September 2024

FORDHAM UNIVERSITY SCHOOL OF LAW invites applications for a full-time tenure, tenure-track, or long-term contract faculty position to direct our Entrepreneurial Law Clinic.  The faculty member will join a vibrant clinical program that has 15 full-time clinicians who teach, practice, and lead. We welcome interest both from those new to clinical legal teaching and from experienced clinicians; an appointment could be made to Associate Clinical Professor, Associate Professor, Clinical Professor, or Professor.

We seek dynamic candidates who are excited about clinical legal education, deeply committed to the academic enterprise, and able to collaborate with diverse groups inside and outside our university. We also welcome candidates who possess the capacity and inclination to support and advance law reform.  Commitment to principles of experiential learning and clinical pedagogy is central to the position; those who are not already conversant with these principles should be committed to developing in this domain.  The faculty member will have primary responsibility teaching and supervising students in the Entrepreneurial Clinic at our in-house law firm (Lincoln Square Legal Services, Inc.).  They will also have primary responsibility for selecting clients and matters and structuring the overall design and goals of the clinic.

In its current form, the highly…

The SEC recently settled an enforcement action against Zymergen for making false projections about its business.  Prior to its IPO in April 2021, many of these projections were given directly to analysts.  Zymergen did not include the projections in its registration statement, because companies are strictly liable to investors for false statements in a registration statement under Section 11 of the Securities Act, and so they generally try to avoid making projections that may turn out to be overly optimistic.  Instead, Zymergen gave the false projections to analysts, so the analysts would take the projections, and use them in building their models, which they would pass on to investors with a recommendation of some sort.

One question then, is, if the SEC had not brought an enforcement action, could Zymergen have been liable to investors for passing on bad info to analysts?

The answer is, maybe not.  Certainly not under Section 11, which only applies to information in a registration statement.  And maybe not under Section 10(b), the general antifraud statute, because Stoneridge v. Scientific-Atlanta holds that public investors are not deemed to “rely” on behind-the-scenes conduct that’s filtered to the public through the false statements of another entity. …

If you’re in North Carolina, or just passionate about the topic, consider coming to the NCCU 2024 Law and Technology Symposium and Summit October 10–11, 2024 at the Durham Convention Center. The symposium dives deep into generative AI and its impact on healthcare, while the summit offers a broader look at AI, data privacy, cybersecurity, emerging trends in tech policy, legal services regulation, and more. 

To register for the Symposium on October 10, please email techlawpolicyctr@nccu.edu.

To register for the Summit on October 11, where I’m speaking,  click on the “Register Today” link.

The organizers are still finalizing speakers, but if you come, look out for me on the Legal Risks in Cybersecurity Investigations panel. My co-panelists include Tylin Woodstock of Cisco Systems and Daniel Shin of William & Mary Law School.

The full agenda and impressive line up of speakers for the October 11 Summit , including two members of Congress, is below.

8:00 AM ET

Registration

8:00 AM-3:00 PM8:40 AM ET

Welcome

8:40 AM-8:45 AM

April Dawson

Associate Dean of Technology and Innovation and Professor of Law 

North Carolina Central University School of Law 8:45 AM ET

Greetings

8:45 AM-9:15 AM

Alyn Goodson

Executive Vice Chancellor 

North…

Reincorporations from Delaware to Nevada and elsewhere remain in the news with the Delaware Supreme Court awaiting oral argument in the TripAdvisor case.  I’ve covered the issue here before and written about Nevada with our Secretary of State for the Wall Street Journal.  Nevada offers an alternative to Delaware and a different litigation environment.  In that op-ed, we framed the issue this way:

The likelihood of expensive, meritless or value-destroying litigation leads public companies in Delaware to avoid deals they would otherwise make. Another of the three public companies that recently decided to exit, Fidelity National Financial, explained in a shareholder letter that the state’s approach “may discourage pursuit of transactions the Board might otherwise believe to be in the best interests of the Company and its stockholders” because of litigation costs.

This issue looms particularly large for corporations with significant shareholders. Although Delaware law offers a process for companies to manage transactions with conflicts outside court, Delaware jurists themselves don’t always agree about how much information corporate boards must push out to shareholders to avoid litigation. When the process becomes too costly and cumbersome, deals don’t get done.

This brings me to the most recent reincorporation proxy…

Widener University Delaware Law School located in Wilmington, Delaware, currently has multiple, full time, tenure-track faculty opportunities available to begin January 1, 2025, or July 1, 2025. Applications for visitors for the upcoming Spring 2025 Semester are also welcome. 

We welcome applications from candidates with teaching interests in required and bar tested courses.

Dear BLPB Readers:

“The American Business Law Journal (ABLJ) is seeking manuscripts for a special issue on “Rescuing Organizations in Financial Distress.”

