February 2019

Da Lin recently posted Beyond Beholden, a paper tackling a new issue in director independence.  Although most corporate law focuses on whether there is a stick a controlling shareholder can use to punish directors if they fail to follow orders, Lin looked to see if she could see any carrots a controlling shareholder could use to lead a director around.  This bit from the article captures it nicely:

Corporate governance scholarship focuses extensively on the incentives generated by the controlling shareholder’s ability to retaliate against insubordinate directors. What the literature overlooks, however, is that directors may also be influenced by the prospect of reward. What happens when the controlling shareholder is not angered but instead pleased?

The result, it turns out, is often new opportunities or future benefits from the controlling shareholder to the favored directors. Controlling shareholders can direct their resources or those owned by the controlled company in ways that reward friends.

Lin’s article looks at how controlling shareholders may reward ostensibly independent directors by appointing them to other lucrative board positions under their control.  A director who approves a sale of the company may soon find herself out of a six-figure job when the company gets…

Boston University School of Law, in conjunction with the University of Illinois College of Law, UCLA School of Law, and the University of Richmond School of Law, invites submissions for the Seventh Annual Workshop for Corporate & Securities Litigation. This workshop will be held on Friday, September 27 and Saturday, September 28, 2019 at Boston University School of Law.

Overview

This annual workshop brings together scholars focused on corporate and securities litigation to present their scholarly works. Papers addressing any aspect of corporate and securities litigation or enforcement are eligible, including securities class actions, fiduciary duty litigation, and comparative approaches. We welcome scholars working in a variety of methodologies, as well as both completed papers and works-in-progress.

Authors whose papers are selected will be invited to present their work at a workshop hosted by Boston University.  Hotel costs will be covered.  Participants will pay for their own travel and other expenses.

Submissions

If you are interested in participating, please send the paper you would like to present, or an abstract of the paper, to corpandseclitigation@gmail.com by Friday, May 24, 2019. Please include your name, current position, and contact information in the e-mail accompanying the submission.  Authors of accepted papers will…

Westlaw recently posted an interesting Massachusetts case at the intersection of criminal law and business law.  Massachusetts (the Commonwealth) sought to commit a defendant as a sexually dangerous person. Commonwealth v. Baxter, 94 Mass. App. Ct. 587, 116 N.E.3d 54, 56 (2018). The defendant was (at the time) an inmate because of a probation violation related to offenses of rape of a child and other crimes.  The Commonwealth retained Mark Schaefer, Ph.D., for an expert opinion, and Dr. Schaefer concluded that the defendant was, under state law, a sexually dangerous person. The hearing judge found probable cause to think the defendant was a sexually dangerous person and had him temporarily committed for examination by two qualified examiners, as required by law. Dr. Joss determined that the defendant was sexually dangerous, and Dr. Rouse Weir determined he was not.

Here’s where the business law part comes in: 

After the reports of the qualified examiners were submitted to the court, the defendant moved to exclude Dr. Joss from providing evidence at trial, or in the alternative, to appoint a new qualified examiner to evaluate the defendant. As grounds therefor, the defendant alleged that Dr. Joss and Dr. Schaefer were both among

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A bunch of us sensed that it was coming.  I raised the question in an October 8, 2018 post here.  Now, it has actually happened.

Tesla Chief Executive Officer Elon Musk has finally caught the negative attention of the U.S. Securities and Exchange Commission (SEC) with yet another of his reckless tweets.  The WaPo reported earlier tonight that “[t]he Securities and Exchange Commission . . . asked a federal judge to hold Tesla CEO Elon Musk in contempt for violating the terms of a recent settlement agreement . . . .”  That settlement agreement, as readers will recall, relates to SEC allegations that Musk lied to investors when he posted on Twitter that he had secured the funding needed to take Tesla private.  The settlement agreement provides for the review and pre-approval of Musk’s market-moving public statements.

Ann Lipton and I, as BLPB’s resident fraud mongers, have been following the Musk affaire de Twitter for a number of months now.  (See, e.g., here, here, and here.)  Based on our prior posts, it seems clear the world was destined for this moment–a moment in which the SEC not only catches Musk in a tweeted misstatement but also…

Suffolk

BUSINESS LAW & ETHICS FACULTY POSITION

FALL 2019

SAWYER BUSINESS SCHOOL

SUFFOLK UNIVERSITY

BOSTON, MASSACHUSETTS 02108

POSITION:  Business Law & Ethics Faculty position at the Assistant Professor rank.  The anticipated start date is Fall 2019.  This is for a tenure-track position.  Applications will be accepted until the position is filled.

