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Ann Lipton

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Ann M. Lipton is a Professor of Law and Laurence W. DeMuth Chair of Business Law at the University of Colorado Law School.  An experienced securities and corporate litigator who has handled class actions involving some of the world’s largest companies, she joined the Tulane Law faculty in 2015 after two years as a visiting assistant professor at Duke University School of Law.

As a scholar, Lipton explores corporate governance, the relationships between corporations and investors, and the role of corporations in society.  Read more.

Back when the SEC announced it was functionally no longer going to weigh in on whether companies may legally exclude shareholder proposals, I made a prediction in a number of spaces – except embarrassingly, I can’t remember which ones. Possibly podcasts, webinars, conferences, I’m sure someone remembers.

Which was: Companies now are in a heads-I-win, tails-you-lose position. They can exclude proposals, regardless of their legal basis for doing so. They can be confident that the SEC – which is now hostile to proposals – will not sue to force their inclusion. Very few shareholders will have the resources to sue over an improperly excluded proposal, and if any shareholder bothers, the company can simply moot the action by voluntarily agreeing to include the proposal even before filing an answer to a complaint. There is no risk to the company in simply excluding proposals, and waiting to see who sues.

And – behold!

AT&T said it would exclude a proposal offered by a variety of NYC pension funds asking for the company to disclose its EEOC-1, i.e., a form AT&T is required to submit to the federal government regarding the racial and gender makeup of its workforce. AT&T claimed…

I read with interest this FBI Most Wanted notice concerning a certain Joshua Link, who is accused of, well:

Joshua Robert Link is wanted for his alleged involvement in a fraud scheme between January of 2021 and December of 2023. Through his company, Agridime LLC, Link and his co-conspirators solicited cattle contracts from buyers throughout the United States. They told prospective buyers that Agridime would purchase cattle, care for and feed the cattle, have it processed, and sell the meat through Agridime’s distribution channels. Agridime offered investment returns from 15% to 32% to prospective cattle contract buyers. In reality, Agridime purchased only a fraction of the cattle. The scheme resulted in an approximate loss of $115 million to over 2,000 cattle contract buyers nationwide. On January 29, 2026, a federal arrest warrant was issued for Link in the United States District Court, Northern District of Texas, Fort Worth Division, after he was charged with Conspiracy to Commit Wire Fraud.

Upon further research, I discovered that the SEC had previously brought a civil action against him and his co-conspirators. As I understand the scheme, the fraudsters sold specific cattle to individual investors, promised to hold on to the cattle, raise, feed…

It was reported this week that OpenAI has disbanded its mission alignment team, and fired a woman (ostensibly because she discriminated against men) who opposed adding an “Adult Mode” to ChatGPT. Meanwhile, a former OpenAI researcher published a NYT op-ed about the erosion of OpenAI’s principles.

Notably, these moves come after OpenAI’s contentious restructuring into a Delaware public benefit corporation, which required assurances to the AGs of California and Delaware that the new structure would remain true to OpenAI’s original nonprofit mission to develop AI for humanity’s benefit. The way this was supposed to occur was that OpenAI-the-nonprofit was given a golden share to control OpenAI-the-benefit-corporation’s board.

The available evidence suggests … the mission may have been redirected.

Now, maybe that’s because of the identity of the individuals appointed to OpenAI-the-nonprofit’s board, which include current and former tech execs, a private equity guy, a corporate lawyer, and Sam Altman. And certainly, there may be a broader lesson here about the general toothlessness of the benefit corporation form – we’re seeing similar issues at Anthropic, which is also organized as a benefit corporation.

But the problem likely runs deeper. For one thing, we all remember…

If Funko could not turn its products around quickly, it would be left with dead product in its warehouse that it could not sell. This scenario could cost Funko far more than just the loss accrued from the costs of manufacturing and transporting these unsellable products; dead inventory could clog up limited warehouse space and prevent Funko from properly storing new product, incur additional

…

I previously posted about disputes over bump up exclusions in D&O insurance contracts, which exclude from insurance coverage claims that shareholders of a merger target should have received more consideration for their shares. As I argued, the purpose of the exclusion is to ensure that the cost of the acquisition isn’t offloaded on to the insurer. 

One of the cases I mentioned in that post, Harman Int’l Indus. Inc. v. Ill. Nat’l Ins. Co., was just affirmed by the Delaware Supreme Court, and the reasoning interests me.

In this case, Harman International was acquired by Samsung Electronics, and shareholders sued under Section 14(a), which prohibits false proxy statements, and Section 20(a), which adds joint and several liability to control persons – the substantive claim was Section 14(a).  Shareholders argued that, due to false statements in the proxy, they were induced to vote in favor of a merger at a lowball price.