Organizations around the globe, both private businesses and public entities, are currently experiencing extraordinary financial pressure and distress. A panoply of internal and external causal factors are contributing to the financial distress. While some organizations can overcome their financial predicament through continued operations, others require legal mechanisms to facilitate a path to rescue. The failure of a private business or the collapse of a public organization has a cascading impact on a host of stakeholders and interests, leading to significant detrimental outcomes well beyond the organization in financial distress. The special issue explores what businesses, regulators, lawmakers, and attorneys should do to provide effective rescue regimes and tools for organizations in financial distress.”

The deadline for submissions is February 3, 2025.  The complete call for papers is here:  Download Updated ABLJ 2025 Special Issue Call for Papers – Sept 2024.

UIC Law is currently looking to hire for an entry-level tenure-track position. They are inviting candidates to apply directly for consideration in their faculty hiring. The announcement is below. UIC requires candidates to apply directly before they can invite a candidate to interview with them. Candidates can follow this link to the webpage to apply by October 7, 2024.

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UIC Law, Chicago’s only public law school, invites applications for one entry-level tenure-track candidate to teach Torts and Products Liability with secondary needs of Business Associations and Constitutional Law.

Candidates must have a Juris Doctor from an ABA-approved law school or its equivalent from a foreign country; a record of teaching excellence or demonstrated potential to become an excellent teacher and a record of high-quality scholarship or demonstrated potential to produce high-quality scholarship; and demonstrated interested in serving the academy, the community, and the legal profession at an urban, public, Research 1 university. Excellent writing and communication skills and demonstrated ability to mentor students is highly preferred. Salary will be commensurate with experience and qualifications.

Confidential review of materials and screening of candidates will be ongoing and will continue until the position is filled. For fullest consideration, apply online at…

A while ago, I posted about an SEC enforcement action against Wahed Invest.  Wahed Invest is a religious investment advisor that purported to select and monitor investments to ensure compliance with Shari’ah law.  In fact, according to the SEC, it did not in fact have policies in place to assess ongoing Shari’ah law compliance,  

At the time, I noted that I had not before seen an enforcement action based on false nonfinancial representations – that were nonetheless material to investors’ nonfinancial goals – and I compared it to the then-proposed climate change rule’s consideration for the nonfinancial goals of investors.  Specifically, the proposed rule justified, in part, its requirement that companies disclose GHG emissions on the ground that some investors have made net-zero commitments, regardless of whether the emissions data would be financially material to the operating company.

Well, this morning, I learned about a new SEC enforcement action against Inspire Investing.  Like Wahed, Inspire is a religious investment advisor, and like Wahed, it purported to engage in a “biblically responsible” investment strategy that required it to use sophisticated data analysis to ensure no companies in its ETFs engaged in certain prohibited activities.  In fact, its methods were…

One of the best ways for students to feel like “real lawyers” is for them to negotiate and draft contracts. The University of Miami will be announcing an inaugural invitational in the coming weeks so if you want to be in sunny Florida in early February, stay tuned. That competition will not require knowledge of M&A.

If M&A is your happy place, here’s a fantastic opportunity from the American Bar Association. 

MAC CUP II- ABA M&A Committee Invitational

Fall 2024 – January 2025

Application and Preliminary Instructions

The M&A Committee of the American Bar Association’s Business Law Section is seeking applications from JD students enrolled in ABA-approved law schools in the US and Canada to participate in its annual ABA M&A Committee Invitational (the “MAC Cup”).

Get your sunscreen and sunglasses ready — the “Final Four” teams will win an expense-paid trip to Laguna Beach, California, to compete for the championship at the ABA M&A Committee’s annual meeting on January 30 – 31, 2025.

Students should apply, and will participate, in teams of two. Qualifying rounds will be held during Fall 2024, with final rounds in January 2025. Additional information is attached below. Materials from last year’s MAC Cup, and…

The SEC’s ongoing sweep recently resolved potential claims against nine different SEC-registered investment advisory firms for violations of its Marketing Rule.   The firms paid civil penalties ranging from $60,000 to $325,000.  In total, the SEC secured about $1.2 million in civil penalties.

Marketing Rule enforcement sits in an interesting place after the Jarkesy decision.  The Marketing Rule is Advisers Act Rule 206(4)-1.  It’s codified at 17 C.F.R. 275.206(4)-1.  Section 206 of the Advisers Act is an anti-fraud provision.

Jarkesy would seemingly apply to give respondents the right to a jury trial and a federal court proceeding. Although addressing a different portion of the securities laws, the Jarkesy majority put it this way:

According to the SEC, these are actions under the “antifraud provisions of the federal securities laws” for “fraudulent conduct.” App. to Pet. for Cert. 72a–73a (opinion of the Commission). They provide civil penalties, a punitive remedy that we have recognized “could only be enforced in courts of law.” Tull, 481 U. S., at 422. And they target the same basic conduct as common law fraud, employ the same terms of art, and operate pursuant to similar legal principles. See supra, at 10–12. In short, this action

…