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Colleen Baker

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PhD (Wharton) Professor Baker is an expert in banking and financial institutions law and regulation, with extensive knowledge of over-the-counter derivatives, clearing, the Dodd-Frank Act, and bankruptcy, in addition to being a mediator and arbitrator.

Previously, she spent time at the U. of Illinois Urbana-Champaign College of Business, the U. of Notre Dame Law School, and Villanova University Law School. She has consulted for the Federal Reserve Bank of Chicago, and for The Volcker Alliance.  Prior to academia, Professor Baker worked as a legal professional and as an information technology associate. She is a member of the State Bars of NY and TX. Read More

Here’s a new one on the “LLC as corporation” front.  A court in the Southern District of New York says the following:

[T]his Court has subject matter jurisdiction, since the parties are diverse and the amount in controversy exceeds $75,000. Hermes and Swain are “citizens” of different states; Hermes, a French limited liability corporation, has its headquarters in New York, while Swain is a New Jersey resident.

Hermés of Paris, Inc. v. Swain, 2016 WL 4990340, at *2 (S.D.N.Y., 2016)

In most such circumstances, when a court refers to a “limited liability corporation,” it meant to say “limited liability company.” See, e.g., Avarden Investments, LLC v. Deutsche Bank Nat’l Trust Co., No. 16-CV-014-LM, 2016 WL 4926155, at *2 (D.N.H. Sept. 15, 2016) (“Avarden is a limited liability company organized under the laws of New Hampshire. New Hampshire law permits a limited liability corporation to assign management responsibility of a limited liability company to a ‘manager.’ RSA 304-C:13.”). But not this time.

Bloomberg says Hermès of Paris, Inc. operates as a subsidiary of Hermes International SA.  The French version of an LLC is not an SA, it often viewed as an SARL.  

So, technically, a corporation is a…

I think, by now, most people have heard about Colin Kaepernick’s protest, which he manifested by his refusal to stand for the national anthem before the 49ers’ August 26 preseason game against the Green Bay Packers.  Kaepernick explained his actions as follows: 

I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.

Many were offended by his decision; others have applauded it.  What is it that makes people (particularly white people) so upset about someone choosing not to stand for the national anthem? I thought the anthem and flag were supposed to stand for freedom, which includes the freedom to dissent and disagree. It fascinates me that one football player could get this much press for deciding not to do something he was under no obligation to do (as his employer made clear). But it certainly explains why he did it. If nothing else, Colin Kaepernick reminded of us both of our ability…

What does it mean to opt out of fiduciary duties?  In follow-up to my co-blogger Joan Heminway’s post, Limited Partnership Law: Should Tennessee Follow Delaware’s Lead On Fiduciary Duty Private Ordering?, I will go a step further and say all states should follow Delaware’s lead on private ordering for non-publicly traded unincorporated business associations. 

Here’s why:  At formation, I think all duties between promoters of an unincorporated business association (i.e., not a corporation) are always, to some degree, defined at formation. This is different than the majority of other agency relationships where the expectations of the relationship are more ingrained and less negotiated (think employee-employer relationship).  

As such, I’d make fiduciary duties a fundamental right by statute that can be dropped (expressly) by those forming the entity.  I’d put an additional limit on the ability to drop fiduciary duties: the duties can only be dropped after formation if expressly stated in formation documents (or agreed unanimously later). That is, if you didn’t opt out at formation, tell all those who could potentially join the entity how you can change fiduciary duties later. This helps limit some (though not all) freeze-out options, and I think it would encourage investors to check the entity documents …

So, I am very anti-fraud, and I think cheaters should not prosper.  But I also think courts should know what they are talking about, especially in criminal cases. The following is from a new Second Circuit case: 
Although we review claims of insufficiency de novo, United States v. Harvey, 746 F.3d 87, 89 (2d Cir. 2014), it is well recognized that “a defendant mounting such a challenge bears a heavy burden” because “in assessing whether the evidence was sufficient to sustain a conviction, we review the evidence in the light most favorable to the government, drawing all inferences in the government’s favor and deferring to the jury’s assessments of the witnesses’ credibility.”  . . . 
[W]e reject Jasmin’s challenge to her Hobbs Act conviction. The evidence presented at trial more than sufficiently describes the consideration received by Jasmin in exchange for her official actions as Mayor, including the $5,000 in cash from Stern, “advance” cash for their partnership, and shares in the limited liability corporation that would develop the community center.
United States v. Jasmin, No. 15-2546-CR, 2016 WL 4501977, at *2 (2d Cir. Aug. 29, 2016). 
 
I can’t actually figure out exactly what’s going on

…

I am still working my way through this new paper, Seeking an Angle of Repose in U.S. Business Organization Law: Fiduciary Duty Themes and Observations, from J. William Callison of Faegre Baker Daniels LLP. It’s an interesting premise, and worth a look. Here’s the abstract:

This article applies liberal, neoliberal, critical, feminist and communitarian political theories to limited liability company and partnership fiduciary duty law; discusses developments in that law over the last two decades by focusing on theory; suggests a pragmatic and balanced approach to fiduciary duty law that incorporates desirable features of different approaches; and suggests that law, as developed in uniform acts, has been moving toward a balanced approach.

