July 2021

In the 1990s, newspapers had a problem.  They wanted their articles to be included in electronic databases like LexisNexis, but such databases being a relatively new technology, the newspapers had not bothered to include database republication rights in their agreements with freelance reporters.  Some publishers argued that their existing contracts covered database inclusion, but the Second Circuit wasn’t having it.  See Tasini v. New York Times Co., 206 F.3d 161 (2d Cir. 2000).  After the Supreme Court held that the articles could not be included in databases without the reporters’ permission, news organizations updated their contracts to cover electronic database republication.

Scarlett Johansson and Disney are now embroiled in their own dispute over a contract impacted by new technology.  Johansson’s contract for the Black Widow movie included a fairly standard provision (at least for big name actors) that she be entitled to a cut of the box office, and to ensure that the box office receipts would be worth her while, she extracted a promise that the movie would receive a “wide theatrical release of the Picture i.e., no less than 1,500 screens.”  In the wake of Covid-19, however, Disney chose to simultaneously release the film…

The University of Kansas School of Law invites applications from entry level and junior lateral candidates for two tenure-track, associate professor positions to begin fall 2022.  We will consider candidates in all subject areas, but are particularly interested in the areas of (1) property and (2) business, corporate finance, and transactional law, as well as candidates whose work engages these subjects in dialogue with other areas of law. Qualified candidates who will contribute to the diversity of our law school community, including a diversity of scholarly approaches, are especially encouraged to apply.

 
Applicants must possess a J.D. from an accredited U.S. law school or equivalent degree, and must demonstrate strong scholarly potential and a commitment to excellence in teaching.  The School actively seeks applications from members of groups that are underrepresented in higher education.

Review of applications begins in August and will continue until the positions are filled. Initial interviews will be conducted via Zoom. We will review candidate materials posted in the AALS Faculty Appointments Register (FAR), and also invite applications from candidates not participating in the FAR. Applications must be submitted online:  

and should include a cover letter, a CV/resume, a…

Anthony Rickey and I wrote about hidden conflicts in securities class action litigation and used the State Street case as a key example.  When the special master investigated in that action, discovery revealed an email from Damon Chargois to Labaton, stating:

“We got you ATRS as a client after considerable efforts, political activity, money spent and time dedicated in Arkansas, and Labaton would use ATRS to seek legal counsel appointments in institutional investor fraud and misrepresentation cases. Where Labaton is successful in getting appointed lead counsel and obtains a settlement or judgment award, we split Labaton’s attorney fee award 80/20 period.”

The New York Times reported on the revelations and indicated that the court, client, and class had not been informed of the relationship:

The payment to the lawyer, Damon Chargois, had not been previously disclosed. Mr. Rosen’s investigation unearthed documents showing that Mr. Chargois did no work on the litigation other than help introduce the Arkansas Teacher Retirement System to Labaton roughly a decade ago. In 2011, Labaton filed a lawsuit for the retirement fund that was later consolidated with similar lawsuits filed by a few other law firms.

None of those other law firms, nor Judge Wolf, were

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Presented by the John F. Scarpa Center for Entrepreneurship and Law

 

Friday, September 10, 2021

9:00 a.m.–3:00 p.m.

Virtual Event

 

Click to Register

 

The John F. Scarpa Center for Entrepreneurship and Law will host the second Future Business Law Professors Conference on Friday, September 10. All visiting assistant professors, fellows, researchers, law clerks, practitioners and others who are considering entering the higher education academic teaching market in business law—including business associations, securities regulation, corporate finance and business ethics—are invited to attend. This year’s conference will be virtual.

Participants will learn more about the business law teaching market, receive advice on how to be a successful candidate and meet future colleagues. Attendees will have the opportunity to participate in mock interviews and get a sneak-peak into the hiring process from current business law faculty. Some will be able to present their job talk paper to leaders in the field and receive feedback.

Faculty from University of Colorado Law School, Georgetown University Law Center, George Washington University Law School, University of Michigan Law School, University of Nebraska College of Law, University of Pennsylvania Carey Law School, University of Pittsburgh School of Law, Rutgers Law School, Temple University Beasley School

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Dear BLPB Readers:

Surrey Law School is recruiting a tenure-track or tenure-equivalent position in Financial Law (Lecturer or Senior Lecturer). They have an energetic and highly international faculty, and the University of Surrey campus is ideally situated in the leafy English countryside a mere 25 miles from central London (30 min by train). The School comprises three main research clusters: The Surrey Centre for Law and Philosophy, the Surrey Centre for International and Environmental Law and the Law and Technology Hub. This new position in Financial Law is part of an investment in strengthening our Law & Technology Pathway LLB degree, and our FinTech & Policy MSc programme run with Surrey Business School, among other strategic initiatives. The School is in a period of growth and the hiring committee is interested in considering applications also from US-trained lawyers and legal academics. For more information about the position and to apply, please see link below. (Note the application deadline of September 6th.)

The following comes to us from friend-of-the-BLPB Alicia Plerhoples.

