August 2023

Dear BLPB Readers:

“The American Business Law Journal (ABLJ) is currently accepting submissions for Volume 61 (2024).  

The ABLJ is a faculty-edited, triple blind, peer-reviewed journal, continuously published since 1963. The journal is ranked #4 in the 2022 Washington & Lee Law Journal Rankings for journals in Business, Corporations and Securities Law, and #2 among all refereed journals. It is ranked as an “A” journal by the Australian Business Deans Council.Our mission is to publish only top quality law review articles that make a scholarly contribution to all areas of law that impact business theory and practice, either U.S. or comparative in scope. We search for those articles that articulate a novel research question and make a meaningful contribution directly relevant to scholars and practitioners of business law. The blind peer-review process means legal scholars well-versed in the relevant specialty area have determined selected articles are original, thorough, important, and timely, and peer editors provide expert feedback and support throughout the editorial process. In particular, our editors are looking for articles that explore contemporary legal topics with direct impact on business and commerce, including:–equality and discrimination in the workplace of the future–speech in the workplace–the future of the administrative

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image from siliconflatirons.org

Friend-of-the-BLPB Andrew Schwartz has written his first book on a topic about which we both enjoy thinking and researching and writing: investment crowdfunding.  We have been cohabiting this corporate finance space for more than ten years now.  All credit is due to Andrew for laying down these words—his hard-fought wisdom—in a book.  He captures so much about the law and regulation of crowdfunding in the investment context in this volume.  I had the opportunity to offer some feedback to Andrew during the drafting process.   I recommend having the book on your bookshelves.

Colorado Law is hosting an event on its campus in Boulder on September 8, The Future of Startup Finance: A Symposium on “Investment Crowdfunding”, honoring the release of the book, which is entitled Investment Crowdfunding.  If you are in the neighborhood, you’ll want to stop by.  Among the invited speakers are many friends from the corporate finance law academy, as well as former SEC Commissioner Allison Herren Lee.

Congrats to Andrew!

I’ve previously blogged about difficulties that courts have when determining the scienter of a “corporation” in Section 10(b) cases.  The summary judgment decision Roofer’s Pension Fund v. Papa, 2023 WL 5287783 (D.N.J. Aug. 17, 2023), is another example of the genre.

There, the defendants were alleged to have concealed Perrigo’s collusion with other generic drug makers.  By the time the case got to summary judgment, however, the court concluded that the only individual defendants and named speakers had not acted with scienter.  The plaintiffs maintained that scienter could be shown against the corporate entity by virtue of the knowledge of two non-speaking executives, who were alleged to have been complicit in the collusive scheme.  The question, then, was the legal standard the court would use to determine corporate scienter.  I.e., would the non-speaking executives’ scienter be imputed to the corporate entity?

At that point, the court identified a purported difference among circuit approaches, which – the court lamented – was particularly difficult to examine in the summary judgment context because most of the prior decisions were reached on a motion to dismiss:

The narrow approach, applicable in the Fifth and Eleventh Circuits, requires a plaintiff to identify a corporate

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INSTITUTE FOR LAW & ECONOMICS
UNIVERSITY OF PENNSYLVANIA CAREY LAW SCHOOL

SECOND ANNUAL JUNIOR FACULTY BUSINESS AND FINANCIAL LAW WORKSHOP

CALL FOR PAPERS

The Institute for Law & Economics (ILE) at the University of Pennsylvania Carey Law School is pleased to announce its second annual Junior Faculty Business and Financial Law Workshop. The Workshop will be held in person on December 7, 2023 at Penn Carey Law.

The Workshop supports and recognizes the work of untenured legal scholars in the business and financial fields, including accounting, banking, bankruptcy, corporations, economics, finance, tax and securities, while promoting interactions with such scholars, selected tenured faculty and practitioners. By providing a forum for the exchange of creative ideas in these areas, ILE also aims to encourage new and innovative scholarship in the business and financial arena.

Approximately 6-8 papers will be chosen from those submitted for presentation at the Workshop. One or more senior scholars and practitioners will comment on each paper, followed by a general discussion of each paper among all participants. The Workshop audience will include invited untenured scholars, faculty from Penn Carey Law, The Wharton School, and other institutions, practitioners, and invited guests.

