in December when its former CEO died shortly after taking a medical leave of absence and after refusing to disclose information about his health issues. CSX has chosen the drastic step of requiring an annual CEO physical in response to a shareholder proposal filed on December 21st stating, “RESOLVED, that the CEO of the CSX Corporation will be required to have an annual comprehensive physical, performed by a medical provider chosen by the CSX Board, and that results of said physical(s) will be provided to the Board of Directors of the CSX Corporation by the medical provider.” Adams asked my thoughts about a Wall Street Journal article that outlined the company’s plans. 

I’m not aware of any other company that asks a CEO to provide the results of an annual physical to the board. As I informed Adams, I hope the board has good counsel to avoid running afoul of the Americans with Disabilities Act, HIPAA, the Genetic Information…

If you write about regulated industries or securities and banking topics, it can be challenging to keep track of developments in the regulatory space.  There is a startup that I’ve found useful for seeing new developments. It’s called  Compliance.ai.  Mostly, I now use it to track of news from FINRA and the SEC.  They have been reaching out to law schools and offering training and access to students and faculty.  They also allow users to track news from the CFPB, DOJ, Treasury, NYSE, DOL, and a bunch of other regulators.

I haven’t yet seen anything on it that I could not find elsewhere.  Much of the material can be found in the federal register, on the websites of self-regulatory organizations, or on the SEC’s website.  Instead of constantly canvasing all these websites, Compliance.ai allows users to put together a feed from the regulators they want to follow.  It’s also made it easier for me to see things like enforcement actions as they come out.  For example, two days ago FINRA published Letter of Acceptance, Waiver, and Consent NO. 2016051672301.  This fascinating AWC details how Paul Martin Betenbaugh consented to a three month suspension for:

In September and October 2015, on three

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        As many of this blog’s readers know, RUPA § 404 (1997) “cabins in” the duty of loyalty by stating that “[a] partner’s duty of loyalty to the partnership and the other partners is limited to the following.” The situations then described all involve harm to the partnership itself—not harm to an individual partner.  Setting forth a duty that is owed to a partner, but that is defined solely by reference to harm to the partnership, is peculiar.  https://www.businesslawprofessors.com/business_law/2016/06/is-cardozo-wrong-of-partner-to-partner-fiduciary-duties-/

        In the 2013 version of RUPA, this problem was squarely addressed.  RUPA § 409(b) (2013) eliminates the “limited to” language and instead states that the duty of loyalty simply “includes” the standard partnership-harm situations. The Official Comment explains:

This section originated as UPA (1997) § 404. The 2011 and 2013 Harmonization amendments made one major substantive change; they “un-cabined” fiduciary duty. UPA (1997) § 404 had deviated substantially from UPA (1914) by purporting to codify all fiduciary duties owed by partners. This approach had a number of problems. Most notably, the exhaustive list of fiduciary duties left no room for the fiduciary duty owed by partners to each other – i.e., “the punctilio of an honor the most sensitive”). Meinhard v.