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Benjamin P. Edwards

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Benjamin Edwards joined the faculty of the William S. Boyd School of Law in 2017. He researches and writes about business and securities law, corporate governance, arbitration, and consumer protection.

Prior to teaching, Professor Edwards practiced as a securities litigator in the New York office of Skadden, Arps, Slate, Meagher & Flom LLP. At Skadden, he represented clients in complex civil litigation, including securities class actions arising out of the Madoff Ponzi scheme and litigation arising out of the 2008 financial crisis. Read More

Vice Chancellor Laster recently requested information from litigants in Seavitt v. N-able, Inc. with this letter.  According to the complaint:

Plaintiff brings this action because N-able is presently flouting this foundational principle of Delaware law through a contractual arrangement designed to entrench and perpetuate certain favored stockholders’ control over N-able’s business and affairs. Specifically, in violation of DGCL Section 141(a), N-able has provided certain favored stockholders—affiliates of the private equity firms Silver Lake Group, LLC (“Silver Lake”) and Thoma Bravo, LLC (“Thoma Bravo,” and together with Silver Lake, the “PE Investors”)—with a contractual power to control the most important decisions and functions properly entrusted to the Company’s Board under our corporate system.  

. . . 

Third, in violation of DGCL Section 141(k) and in further derogation of the stockholder franchise, N-able has adopted an invalid provision in its operative Amended and Restated Certificate of Incorporation (the “Certificate”), purporting to provide that as long as the PE Investors own in the aggregate 30% of the voting power of the Company’s outstanding shares, “directors may be removed with or without cause upon the affirmative vote of the [PE Investors]. . .” This provision violates DGCL Section 141(k), which

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Senator Sanders recently released the Majority Report for the Senate’s Health, Labor, Education, and Pensions Committee.  That report has some grim findings about American retirements.  About half of people 55 and older have no retirement savings.  As we all know, defined-benefit pensions have become increasingly rare.  Unfortunately, defined-contribution pensions are often unavailable for a huge chunk of the workforce.  About 50 million workers don’t have a way to save for retirement through their payroll.

The report and its figures has to be part of any conversation now about how to think about efforts to improve the quality of financial advice and retirement savings.

There is much more in the report than this quick summary, and if you write or think about retirement issues, you should check it out.

Vice Chancellor Laster has issued his opinion in the TripAdvisor case.  I’m still digesting it, but the overall framework does not surprise me.  As I can’t improve on the opinion’s recitation of the basic factual situation, here it is:

A Delaware corporation has two classes of stock. The CEO/Chair owns highvote shares carrying a majority of the outstanding voting power, giving him hard majority control. The board decides to convert the Delaware corporation into a Nevada corporation, and the CEO/Chair delivers the necessary stockholder vote. The board does not establish any protections to simulate arm’s length bargaining. The conversion is not conditioned on either special committee approval or a majority-ofthe-minority vote.

A stockholder plaintiff challenges the conversion.1 The plaintiff argues that Nevada law offers fewer litigation rights to stockholders and provides greater litigation protections to fiduciaries like the directors and the CEO/Chair. The plaintiff alleges that the directors and the CEO/Chair approved the conversion to secure the litigation protections for themselves. In support of those assertions, the plaintiff cites the materials the board considered, disclosures in the company’s proxy statement, the work of distinguished legal scholars about the content of Nevada law, and public statements by Nevada policy makers about

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On March 1, 2024, the SEC will host an Investor Advocacy Clinic Summit both virtually and in Washington D.C.  The event will run from 11:00 a.m. to 4:00 p.m. EST.  It’s an opportunity for faculty and law students to:

LEARN about the work of the ten-law school investor advocacy clinics, and the benefits of these clinical programs for law students, law schools, and their communities.

HEAR perspectives from the SEC Chair, SEC Commissioners, and guest speakers.

ENGAGE with SEC staff about the work of the different Divisions within the Commission.

FIND out about job opportunities at the SEC and the federal government post-law school graduation.

This is the link to RSVP.

You can access the flyer for the event here:  Download 2024 IAC Summit Evite -RSVP

As I’ve mentioned before, the Department of Labor is now taking another go at improving advice standards for retirement accounts.  I put a quick letter together to give some reasons why I think it’s important to have high standards for advice in this context.

Although written to the Department of Labor, I tried to put the letter together in a way that would help journalists and others understand some of the critical issues facing Labor and the need to put some real protections in place.

One of the talking points often deployed by the industry here is that people should understand that they are in a sales environment and not rely overmuch on the insurance producer deploying every known psychological trick to generate trust.  In reality, many people–particularly older Americans do not understand that the advice is not free.  

My sense is that the rulemaking will probable go through and then we’ll find out how much room the courts will give to protect people here.

Today’s guest post comes to us from Anthony Rickey of Margrave Law:

The Thanksgiving weekend witnessed a debate between former Attorney General William Barr and attorney Jonathan Berry and Vice Chancellor Travis Laster over whether Delaware risks “driving away” corporations through “flirtation with environmental, social and governance [“ESG”] investment principles.”  Reuters reports that Chancellor McCormick further criticized Barr’s article at a Practicing Law Institute event, and Vice Chancellor Will  commented in a Bloomberg Law interview.  Professor Stephen Bainbridge has published two posts on the controversy.