We welcome submissions from scholars within the

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From Danielle C. Jefferis at Nebraska Law through the Association of American Law Schools portal:

Nebraska Law is seeking entry-level and lateral candidates for tenure-track positions in Contracts and Business Organizations. Other courses that would fill curricular needs include but are not limited to Antitrust, Trademark/Unfair Competition, Corporate Finance, Transactional Drafting, Wills and Trusts, Accounting for Lawyers, Mediation, Negotiation, Client Counseling, Remedies, Natural Resources, Environmental Law, and Health Law. The posting is here: employment.unl.edu/postings/87281. 

I am on the Appointments Committee and happy to answer any questions from those interested. You may also reach out to the committee chair, Anthony Schutz, at lawappointments@unl.edu.

The Mercer University School of Law invites applications from entry-level and pre-tenure lateral candidates (Assistant and Associate rank) for three tenure-track faculty positions to begin in the Fall of 2024. We welcome applications from candidates in all subject matter areas, especially commercial law and legal writing. We also welcome candidates who are truly entry-level, with no prior law teaching experience, but who show significant promise for excellence in teaching and scholarship.   

Founded in 1873, Mercer University School of Law has a long tradition of producing lawyers who are ready to practice and committed to service. The School has earned a reputation as an excellent provider of legal education with an intense focus on student and faculty interaction. With an enrollment of about 375 students, Mercer Law School is one of 12 schools and colleges of Mercer University, which has been listed among the top institutions of higher education in the nation. The School of Law is nationally recognized for its exceptional programs in legal writing, advocacy (moot court and mock trial), public service, and professionalism and ethics. 

The School of Law is located in Macon, Georgia, a city of approximately 156,000. Macon is known for its strong musical heritage (e.g., Otis Redding, Little Richard, the…

Santa Clara University School of Law welcomes applications for three tenure-track positions to begin in the 2024-2025 academic year. Ideal candidates will be creative and committed scholars, exemplary teachers, and engaged colleagues, eager to serve our students and our institution alike. The School of Law has a longstanding commitment to the diversity of its faculty and its student body.  Of the three positions, we seek two who have expertise in the area of Intellectual Property or technology.  In filling these positions, we prefer candidates with experience and demonstrated abilities for teaching and successfully mentoring students from groups underrepresented in the legal profession, first generation students, and those coming from economically disadvantaged backgrounds.  Whether the applicant has taught for a short time or is a tenured professor, candidates should be prepared to teach at least one California Bar tested course as well as a balance of upper-level elective courses. Candidates also should have a well thought-out research agenda and a demonstrated commitment to producing excellent legal scholarship. Applicants should send a C.V., statement of interest, and representative publications to the Santa Clara University HR Portal HERE.      

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

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 careers.ua.edu/jobs/search/law.

Visit UA’s employment website at careers.ua.edu/home for more information. The University…

Emory’s Center for Transactional Law and Practice has extended the deadline for proposal submissions for the 8th Biennial Conference on the Teaching of Transactional Law and Skills, scheduled for October 6-7, 2023.  Quoting from the email message from Sue Payne, Katherine Koops, and Kelli Pittman:

We know that mid-August is a busy time.  Therefore, by popular demand, we are extending the deadline for submitting a proposal through August 31st.  Submit your proposal here.

We are also extending the deadline for you to nominate a colleague or yourself for the Tina L. Stark Award for Teaching Excellence through August 31st.  Submit your nominations here.

I know many of you have valuable things to offer at this conference, which always is among my favorites.  I have picked up wonderful ideas for my teaching–things I do not hear in other conferences. I hope you will submit a proposal and attend.

The PSLRA will allow defendants to escape liability for false projections if those projections are accompanied by “meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement.” 15 U.S.C. § 78u-5(c).  Additionally, even outside the context of projection statements, warnings and disclaimers may be sufficient to render otherwise-misleading statements not “false” for securities law purposes.  See Omnicare v. Laborers District Council Construction Industry Pension Fund, 575 U.S. 175 (2015).  Yet, as I’ve previously blogged, courts often treat fairly meaningless verbiage as though it conveyed critical information.

The most recent example is Steamship Trade v. Olo, 2023 WL 4744197 (SDNY July 25, 2023).  Olo is a publicly traded company that provides software to restaurants. One of those was the Subway chain. At a time when Olo allegedly knew (but did not disclose) that Subway intended to terminate its contract, Olo’s officers made a bunch of projections of future growth, to wit:

Throughout 2022, we believe the main drivers of revenue growth will be ARPU expansion as well as increasing the number of active locations on the platform….

And for 2022, again, we’re targeting a similar number of net

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