July 2023

Dear BLPB Readers:

“The University of Alabama School of Law seeks to fill up to five tenure-track positions for the 2024-25 academic year.

JOB QUALIFICATIONS: Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. Qualified applicants in any of the following areas will be considered: civil procedure, criminal law, torts, property, environmental, business (all sub-fields), antitrust, healthcare, intellectual property, legal ethics, evidence, election law, employment/labor, state & local law, and law & economics. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

APPLICATIONS/FURTHER INFORMATION: Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law. These positions will remain open until filled. Questions should be directed to Benjamin McMichael, Chair of the Faculty Appointments Committee (facappts@law.ua.edu). Interested candidates can apply online at https://careers.ua.edu/jobs/search/law

Visit UA’s employment website at …

Mississippi College School of Law invites applications from entry-level candidates for multiple tenure-track faculty positions expected to begin in July 2024. Our search will focus primarily on candidates with an interest in teaching one or more of the following subject areas: Civil Procedure, Business/Commercial Law, Contracts, Cyber Law/Law & Technology, International Law, and Sports/Entertainment Law. We seek candidates with a distinguished academic background (having earned a J.D. and/or Ph.D.), a commitment to excellence in teaching, and a demonstrated commitment to scholarly research and publication. We particularly encourage applications from candidates who will enrich the diversity of our faculty. We will consider candidates listed in the AALS-distributed FAR, as well as those who apply directly. Applications should include a cover letter, curriculum vitae, a scholarly research agenda, the names and contact information of three references, and teaching evaluations (if available). Applications should be sent in a single PDF to Professor Donald Campbell, Chair, Faculty Appointments Committee, via email at dcampbe@mc.edu.

Thanks to Ann for her great “So, Ripple” post last week.  I have been waiting for a case like this—one that engages a court in the details of how the Howey test applies to the way different types of  cryptoassets work.  I was especially interested in how the court in the SEC v. Ripple Labs opinion would handle the different ways in which cryptoassets are sold and traded.  Well, now we have an opinion to work with.

I especially appreciate Ann setting the stage so well with the doctrinal legal background of the case.  Well done, friend!  Like Ann, I teach Securities Regulation every year.  Unlike Ann, I am gleeful about teaching definitional content in the federal securities laws, including the definition of the term “security.”  It is amazing how, as financial investment instruments have evolved, significant numbers of practitioners and their clients have paid insufficient attention to the niceties of that definition and the definition of the embedded term “investment contract.”

Like Ann, I am comfortable that a single financial instrument can be a security in some contexts and not in others.  And, like Ann, I have questions about the court’s analysis in Ripple.  Specifically, I…

I am a member of the Executive Committee of the Association of American Law Schools (AALS) Section on Leadership.  This year, members of the  have been hosting a series of Zoom forums on teaching.  The remaining forums (although more may be scheduled) are set forth below.

Wednesday, July 19, 2023 – 12:00 p.m. – 1:00 p.m. EST – Joan Heminway, Interim Director, Institute for Professional Leadership and Rick Rose Distinguished Professor of Law, The University of Tennessee College of Law ,and Martin Brinkley, Dean and Distinguished Professor, University of North Carolina School of Law

Monday, September 25, 2023 – 3:00 p.m. – 4:00 p.m. EST – Lee Fisher, Dean, Cleveland State University College of Law

Wednesday, October 18, 2023 – 3:00 p.m. – 4:00 p.m. EST – Kellye Testy, President and CEO, LSAC, and Hillary Sale, Associate Dean for Strategy, Georgetown University

You can register for a session by clicking on the link for that session.  As you can see, I am cohosting Wednesday’s forum, which will feature two adjunct professors who have worked with full-time faculty to design and implement law school leadership courses.

Business law and leadership are naturally related.  The Section on Leadership…

This week, I was going to blog about the decision in Sobel v. Thompson, 2023 WL 4356066 (W.D. Tex. July 5, 2023), where a Texas district court relied on a forum selection bylaw to dismiss a derivative Section 10(b) claim in favor of Delaware Chancery, which – you guessed it – has no jurisdiction to hear Section 10(b) claims.  The court could have dismissed on the merits, especially given the dismissals of related cases in other jurisdictions, but instead, it purported to follow Lee v. Fisher, which I blogged about most recently here, but of course, Lee v. Fisher involved Section 14, and the court relied heavily on the purportedly-suspect pedigree of derivative Section 14 claims.  The SolarWinds court did not bother with that kind of analysis before extending Lee v. Fisher to derivative 10(b) claims and yeah, pretty much that’s it, you can read Alison Frankel’s Reuters piece here, and in the meantime just call me Cassandra.

Anyway, I was going to blog about all of that, but now I’m not, obviously, because the summary judgment opinion in the SEC’s enforcement action against Ripple finally came down, and I think I’ve made it clear by…

Dear BLPB Readers,

I wanted to share the below call for papers with interested readers.  Please note the submission deadline of September 15, 2023.  

“We are welcoming submissions in the form of technical papers and policy-oriented papers (forum discussions) on the listed topics below (but not limited to). Please be aware that submissions deadline expires in September 15, 2023.

Papers can be submitted here

Topics of interest:

  • Payment and settlement systems;
  • Digital money (including CBDCs) and central bank operations;
  • Trade repositories, central counterparties (CCPs) and central securities depositories (CSDs);
  • Risk management of FMIs (including liquidity, market, counterparty, operational and other risks);
  • Correspondent banking and network analysis of FMIs;
  • Non-bank payment service providers and access to central bank payment rails;
  • Exchanges and multilateral trading platforms;
  • Regulation, oversight and supervision of FMIs;
  • Tokenized deposits and stablecoins;
  • New technologies for FMIs, including distributed ledger technologies (DLTs), machine learning (ML) and artificial intelligence (AI).