QUALIFICATIONS: 

  • J.D. from and ABA-accredited law school.
  • B.A or other relevant graduate business degree from an AACSB-accredited school.
  • A relevant Ph.D. from an AACSB-accredited school may be substituted for the graduate degree requirement.
  • Potential for excellent teaching and research.
  • Demonstrated
  • Candidates with industry experience are encouraged to apply.
  • Candidates with an expertise in corporate compliance, intellectual property, or data privacy are encouraged to apply.

JOB RESPONSIBILITY:  Suffolk University emphasizes both teaching and research. The standard teaching load is 5 semester courses per academic year. Candidates must have a commitment to research which leads to quality refereed publications.  BLE faculty conduct research in various business law and ethics journals which may include both legal and social science outlets.

THE BUSINESS SCHOOL:  The Sawyer Business School offers undergraduate and graduate degrees, including BSBA, MBA and other graduate programs along with several joint degrees  The Sawyer Business School has…

In today’s post, I address the second of the two questions at the heart of Wharton Professor Richard Shell’s Springboard: Launching Your Personal Search for SUCCESS: How will I achieve my idea of success (see last week’s post for question 1)?  

Shell offers 5 Steps covered in Chapters 5-9 (if you’ve yet to formulate your idea of success, jumpstart with his Six Lives Exercise)

Step #5: Look Inside to Find Your Unique Combination of Capabilities

I love the quoted Danish folk saying that opens this chapter: “You must bake with the flour you have.”  Given my affinity for cooking, I was intrigued by its opening story about the circuitous life path of the famous French chef Julia Child (want details? read the book!).  Using the story of Child and others, Shell steers the reader through a reflection upon one’s achievement skills, backyard diamonds, and personality strengths through his SAME assessment exercise. 

I think the genius of this chapter is that it seems to suggest that just as we all have a unique combination of DNA, we all have a unique mix of gifts, talents, personality strengths etc. and that it’s in understanding, nurturing, and harnessing this…

I had a great time reading Guhan Subramanian & Annie Zhao’s new paper, Go-Shops Revisited.  It follows up on Prof. Subramanian’s earlier study of their effects, Go-Shops vs. No-Shops in Private Equity Deals: Evidence & Implications, 63 Bus. Law. 729 (2008).  In the original study, Prof. Subramanian found that go-shops generally had beneficial effects for target companies: bidders would pay a little bit more for the privilege of something like exclusivity in the original negotiations, and not infrequently, a superior proposal would materialize during the go-shop period.  But in the new paper, the authors conclude that go-shops are no longer an effective tool for price discovery, in large part because changes in their design make it much less likely that a superior proposal will emerge.

There are a lot of interesting observations in the new paper, with the basic point being that deal attorneys – aware that Delaware courts focus a lot on things like the size of termination fees – instead manipulate aspects of the go-shop that tend to escape judicial notice, and that collectively function to make go-shops less effective.  One particular point that stood out: The authors note that PE firms have changed how they…

Tulane Law School invites applications for three positions: a Forrester Fellowship, a visiting assistant professorship, and a Yongxiong Fellowship.

All three positions are designed for promising scholars who plan to apply for tenure-track law school positions. All three positions are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support, both formal and informal, including faculty mentors, a professional travel budget, and opportunities to present works-in-progress in various settings.

Tulane’s Forrester Fellows teach legal writing in the first-year curriculum to two sections of 25 to 30 first-year law students in a program coordinated by the Director of Legal Writing. Fellows are appointed to a one-year term with the possibility of a single one-year renewal. Applicants must have a JD from an ABA-accredited law school, outstanding academic credentials, and significant law-related practice and/or clerkship experience. Candidates should apply through Interfolio, at http://apply.interfolio.com/59403. If you have any questions, please contact Erin Donelon at edonelon@tulane.edu.

Tulane’s visiting assistant professor (VAP), a two-year position, is supported by the Murphy Institute at Tulane (http://murphy.tulane.edu), an interdisciplinary unit specializing in political economy and ethics that…

Aspiring business law professors may want to apply for the fellowship at the Rock Center for Corporate Governance at Stanford Law School.  The posting describes the position as follows:

The Fellow will be expected to conduct independent research leading to major academic journal or law review publication, and will receive support from faculty in developing and executing those projects. The Fellow will also engage in a broad mix of research and analysis under the supervision of Stanford Law School, Rock Center, and other affiliated faculty. Potential projects include research in the areas of: executive compensation, proxy voting, rating agencies, securities and corporate litigation, investment vehicle structures, Environmental Social and Governance (ESG) Issues, diversity on corporate boards, the Foreign Corrupt Practices Act, and the financial regulatory system. The Fellow will also develop law school and/or Rock Center course materials and educational materials for directors of publicly traded corporations, and help support research conferences and seminars. Fellows are encouraged to attend weekly faculty lunch seminars and participate in activities with the other fellows at Stanford Law School to learn more about their scholarship and academic life. The Fellow will report to the Managing Director of the Rock Center, but will work under

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