When giants wrestle, wise men stay out from underfoot.  Nonetheless, I think the debate merits a close look because, however much I agree with Vice Chancellor Laster on matters of doctrine, I suspect that similar articles will become more common in the future.  Three factors influence my prediction:  a) Delaware has weakened its reputational bulwark against accusations of partisanship, b) the influence of politics in corporate law has increased (largely via ESG) and c) other states are now seeking to differentiate themselves from, rather than imitate, the Delaware Court of Chancery.

Delaware Dissolves One of Its Fundamental Corporate Law Pillars

The heart of Barr’s argument is that Delaware risks following “many blue states [that] are…

It’s tough to know what to write here today.  I was fortunate enough to be working from home when I started getting emails from the University.  This is what the first ones said:

(11:51 a.m.) University Police responding to report of shots fire in BEH evacuate to a safe area, RUN-HIDE-FIGHT.

(11:57 a.m.). University Police responding to confirmed active shooter in BEH. This is not a test.  RUN-HIDE-FIGHT.

My first thought was to wonder why they were not texting me.  Then it was to realize that if I were not getting texts, many of my colleagues might not either.  The BEH building code meant the shooter was at the Business School–just a short, short walk from the law school.  I started texting my colleagues.  At least all of them that I had numbers for.  As people checked in, I learned that my colleagues were sheltering in place as the school locked down.  I reached out to some students who I’d worked with and had numbers for to make sure they were okay.  Fortunately, the two that I connected with were not on campus.  But they very easily could have been.  Our final exams have started and students not taking exams…

As these may also be of interest to our readers here, I wanted to link to a couple of recent op-eds. 

As to the first, I drafted one with Joe Peiffer about FINRA’s expungement process. It ran in Financial Planning Magazine on November 15.  The crux of the argument is that FINRA’s reforms to its expungement process won’t fully solve the problem and will instead burden state regulators with additional unfunded responsibilities.  Here is a small excerpt:

Ultimately, the current reforms offer incremental improvements that will likely slow the deletion of valuable public records. Sadly, however, the current system continues to outsource expungement decisions away from FINRA — the primary regulator for brokerage firms — and onto independent contractor arbitrators. This system leaves the responsibility for educating those arbitrators about reasons not to grant expungements to complaining customers and thinly resourced state regulators.

This approach benefits FINRA because it allows it to avoid entangling itself on these issues. It also shifts costs away from FINRA. After all, parties seeking expungements pay hefty fees to FINRA for arbitration costs. Yet the public pays the price when FINRA  outsources responsibility for wise expungement decisions to poorly informed arbitrators who usually only hear

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If you’ve been following along, you know all about the pending challenge to FINRA in the D.C. Circuit.  Many amicus briefs have come in, including my own.  To make it easier for people to see what’s happening, I’ve pulled the briefs and put them in a Google Drive folder for easier access.  The briefs in the folder include:

  • FINRA
  • Alpine Opening
  • DTC & Clearing Groups
  • National Futures Association
  • North American Securities Administrators Association
  • Public Investor Advocate Bar Association
  • Securities Exchanges
  • Horseracing
  • Free Enterprise Chamber of Commerce
  • New Civil Liberties Alliance
  • The United States of America
  • Benjamin P. Edwards

We also have additional litigation raising similar issues now pending in North Carolina.

I predicted that we’d see these challenges and that they could pose big risks to the financial system in my Supreme Risk article.  So far, I’ve been cited by Alpine and the DTC and other clearing corporation’s amicus.  The DTC  brief agreed with my assessment and block quoted the article.

Any perceived weakness in Amici’s authority to enforce their rules could undermine their ability to deliver critical functions to the markets, such as individual participant risk monitoring, the setting of collateral requirements to cover credit, market, and liquidity risk

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Texas Tech University School of Law, Lubbock, Texas

Summary Information

The School of Law at Texas Tech University invites applications for a full-time, 9-month tenure-track Professor of Law position to begin in August of 2024.  The position is open to both entry-level candidates and candidates who are on the tenure-track or tenured at another school.  Candidates who satisfy Texas Tech University’s requirements to be hired with tenure will also be eligible to hold the Frank McDonald Endowed Professorship in business law.

Required Qualifications

In line with TTU’s strategic priorities to engage and empower a diverse student body, enable innovative research and creative activities, and transform lives and communities through outreach and engaged scholarship, applicants should have experience or demonstrated potential for working with diverse student populations at the undergraduate and/or graduate levels within individual or across the areas of teaching, research/creative activity, and service.

Specific required qualifications are:

  1. Candidates should have a J.D.;
  2. Candidates should have a demonstrated potential for excellence in research, teaching, and service; and
  3. Candidates should have demonstrated potential for excellence in the areas of Contracts and in corporate/business law, such as Business Entities, Securities Regulation, Mergers & Acquisitions, and related courses.

Preferred Qualifications

In addition to…