September 2018

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Macro photography of water and sunflower oil in different variations
Rodion Kutsaiev, Unsplash

When planning a new blog or evaluating your current blog, measurable goals help you determine if your site is successful. The LexBlog philosophy of blogging skews away from content marketing and toward connection and reputation building. Who you connect with, be it a colleague or client, should be your desired outcome.

By now, I’m sure everyone’s seen the eyebrow-raising SEC complaint filed against Elon Musk for his fateful tweet announcing “funding secured” for his plan to take Tesla private at $420/share – while keeping all the old shareholders.  There are a lot of juicy details here, including an allegation that the $420 price was – as many suspected – a reference to marijuana; he ballparked a 20% premium, which would bring the price to $419, and then rounded up to impress his girlfriend.

Well, as we all know by now, funding was not secure, there was no plan, and – as I previously posted – there was no way the plan was ever going to work in the first place, because you can’t go private while keeping a massive retail shareholder base.

That said, the thing I keep wondering is, if anyone but the SEC had brought this case, would there be a serious question of materiality?

For starters, there has been a private complaint.  A short-seller, apparently injured when Tesla’s price shot up in the wake of Musk’s initial tweet, filed a class action complaint alleging securities fraud.  Now, this case is in the early stages so there’s no…

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Alex, Unsplash

Imagine you’re an estate planning lawyer in Des Moines looking to grow your practice.

The marketing folks at Principal Park, home of the Triple A Des Moines Cubs, call to tell you that you’ll have free use of a luxury box for five of next year’s ball games. Better yet, they tell you they’ll arrange for the food and drink and invite a who’s who in networking for a Des Moines estate lawyer.

When people ask me what they should do to get started on blogging, I rarely talk technology or even blogging. While those are important elements of blogging, they are next steps. Things you do after you decide you want to blog and have found your community and your voice.

Johnny Burris, a whistleblower whose case has drawn national attention, recently filed a complaint in the United States District Court for the District of Arizona.  The complaint alleges that he was wrongfully terminated because he “objected to pushing proprietary J.P. Morgan Private Bank Managed Accounts, Chase Strategic Portfolio Managed Accounts, and proprietary mutual funds into his clients’  portfolios on the grounds that he viewed such ‘bank managed products’ as not always suitable for his retired clients.” 

Burris’s objections may ring familiar.  J.P. Morgan paid about $307 million in fines for steering clients toward proprietary funds. 

The complaint sets out two different causes of action.  The first is under Sarbanes-Oxley, and the second is under Dodd-Frank.  The oddly-drafted Dodd-Frank whistleblower provision has already reached the U.S. Supreme Court once with the court construing it to only apply to whistleblowers that report out to the SEC and not just internally.  Because Burris made a complaint to the SEC, he will not have any issues with that requirement. 

Nizan Packin and I have written about another issue with the Dodd-Frank cause of action.  (Our short 2016 article opens with a discussion of Burris’ whistleblowing to frame the issue.)   Unlike the Sarbanes-Oxley cause…

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Knobs and wires
Steve Harvey, Unsplash

To create a successful blog, you must listen to your audience and online influencers. These resources will help you understand why listening is important and to find the tools that can help you.

I was going to move on to other topics after two recent posts about Nike’s Kaepernick Ad, but I decided I had a little more to say on the topic.  My prior posts, Nike’s Kaepernick Ad Is the Most Business Judgmenty Thing Ever and Delegation of Board Authority: Nike’s Kaepernick Ad Remains the Most Business Judgmenty Thing Ever explain my view that Nike’s decision to run a controversial ad is the essence of the exercise of business judgment.  Some people seem to believe that by merely making a controversial decision, the board should subject to review and required to justify its actions.  I don’t agree. I need more.   

First, I came across a case (an unreported Delaware case) that had language that was simply too good for me to pass up in this context:

The plaintiffs have pleaded no facts to undermine the presumption that the outside directors of the board . . . failed to fully inform itself in deciding how best to proceed . . . . Instead, the complaint essentially states that the plaintiffs would have run things differently. The business judgment rule, however, is not rebutted by Monday morning quarterbacking. In the absence of well

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