Eventually, the case settled for $28 million, and when the defendants sought insurance coverage, the insurer claimed the settlement was subject to the bump up exclusion.  On appeal, the Delaware Court disagreed.

According to the court, the insurance contract had two clauses, both of which had to…

Tulane Law School invites applications for its Forrester Fellowship position, which is designed for promising scholars who plan to apply for tenure-track law school positions. The Forrester Fellow is full-time faculty in the law school and is encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support and mentorship, a professional travel budget, and opportunities to present works-in-progress in faculty workshops. 

Tulane’s Forrester Fellow will teach legal writing in the first-year curriculum to first-year law students in a program coordinated by the Director of Legal Writing. The Fellow is appointed to a one-year term with the possibility of a single one-year renewal. Applicants must have a JD from an ABA-accredited law school, outstanding academic credentials, and significant law-related practice and/or clerkship experience. Applications may be submitted here: Apply – Interfolio. If you have any questions about this position, please contact Erin Donelon at edonelon@tulane.edu.

So, the Delaware Supreme Court came out with its long-awaited decision in Moelis & Co. v. West Palm Beach Firefighters’ Pension Fund and as far as I can tell, it holds that a contract is a charter if you wait long enough.

So, the issue here is, Moelis went public with this overweening shareholder agreement in place in 2014 granting Ken Moelis various governance rights. A shareholder bought stock shortly after the IPO, but waited nine years to sue claiming that the agreement was categorically illegal under Delaware law (which, you may have heard, has since been amended). I genuinely, honestly, get the idea that this long after the IPO there might be reliance interests in this governance arrangement, but the Delaware Supreme Court’s manner of expressing such an idea is … weird.

Doctrinally, the legal issue is whether a contract that usurps board authority is (was) “void” or “voidable.” What is the difference? A voidable contract is one that a party has the option of rejecting, but also the option of accepting. A void contract simply cannot be enforced, at all – it is legally impermissible. So, for example, a voidable contract might be one that corporate…

In November, I was privileged to deliver the inaugural Tamar Frankel Lecture at Boston University Law School. Professor Frankel is a trailblazer in corporate governance and fiduciary law, and it was wonderful to see that this lecture series has been established in her name.

Below is the text of my remarks on November 24:

Edit: Now there’s video – this is the Youtube link.

So, I want to begin by adding my voice to the chorus of praise for Professor Frankel’s work.  She is a legend in this field, and I cannot tell you how honored I am to have been invited to kick off this series.

You know, the school advertised this lecture on LinkedIn, and her former students flooded the comments section with praise, a lot of which was words to the effect of, she somehow made securitization interesting!

Which is funny but for real, for those of us in the business space, it’s very much what we aspire to.  What I will aspire to in this talk!

Which is called Corporate Governance Authoritarianism, and I’ll kick it off by pointing to this slide.

I’ve only got like two slides, by the way, so you’re…

Where we last left off, a couple of companies had adopted forum selection bylaws purporting to shunt all derivative actions to the Delaware Court of Chancery – intending, I will swear with my last breath – to capture state law fiduciary claims.  When they got hit with the relatively-uncommon federal law Exchange Act derivative claims (under Section 14(a)), they celebrated their fortune and sought to enforce the bylaws against those, as well, even though Chancery has no jurisdiction over Exchange Act claims, which would, of course, mean just immediate dismissal.

They lost in the Seventh Circuit, but prevailed in the Ninth, which ultimately resulted in Delaware passing a new statute prohibiting forum selection bylaws from denying access to any court in the state of Delaware with jurisdiction to hear the claim at all – a law that is currently working mischief on the SEC’s attempt to encourage the use of arbitration in order to break securities class actions.

Anyhoo, the latest on this concerns a pair of securities actions filed in the Northern District of California against Block, alleging that the board failed to ensure compliance with various anti-money laundering statutes and things of that nature.  (Neither…

A couple of months ago, I posted about the case of Cannon v. Romeo Systems, where the CEO and sole director of a startup failed to notice an edit in a stock warrant that ultimately guaranteed the holder far more shares in his company than he had expected, with disastrous consequences. Mostly, it’s a tale of sloppiness; he signed a contract without reviewing it for changes, and then – when warned by KPMG of discrepancies between his own cap table and the terms of the warrant – ignored it. Negligent, perhaps, but understandable.

Unfortunately, as the case continues, our CEO seems to have … learned very little.

The CEO is appealing the decision, and under Delaware law, if he wants to stay the judgment, he has to post security for the full amount awarded to the plaintiff, which is over $27 million. He petitioned to be permitted to post not in cash, but in private company stock – a completely different private company than the one in the original dispute, and one for which he also serves as Chair and CEO. But, of course, in order to use private company stock, he had to provide evidence of its value. …