July 2020

BLPB Readers, below is an announcement about an open faculty position at the University of Connecticut School of Business:
 
Assistant, Associate or Full Professor of Business & Human Rights at the University of Connecticut
The School of Business at the University of Connecticut invites applications for a tenure-track or tenured position at the rank of Assistant Professor, Associate Professor, or Professor of Business and Human Rights to begin in Fall 2021.

This faculty position will focus on the intersection of business and human rights broadly understood, including, but not limited to, environmental and social sustainability, corporate social responsibility, social innovation, and social entrepreneurship. The position will reside in the department/discipline of the successful candidate’s research and teaching domains, including Accounting, Finance, Management, Marketing/Business Law, and Operations and Information Management. The successful candidate will collaborate on the development and implementation of research, curricular, and public engagement activities with faculty affiliated with the Human Rights Institute and the Business and Human Rights Initiative at the University of Connecticut. See the following links for more information about the Human Rights Institute (https://humanrights.uconn.edu) and the Business and Human Rights Initiative (https://businessandhumanrights.uconn.edu). 

Preference will be given to applications received by

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On June 29, 2020, the Department of Labor reinstated it’s “five-part test” for determining what constitutes investment advice under the Employee Retirement Income Security Act (ERISA).  The test first went into effect in 1975 and remained the governing standard as financial products and the investment advice industry changed significantly.  In 2016, as part of its fiduciary rulemaking, Labor embraced a broader test which was later invalidated by the Fifth Circuit.

The reinstated five-part test governs when someone giving investment advice for a fee will be classified as a fiduciary under ERISA and subject to its obligations. To be subject to ERISA, the person must:

  • render advice with respect to the plan [or IRA] as to the value of securities or other property, or make recommendations as to the advisability of investing in, purchasing, or selling securities or other property;
  • on a regular basis;
  • pursuant to a mutual agreement, arrangement, or understanding with the plan, plan fiduciary or IRA owner, that,
  • the advice will serve as a primary basis for investment decisions with respect to plan or IRA assets; and that
  • the advice will be individualized based on the particular needs of the plan or IRA.

The five-part test should…

So, I knew about TEDx and TED Talks, but I just learned about TED-Ed today in viewing Professors George Siedel & Christine Ladwig’s “Ethical Dilemma: The Burger Murders” (here).  If you’re planning to incorporate an ethics module into your business law courses this year, including their video and accompanying teaching materials could be a great, entertaining addition to your class that I think students would love.  Along with their fun, short video, Siedel and Ladwig have provided teaching materials (here) that include multiple choice and open ended questions; a “dig deeper” piece; and, a guided discussion section.  They posted only yesterday, and have already had 152,224 views and 744 comments!  Check it out!  And if you didn’t see my prior post on Siedel’s negotiation materials, check that out too (here)!      

As I have been working on a few projects involving law firms and legal education in the pandemic, I have come across a number of fun business law items involving mergers and acquisitions.  The news reports I have noted cover regulatory changes, case law, and planning/drafting.  Both small and large transactions are receiving attention.  I shared these with Business Law Section colleagues in the Tennessee Bar Association about a week ago.  I got some positive response.  So, I am sharing them here, too.  Feel free to post what you are seeing in this regard in the comments.

In the small business arena, a recent American Bar Association (ABA) Business Law Today article focuses in on clawback provisions in equity sale agreements.  These provisions, the article avers, “enable the former owner to participate in the consideration received in a subsequent sale of the business by the remaining owner or owners.” The article lists a number of key things to consider in drafting these kinds of provisions.

Another ABA Business Law Today piece notes the trend toward glorifying deal price in valuation determinations, as evidenced in recent Delaware court opinions on appraisal rights.  The article cites to three leading cases, two in…

Herbert Hovenkamp has posted “Antitrust and Platform Monopoly” on SSRN.  The abstract is below.  I was particularly struck by: “The history of antitrust law is replete with firms that are organized as single entities under corporate law, but that function as competitors and [are] treated that way by antitrust law.”

This article first considers an often-discussed question about large internet platforms that deal directly with consumers: Are they “winner take all,” or natural monopoly, firms? That question is complex and does not produce the same answer for every platform. The closer one looks at digital platforms they less they seem to be winner-take-all. As a result, we can assume that competition can be made to work in most of them.

Second, assuming that an antitrust violation is found, what should be the appropriate remedy? Breaking up large firms subject to extensive scale economies or positive network effects is generally thought to be unwise. The resulting entities will be unable to behave competitively. Inevitably, they will either merge or collude, or else one will drive the others out of business. Even if a platform is not a natural monopoly but does experience significant economies of scale in production or…

Jeffrey Lipshaw has posted “The False Dichotomy of Corporate Governance Platitudes” on SSRN.  I have set forth the abstract below.  I had the pleasure of reading an early draft, and I highly recommend the paper.  Among other things, Jeff brings a level of practical experience to the topic (“more than a quarter century as a real world corporate lawyer and senior officer of a public corporation”) that makes his views a must-read.  Having said that, my own view is that the “shareholder vs. stakeholder” debate is meaningful even if it only really matters in “idiosyncratic cases in which corporate leaders have managed to be either bullheaded or ill-advised.”

