April 2022

Recently, I had the pleasure of attending “Avoiding Fraud in the ERA of NIL and Student Athletes,” the inaugural event of the Wilkinson Family Speaker Series at the University of Oklahoma College of Law.  I learned so much and had a chance to meet several of the incredible speakers!  I wanted to share with BLPB readers a summary from Laura Palk, the Assistant Dean of External Affairs, so that those interested in these topics will be on the lookout for future events in this series. 

“OU Law Dean Katheleen Guzman in collaboration with VP for Intercollegiate Athletics, Joe Castiglione, hosted a two-day discussion regarding investor fraud and the student athlete in light of the new name image likeness rules, starting with a fireside chat with former NFL player, Leonard Davis, and his attorney, Graig Alvarez. They were joined by moderator, Lou Straney, to share their story of how athletes are frequently targeted by trusted friends and advisors and how to avoid becoming a target. The next day, Professor Megan Shaner, along with national experts Jeff Abrams, Lisa Braganca, Robert Cockburn, Richard Frankowski, Professor Nicole Iannarone, Jason Leonard, Robin Ringo and Professor Andrew Tuch, presented a symposium educating the OU community and alumni about various types of investment fraud, how to identify…

It’s been one week since I announced and started posting in this virtual symposium on the NextGen Bar Exam. Thanks to Josh, Ben, and John for joining me in commenting on the proposed content scope outline relating to Business Associations and Relationships.  You can find their posts here, here, and here, respectively. 

We have raised issues about terminology.  And there are a few areas that are lacking in clarity or specificity.  In addition, two important overarching points have emerged to date in our posts.  One is that it is important to indicate the source of the law being tested, since the default rules operative in various areas of LLC and corporate law are not the same in the dominant national statutory frameworks.  (I offer another example of how this may matter in the discussion of corporate director and officer fiduciary duties, below.)  The other is that the default rules in business associations law tell only part of the story.   Constitutional issues, authorized private ordering, and decisional law that both supplements and interprets state legislative enactments can all play roles.

In this post, I offer a few more points that illustrate or add to these observations.

Partnership Nomenclature…

The following symposium post comes to us from John Rice at Duquesne Law.

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I’m pleased to add my voice among those commenting as part of this virtual symposium on the recently-released Content Scope Outline for the “Business Associations & Relationships” for the NextGen Bar Exam. Despite my general skepticism of the efficacy of any bar examination, I tend to view the draft outlines as an improvement above the current exam outline. I join with my colleagues Joan, Joshua, and Benjamin in stressing how imperative it is that the NCBE specify the specific sources of law from which these topics are drawn.

In terms of substance, I favor separating LLCs into their own category rather than merely being a sub-set of corporation law. Additionally, the business litigator in me feels compelled to note that the draft outline’s description of “Shareholder and member litigation: direct and derivative litigation” is underdeveloped. I want my students to recognize litigation as a form of shareholder control over the corporation and to evaluate the standing prerequisites and demand requirement. Likewise, I would prefer more attention be paid to the specific remedies available in business disputes, including declaratory judgment, injunctive relief, and…

The Northwestern Pritzker School of Law invites applications for three full-time faculty positions in its Master of Science in Law program, with an expected start date of July 1, 2022. Candidates will be considered for appointment on the law school’s lecturer track (Lecturer or Senior Lecturer); these positions are not tenure eligible.

The Master of Science in Law (MSL) is an innovative legal master’s degree offered by the Northwestern Pritzker School of Law. This program is geared specifically towards STEM professionals who are interested in topics at the intersection of law, regulation, business, and policy. The residential full-time program began in 2014; the online part-time format was added in 2017. The MSL program has a diverse student body, with both domestic and international students, and students of different ages, levels of work experience, backgrounds, race and ethnicity, and career goals. There are currently over 200 students enrolled and the program has over 400 alumni. Graduates of the MSL work in a variety of industries, including consulting, finance, pharma, biotech, engineering, healthcare, and law (including intellectual property, legal operations, and others); some go on to further study in medicine, business, law, and other fields.

The duties of the positions include teaching…

So the SEC dropped a couple of hundred pages of proposed new rules governing SPAC transactions. 

I’d say the rules fall into three categories: 

First, there are the ones meant to harmonize the regulatory framework for SPACs and for more traditional IPOs, both in terms of requiring disclosures akin to those in the IPO context, and in terms of imposing similar liability regimes, so that SPAC target companies will be vulnerable to Section 11 liability, financial advisors that shepherd the de-SPAC process will be treated as underwriters, and the PSLRA safe harbor will be unavailable for de-SPAC related projections.

(That last point is tricky: As the SEC acknowledged in its release, and as Professor Amanda Rose points out in a paper, because the de-SPAC is a merger, companies may essentially be required to include projections, like the ones that underlie financial advisors’ opinions, in their proxy statements.  Which would mean, unlike in a traditional IPO, there would be no minimizing liability exposure simply by failing to include projections in the SEC filings.  Couple that with Section 11 liability and it could be pretty intense.  That said, the SEC is proposing to require issuers to include climate-related forward-looking information…

Volume 14 of the William & Mary Business Law Review is currently accepting submissions for publication in 2022 and 2023. The Journal aims to publish cutting-edge legal scholarship and contribute to significant and exciting debates within the business community. Submissions for consideration can be sent via Scholastica, or if need be, via email to wm.blr.articlesubmission@gmail.com.