Papers can be submitted here

To learn more about our submission guidelines, please click here“

The Belmont University College of Law invites applications for entry-level and junior-
lateral candidates in the area of business law for a tenure-track, faculty position to
begin Fall 2024. 
The Belmont College of Law encourages applications from people whose background,
life experiences, and scholarly approaches would contribute to the diversity of our
faculty, curriculum, and programs.
Applicants must possess a J.D. from an accredited U.S. law school and must
demonstrate strong scholarly potential and a commitment to excellence in teaching. 
Belmont is an EOE/AA employer.  Belmont College of Law reserves the right to
exercise a preference for those candidates who support the goals and missions of the
University.
If interested, please submit a letter of interest and curriculum vitae to the Chair of the
Faculty Recruitment Committee, Professor Kristi W. Arth, using the recruitment
committee’s email address – lawfaculty.recruitment@belmont.edu. If you have
questions about the position or Belmont University, please contact Professor Arth at
kristi.arth@belmont.edu.
Belmont University is a private, Christian university focusing on academic excellence
and is located in the heart of Nashville, one of the fastest growing and most culturally
rich cities in the country.  Belmont is the second largest private university in Tennessee
approximating 9,000

…

Ciao, from Italy.

Tomorrow, I have the privilege of sharing my work in an international symposium at the University of Genoa at the invitation of Vanessa Villanueva Collao.  This symposium offers a unique opportunity for transnational collaboration among corporate governance scholars.  We also are celebrating Vanessa’s completion of her J.S.D. degree (University of Illinois 2023).  

I am presenting my paper, forthcoming in the Michigan State Law Review, on civil insider trading in personal networks.  This is the companion paper to my article on criminal insider trading in personal networks, recently published in the Stetson Business Law Review and part of my larger, long-term project on U.S. insider trading in friendships and family situations.  As many readers may know, this project has fascinated me for a number of years now.  Each phase of the project offers new insights.  And each audience helps provide valuable food for thought. I am confident that the participants in and audience members at tomorrow’s symposium will be no exception.  I look forward to the interchanges on my work and the work of others being featured.

The program for the symposium is included below.  You will see more than a few fascinating members of the U.S.

Depending on who you talk to, you get some pretty extreme perspectives on generative AI. In a former life, I used to have oversight of the lobbying and PAC money for a multinational company. As we all know, companies never ask to be regulated. So when an industry begs for regulation, you know something is up. 

Two weeks ago, I presented the keynote speech to the alumni of AESE, Portugal’s oldest business school, on the topic of my research on business, human rights, and technology with a special focus on AI. If you’re attending Connecting the Threads in October, you’ll hear some of what I discussed.

I may have overprepared, but given the C-Suite audience, that’s better than the alternative. For me that meant spending almost 100 hours  reading books, articles, white papers, and watching videos by data scientists, lawyers, ethicists, government officials, CEOs, and software engineers. 

Because I wanted the audience to really think about their role in our future, I spent quite a bit of time on the doom and gloom scenarios, which the Portuguese press highlighted. I cited the talk by the creators of the Social Dilemma, who warned about the dangers of social…

Today, I’m blogging about Vice Chancellor Laster’s post-trial decision in In re Columbia Pipeline Group Merger Litigation.  This is a fascinating case for many reasons, starting with its procedural history.

The sum is, TransCanada bought Columbia Pipeline in 2016, and shareholders have been suing about it ever since.

First, there was a fiduciary claim against the Columbia Pipeline directors, which was dismissed on the pleadings.  Then, there was a securities action in federal court alleging disclosure failures in the merger proxy, which was also dismissed on the pleadings.  Then, there was an appraisal action, which resulted in a judgment that the deal price was equal to the fair value.  And then, finally, there was the second fiduciary action – this action, which made it to trial – and which Laster refused to dismiss on the pleadings in March 2021.  The plaintiffs brought claims against Robert Skaggs, the CEO and Chair, and Stephen Smith, the CFO and Executive VP.  They also sued TransCanada as an aider and abetter of Skaggs’s and Smith’s fiduciary breaches.

On the motion to dismiss back in 2021, no one claimed that the first fiduciary action – where the plaintiffs had not even sought books and records – was preclusive of the second one, but the defendants did argue that the earlier securities action and the appraisal action precluded – through estoppel, or as precedent, or as persuasive legal authority – the second fiduciary action.

Laster rejected both arguments.  For the earlier securities action, he spent some time on the difference between federal and Delaware’s pleading standards, but his reasoning carries a whiff of disdain for federal courts’ understanding of materiality in the merger context. 

As for the appraisal action, he held that it was asking a different legal question than the fiduciary action, namely, whether the deal price represented fair value, not whether Skaggs and Smith breached their fiduciary duties by failing to obtain the best value for the stockholders.

The upshot of all of this was that Laster permitted a fiduciary claim to proceed against Skaggs, Smith, and TransCanada.  After the Skaggs and Smith settled, the claims against TransCanada proceeded to trial, and that was the decision issued earlier this week, where Laster found that TransCanada did, in fact, aid and abet breaches of fiduciary duty.

Several things to talk about here, so behind a cut it all goes.