In 2019, the Business Roundtable amended its principles of corporate governance, deleting references to the primary purpose of the corporation being to serve the shareholders. In doing so, it renewed the “shareholder vs. stakeholder” debate among academic theorists and politicians. The thesis here is that the zero-sum positions of the contending positions are a false dichotomy, failing to capture the complexity of the corporate management game as it is actually played. Sweeping and absolutist statements of the primary purpose of the corporation are based on arid thought experiments and idiosyncratic…

I’m finding the district court’s decision in Marcu v. Cheetah Mobile, 2020 WL 4016645 (S.D.N.Y. July 16, 2020) fascinating, not because it’s wrong on the law – it isn’t, in my view, at least with respect to its falsity determination – but because it illustrates the artificiality of a lot of securities fraud litigation.

Cheetah Mobile is a Chinese company that develops apps that used to be downloadable from Google Play.  It went public on the NYSE in 2014, and quickly developed a reputation for poor quality products that used intrusive advertisements and interfered with the functioning of users’ phones.  In 2017, a short-seller accused it of fabricating revenue and clicks, and in 2018, Buzzfeed exposed that 7 of its 18 apps were engaged in a type of clickfraud scheme that improperly credited Cheetah Mobile with referrals to other apps.  Google removed the offending apps, and earlier this year, apparently fed up with Cheetah’s behavior, booted it from its platform entirely.

A putative class of Cheetah investors brought Section 10(b) claims shortly after the Buzzfeed expose, alleging that Cheetah misled investors about its business practices.  The district court dismissed the case in large part because the plaintiff…

Yesterday, I had the pleasure of moderating a panel of Black entrepreneurs sponsored by the Miami Finance Forum, a group of finance, investment management, banking, capital markets, private equity, venture capital, legal, accounting and related professionals. When every company and law firm was posting about Black Lives Matter and donating to various causes, my colleague Richard Montes de Oca, an MFF board member, decided that he wanted to do more than post a generic message. He and the MFF board decided to launch a series of webinars on Black entrepreneurship. The first panel featured Jamarlin Martin, who runs a digital media company and has a podcast; Brian Brackeen, GP of Lightship Capital and founder of Kairos, a facial recognition tech company;  and Raoul Thomas, CEO of CGI Merchant Group, a real estate private equity group.

These panelists aren’t the typical Black entrepreneurs. Here are some sobering statistics:

  • Black-owned business get their initial financing through 44% cash; 15% family and friends; 9% line of credit; 7% unsecured loans; and 3% SBA loans;
  • Between February and April 2020, 41% of Black-owned businesses, 33% of Latinx businesses, and 26% of Asian-owned businesses closed while 17% of White-owned business closed;
  • As of 2019,

…

I wanted to share with BLPB readers that two of my articles that I’ve mentioned in previous posts (here and here) have now been published.  I’ve posted them to SSRN.  Comments welcome!

An abstract for Ethics of Legal Astuteness: Barring Class Actions Through Arbitration Clauses, written with Daniel T. Ostas and published in the Southern California Interdisciplinary Law Journal is below, and the article is here.

Recent Supreme Court cases empower firms to effectively bar class
action lawsuits through mandatory arbitration clauses included in
consumer adhesion and employment contracts. This article reviews
these legal changes and argues for economic self-restraint among
both corporate executives and corporate lawyers who advise them.
Arbitration has many virtues as it promises to reduce transaction costs
and to streamline economic exchange. Yet, the ethics of implementing
a legal strategy often requires self-restraint when one is in a position
of power, and always requires respect for due process when issues of
human health, safety, and dignity are in play.

An abstract for Banking on the Cloud, written with David Fratto and Lee Reiners, and published in Transactions: The Tennessee Journal of Business Law is below, and the article is here.…

One of my Westlaw alerts contained a link to a recently published article I thought BLPB readers might find of interest.  Here is the abstract:

The reigning antitrust paradigm has turned the notion of competition into a talisman, even as antitrust law in reality has functioned as a sorting mechanism to elevate one species of economic coordination and undermine others. Thus, the ideal state idea of competition and its companion, allocative efficiency, have been deployed to attack disfavored forms of economic coordination, both within antitrust and beyond. These include horizontal coordination beyond firm boundaries, democratic market coordination, and labor unions. Meanwhile, a very specific exception to the competitive order has been written into the law for one type of coordination, and one type only: that embodied by the traditionally organized, top-down business firm.

This Article traces the appearance of this legal preference and reveals its logical content. It also explains why antitrust’s firm exemption is a specific policy choice that cannot be derived from corporate law, contracts, or property. Indeed, because antitrust has effectively established a state monopoly on the allocation of coordination rights, we ought to view coordination rights as a public resource, to be allocated and regulated in…