How to Be An Antiracist author Ibram X. Kendi urges individuals to undertake the difficult work to become anti-racist. In Kendi’s view, racism is not a spectator sport. One can either recognize their participation in racist concepts and institutions that benefit some and work to dismantle racism, or one participates in racist concepts and institutions to perpetuate them. As he explains in Stamped from the Beginning, the 582-page academic version of his popular press book, a person can hold both racist and anti-racist views at the same time, under an assimilationist race theory.

As a business law professor, I am concerned with whether a corporation can be anti-racist. If so, what corporate policies, processes, programs, and culture does an anti-racist corporation have? These questions are imperative given America’s reckoning with racism and in my view, the disproportionate power and excessive protections that corporations have consolidated in American law and the economy.

One might quickly jump to my second question without considering the first. Can a corporation be anti-racist? Slavery’s Capitalism authors Sven Beckert and Seth Rockman identify slavery as the key driving force in the development of the American…

Robinhood is gearing up for its IPO, and one of its gimmicks is to allot 20-35% of its newly issued shares to its own customers, who trade on its platform.  This unusual allocation is being billed, in part, as evidence of its commitment to “democratize finance,” and it’s not the first time a company has used its IPO allocations as, essentially, a branding mechanism.

But this New York Times piece also points out that Robinhood is allowing its own employees to trade up to 15% of their shares right away, which is pitched as being of a piece with Robinhood’s nontraditional stock allocations.  And, in fact, Robinhood’s S-1 says:

up to 15% of the shares of our outstanding Class A common stock and securities directly or indirectly convertible into or exchangeable or exercisable for our Class A common stock held, as of the date of this prospectus, by our directors, officers and current and former employees and consultants (other than our founders and our Chief Financial Officer, who are discussed above) …, with such 15% calculated after excluding any shares withheld for taxes associated with IPO-Vesting Time-Based RSUs, may be sold beginning at the commencement of trading

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Professor Martin Edwards (Belmont University College of Law) and I are excited to moderate a discussion group titled, “A Very Online Economy: Meme Trading, Bitcoin, and the Crisis of Trust and Value(s)—How Should the Law Respond,” at the 2022 American Association of Law Schools Annual Meeting. The discussion group is scheduled to take place (virtually) on Friday, January 7, 2022. We welcome responses to the call for participation (here). Here’s the description:

Emergent forces emanating from social and financial technologies are challenging many underlying assumptions about the workings of markets, the nature of firms, and our social relationship with our economic institutions. The 21st century economy and financial architecture are built on faith and trust in centralized institutions. Perhaps it is not surprising that in 2008, a time where that faith and trust waned, a different architecture called “blockchain” emerged. It promised “trustless” exchange, verifiable intermediation, and “decentralization” of value transfer.

In 2021, the financial architecture and its institutions suffered a broadside from socialmedia-fueled “meme” and “expressive” traders. It may not be a coincidence that many of these traders reached adulthood around 2008, when the crisis called into question whether that real money, those real securities, or that…

Last year, Anthony Rickey and I published a paper highlighting potential conflicts of interest that can arise between securities class action plaintiffs, their counsel, and the class.  Our article suggested that courts could discourage troublesome practices by requiring law firms to disclose past findings of misconduct when they apply for lead counsel appointments.  The idea is to make sure that future judges know what happened in past cases so they can protect the class.

Recently, Judge Alsup of the Northern District of California issued this type of order after two of the country’s largest plaintiff-side securities litigation firms hurled allegations of misconduct back and forth.  The fallout from this decision demonstrates a potential shortcoming of mandatory disclosure orders:  they are not self-enforcing.

The Case:  SEB Investment Management AB v. Symantec Corp., et al., No. 3:18-cv-02902-WHA (N.D. Cal.)

Judge Alsup’s April 20, 2021 order briefly summarizes the troublesome facts of a securities class action involving Symantec Corporation.  When SEB Investment Management AB (“SEB”) became lead plaintiff in 2018, the court ordered SEB to interview law firms to serve as class counsel.  SEB selected Bernstein, Litowitz, Berger & Grossman, LLP (“BLBG”), its original counsel, to lead the litigation “even though BLBG…

 Fourth Conference on Law and Macroeconomics, 2021

The role of law as an instrument of macroeconomic policy through the Covid-19 pandemic, including as a means to provide social protection, has opened up new and exciting research opportunities. As we edge towards recovery, what is the role of law in creating a macroeconomy appropriate for a post-pandemic world?

We welcome submissions for an online virtual conference on October 27 and 28, 2021 that will continue to explore connections between law and macroeconomics. Papers may address the role of law, regulation, and institutions in:

  1. Monetary policy, both conventional and unconventional, including how it is impacted by payments systems, e.g., new platforms and technologies, as well as the effects and risks of the unwinding of QE;
  2. Financial regulatory policy, both domestic and international, including its effect on the economy, its role in crisis containment and resolution, access to capital, and other aspects of financial inclusion;
  3. Fiscal policy, especially its role in mitigating the effects and frequency of economic downturns, including the respective roles of federal, state, and local governments. We are particularly interested in papers that explore the combination of expansionary fiscal policy and loose monetary policy;
  4. Moderating recessions with other policy levers,

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