The paper is available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2827771

The concept of private prisons has always seemed off to me.  Prisons have a role in society, but the idea of running such institutions for profit, it seems to me, aligns incentives in an improper way. The U.S. Justice Department apparently agrees and said yesterday that it plans to end the use of private prisons.  The announcement sent stocks tumbling for two private prison companies, Corrections Corp. of America (CCA) and GEO.  Both dropped as much as 40% and remain down more than 30% from where they were before the announcement.   

Obviously, this can’t make shareholders happy, but I figured this had to be a known risk. I was right — CCA’s 10-K makes clear that such government decisions related to future contracts could lead to a reduction in their profitability.  So, the disclosure seems proper from a securities regulation perspective. Still, reading the disclosure raises some serious questions for me about the proper role of government.  I frankly find this kind of outsourcing chilling.  For example, CCA states: 

Our results of operations are dependent on revenues generated by our jails, prisons, and detention facilities, which are subject to the following risks associated with the corrections and detention industry.

We are subject to fluctuations in occupancy

…

Whether we’re ready or not (we mostly are), classes start tomorrow for West Virginia University College of Law. Orientation for new students started last week, and I had the chance to teach a group of our new students. I had three sessions with the group where we discussed some cases, how to brief a case, and did some writing exercises.  It’s been a while since I worked with first-year students, and it was a lot of fun.  

In addition to the assigned work, I answered a lot of questions, in and out of the classroom.  Questions focused mostly on how to succeed as a law student. Although there’s plenty of advice on the internet, and whole books dedicated to subject, and even my own blog posts.  Last year, I provided my Ten Promises For New Law Students to Consider.   This year, I had enough similarly themed questions, that I thought I’d add some detail to my basic advice for new law students. 

1) Do the work. 

Some students ask — if I work law school like a job, is that a good idea?  As with everything, it depends.  I don’t know how you work.  If you work regular hours, every day…

I am not the first to notice that law professors, and academics generally, have their own jargon and favorite buzzwords.  Some websites do a nice job of highlighting (or mocking) many of the odds turns of phrase many of us use.  Lawyers in the practicing bar do this, too, of course, and other professionals, especially business people (see, e.g., Dilbert) and public relations professionals.

I try not to be too jargon-y, but I have caught myself more than a few times.  I am big on “incentivize,” for example.   After attending a great SEALS Conference (likely more on that to come), I came away with a bunch of new ideas, a few new friends, and some hope for future collaboration.  I also came away noticing that, sometimes, as a group, “we talk funny.”  On that front, two words keep coming to my mind: “unpack” and “normative.”

So, when did we all “need” to start “unpacking” arguments?

This seemed like a relatively recent phenomenon to me, so I checked.  A Westlaw search of “adv: unpack! /3 argument” reveals 140 uses in Secondary Sources.  The first such reference appears in a 1982 law review article: Michael Moore, Moral Reality, 1982 Wis.

I am traveling to the SEALS Annual Meeting today, which means my summer is over.  We start orientation next week at WVU College of Law, and I have absolutely no idea where the time went. 

I will be keeping myself busy at the conference, where I am participating in a number of events, including a discussion group on Sustainability & Sustainable Business and one on White Collar Crime.  Today, I thought I’d write a little bit about the first subject, and engage in a bit of shameless self-promotion, as well. 

The intersection of sustainability and business is a significant part of my work.  My areas of focus are business law and energy law, and I have spent much of my research time looking at how companies respond to regulation, including the effects of environmental regulations.  (I also teach courses in Energy Law and Business Organizations, as well as a course called Energy Business: Law and Strategy, which merges the two subjects.)  

I was recently asked to submit a response to Prof. Felix Mormann’s paper, Clean Energy Federalism, which appeared in the Florida Law Review.  His paper, which I think is well done, offers “two case studies, a novel model for policy…

Anyone who reads this blog knows that I have issues with how people mess up the distinction between LLCs (limited liability companies) and corporations. In some instances, it is a subtle, likely careless, mistake.  Other cases seem to be trolling me.  Today, I present you such a case: Sky Cable, LLC v. Coley, 2016 WL 3926492 (W.D.Va., July 18, 2016).  H/T: Jay D. Adkisson. The case describes the proceedings as follows: 

DIRECTV asks the court to reverse-pierce the corporate veil and declare that Randy Coley is the alter ego of his three limited liability companies, such that the assets held by those LLCs are subject to the judgment in this case.

Okay, so claiming to pierce the “corporate veil” of an LLC is wrong (it doesn’t have a “corporate” anything), but it’s also exceedingly common for lawyers and courts to make such an assertion. This case takes the improper designation to the next level.  

First, the court describes the LLCs in questios as “the Corporate Entities.”  It then goes on to discuss “Coley’s limited liability companies.”  Ugh.  The court further relates, “DIRECTV stated that in a forthcoming motion, it would ask the court to reverse-pierce the corporate…