July 2019

University of Georgia, Terry College of Business Assistant or Associate Professor of Legal Studies Department of ILSRE 

The Department of Insurance, Legal Studies and Real Estate in the Terry College of Business at The University of Georgia invites applications for a full-time tenure-track or tenured faculty position of Legal Studies at the assistant or associate professor level, beginning Fall 2020. 

Candidates must hold a juris doctorate or equivalent degree. For appointment at the assistant professor rank, strong communication skills and demonstrated potential for excellent teaching and high quality research is preferred. For appointment as an associate professor, a research record commensurate with rank and demonstrated excellence in teaching legal studies at the graduate and/or undergraduate level also are required. For information regarding the requirements for each faculty rank, please see the University of Georgia Guidelines for Appointment, Promotion & Tenure (https://provost.uga.edu/_resources/documents/UGA_Guidelines_for_APT_4_2017_online.pdf) and the Promotion & Tenure guidelines for the Terry College of Business (https://provost.uga.edu/_resources/documents/Business_2015.pdf). To be eligible for tenure on appointment, candidates must be appointed as an associate professor, have been tenured at a prior institution, and bring a demonstrably national reputation to the institution. Candidates must be approved for tenure upon appointment before hire. 

Participation …

I made a similar post on social media last night, but with the first bar exam of my time as a law school dean beginning this morning, I thought I post those thoughts here.  To this taking this bar exam (and any future bar exam): 

You have worked hard, now is the time for you to show what you know. I wish you success. As you get ready to sit for the exam, your preparation is done. But there are still things you can do to improve your odds. Here’s what I ask you to do when you take the #BarExam:

*Be thorough.* Answer every question, written and multiple choice. Leave nothing blank. Give yourself a chance.

*Be focused.* Pay attention to time. Don’t spend twenty-five minutes on one multiple choice question or fail to get to an essay. Spend no more than your allotted time for each question, give an answer, and move on. Come back if you have time after everything else is answered.

*Be relentless.* If you make a mistake, do your best to work around it. If you don’t know something, give it your best guess and move on. Don’t give up. Don’t

…

For last year’s Business Law Prof Blog symposium at UT Law, I spoke on issues relating to the representation of business firms classified or classifiable as social enterprises.  Last September, I wrote a bit about my presentation here.  The resulting essay, Lawyering for Social Enterprise, was recently posted to SSRN.  The SSRN abstract follows.

Social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Moreover, the law governing social enterprises also is unclear and unpredictable in respects. This essay identifies two principal areas of uncertainty and demonstrates their capacity to generate lawyering challenges and related transaction costs around both entity formation and ongoing internal governance questions in social enterprises. Core to the professionalism issues are the professional responsibilities implicated in an attorney’s representation of social enterprise businesses.

To illuminate legal and professional responsibility issues relevant to representing social enterprises, this essay proceeds in four parts.

When I first met co-blogger Haskell Murray at SEALSB, we talked about running.  Last month, he shared stories of inspirational runners embodying toughness, self-discipline, humility, and perseverance.  I loved his post.  Yesterday at a family gathering, my sister ribbed me for telling everyone and anyone who would listen about one of the most inspirational books I’ve ever read: Running for My Life: One Lost Boy’s Journey from the Killing Fields of Sudan to the Olympic Games.  While running this morning with a friend, I found myself proving her point.  And when I saw that three days ago, Another chapter in the amazing life story of the Bowerman Track Club’s Lopez Lomong had been written, I decided it was my turn to share with BLPB readers about one of the runners who most inspires me.

As a six-year-old, now two-time U.S. Olympian Lopez Lomong was taken from his mother’s arms by soldiers during a church service in Sudan.  After several weeks, he and three older boys he calls his “angels” escaped from a rebel prison camp and ran towards what they thought was their village, Kimotong.  Instead, they were running towards Kenya, where they encountered border guards who…

This just in from Ellen Yee at Drake Law School:

POSITION ANNOUNCEMENT – DIRECTOR OF THE ENTREPRENEURIAL/TRANSACTIONAL LAW CLINIC AND ASSISTANT/ASSOCIATE/PROFESSOR OF LAW

DRAKE UNIVERSITY LAW SCHOOL invites applications for the position of Director of the Entrepreneurial/Transactional Law Clinic. The position may begin in either the Spring 2020 or Fall 2020 semester and will be a twelve-month position. The directorship will be annual or long-term contract depending on the candidate’s qualifications and preferences. Duties will include supervising and assessing Clinic students representing nonprofit organizations and emerging entrepreneurs.   The Clinic primarily focuses on assisting startup businesses and nonprofits in underserved communities in Polk County, Iowa that are not able to afford retained counsel.   In addition, graduate students and other researchers at Iowa State University provide another source of Clinical transactional cases, many of which include advanced issues involving tech transfers, capital structures, and software licensing. The Director will have the opportunity to build on the success of the existing clinic, which serves a vibrant, diverse community of innovators.  In addition, there may be opportunities to teach doctrinal and experiential-learning courses depending on the law school’s curricular needs.

Candidates must possess a J.D. or comparable law degree and be admitted to, or…

I’m intrigued by this unusual Section 11 decision out of the Third Circuit, Obasi Investment LTD v. Tibet Pharmaceuticals, Inc, 2019 WL 3294888 (3d Cir. 2019).   A company called Tibet held an IPO, but the registration statement failed to identify financial troubles at its operating subsidiary.  Eventually the subsidiary’s assets were seized, Tibet’s stock price plunged, and trading was halted.

A class of plaintiffs brought a Section 11 claim against, you know, everyone they could get their hands on, including two individual defendants: Hayden Zou and L. McCarthy Downs.  Zou was a Tibet shareholder who had come up with the idea for an IPO in the first place, and approached Downs, who was a managing director for an investment bank called Anderson & Strudwick (“A&S”).  A&S ended up underwriting the offering, and for reasons that are not explained, A&S agreed with Tibet that after the IPO, two A&S designees would serve as nonvoting Board observers for the foreseeable future.  Those designees were Zou and Downs, and the registration statement explained that even without votes “they may nevertheless significantly influence the outcome of matters submitted to the Board of Directors for approval.”

When the plaintiffs sued, they argued that Zou and Downs were proper Section 11 defendants, because that statute imposes liability on “every person who, with his consent, is named in the registration statement as being or about to become a director, person performing similar functions, or partner.” 15 U.S.C. §77k(a)(3). 

The Third Circuit, in a 2-1 split, held that Zou and Downs were not named in the registration statement as performing functions similar to those of directors.

And honestly this is sort of a stream of consciousness about the decision, which got very very long, so behind a cut it goes:

[More under the jump]

I’m at the tail end of teaching my summer transactional lawyering course. Throughout the semester, I’ve focused my students on the importance of representations, warranties, covenants, conditions, materiality, and knowledge qualifiers. Today I came across an article from Practical Law Company that discussed the use of #MeToo representations in mergers and acquisitions agreements, and I plan to use it as a teaching tool next semester. According to the article, which is behind a firewall so I can’t link to it, thirty-nine public merger agreements this year have had such clauses. This doesn’t surprise me. Last year I spoke on a webinar regarding #MeToo and touched on the the corporate governance implications and the rise of these so-called “Harvey Weinstein” clauses. 

Generally, according to Practical Law Company, target companies in these agreements represent that: 1) no allegations of sexual harassment or sexual misconduct have been made against a group or class of employees at certain seniority levels; 2) no allegations have been made against  independent contractors; and 3) the company has not entered into any settlement agreements related to these kinds of allegations. The target would list exceptions on a disclosure schedule, presumably redacting the name of the accuser to preserve…

The AALS Employee Benefits and Executive Compensation Section has a call for papers touching on investment advice and retirement savings.  There is so much going on on this front with the DOL getting ready to put its own gutted revamped fiduciary rule out, the new SEC Regulation Best Interest, and so many other things happening.  Plus, with over 10,000 Boomers turning 65 each day, these issues will only get more and more attention in the years ahead.

 

Call for Papers

Section on Employee Benefits & Executive Compensation

2020 AALS Annual Meeting

January 2-6, 2020 – Washington, D.C.

 

The AALS Section on Employee Benefits and Executive Compensation is pleased to announce a Call for Papers for the section panel for the 2020 AALS Annual Meeting.  The Employee Benefits and Executive Compensation section panel is scheduled from 3:30-5:15 p.m., January 2, 2020.  The panel is graciously co-sponsored by the Sections on Aging and the Law, Employment Discrimination, Labor Relations and Employment Law, and Poverty Law.

The topic for this year’s Employee Benefits and Executive Compensation panel is:

The Road to Wellbeing: Navigating the Potholes to Lifetime Financial Security

Panel Description: Although traditional employer-provided retirement and health…

In 2010, an Illinois court reviewed Delaware business law making the following observations:

With respect to a limited liability corporation, Delaware law states that “[u]nless otherwise provided in a limited liability company agreement, the management of a limited liability company shall be vested in its members….” 6 Del.C. § 18–402. Thus, pursuant to Delaware law, directors are generally provided with authority for managing the corporation and members are generally provided with authority for managing the limited liability company. The bankruptcy court therefore properly found that a member of a LLC would be an analogous position to a director of a corporation under Delaware law.

Longview Aluminum, L.L.C. v. Brandt, 431 B.R. 193, 197 (N.D. Ill. 2010), aff’d sub nom. In re Longview Aluminum, L.L.C., 657 F.3d 507 (7th Cir. 2011).

Well, initially, it must be noted that an LLC is not a corporation at all.  As the quoted Delaware law observes, it is a “limited liability company.” Corporations and LLCs are distinct entities. 

I’ll also take issue with adopting the bankruptcy court’s finding “that a member of an LLC would be an analogous position to a director of a corporation under Delaware law.”  I will concede…