Photo of Benjamin P. Edwards

Benjamin P. Edwards

Subscribe to Benjamin P. Edwards's Posts

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

I spent a bunch of the day today reading an excellent draft paper written by one of my 3L students.  The paper is about fraud carveouts in no seller indemnity deals backed by representations and warranties insurance.  But this post is not about that.  It is about a question I asked the student (and myself) in connection with my review of the paper about how to classify or label certain provisions she was describing.

The standard structure of an M&A agreement includes articles clearly labeled as including representations and warranties, covenants, and conditions.  However, other articles are not as transparent in advertising their contents.  An article entitled “Indemnification” typically does include an express agreement (sometimes mutual agreements) to indemnify that would easily be classified as a covenant.  But that article also may include an exclusive remedy provision, restricting recourse for a breach of representation or warranty to the indemnification.  An example would be as follows (courtesy of Law Insider):

Sole and Exclusive Remedy. From and after the Closing, the indemnification provisions of this Article XII shall be the sole and exclusive remedy of each Party (including the Seller Indemnified Parties and the Purchaser Indemnified Parties) (i) for…

From friend-of-the-BLPB Megan Shaner:

  • The Transactional Law & Skills Section main program, “Transactional Lawyering at the Intersection of Business and Societal Well-Being,” will be held Friday, January 7th at 11am-12:15 EST.

    Description:

    * Presenters from Call for Papers:

    Michael Blasie, Penn State Dickinson Law, “The Rise of Plain Language Laws”
    George Georgiev, Emory University School of Law, “The Law and Economics of Materiality”

    * Moderator: Eric Chaffee, University of Toledo College of Law

    * Invited Speakers
    Praveen Kosuri, University of Pennsylvania Carey Law School

    Amelia Miazad, UC Berkeley School of Law

    Jennie Morawetz, Kirkland & Ellis (strategy and operations partner for Kirkland’s ESG and Impact practice)

    Faith Stevelman, New York Law School

    *Moderator: Megan Shaner, University of Oklahoma College of Law

  • At the end of the program we will hold a brief business meeting to elect the membership of next year’s executive committee. If you would like to nominate yourself or another member, please email me at mshaner@ou.edu by December 13, 2020.

This in from friend-of-the-BLPB Jessica Erickson:

+++++

Dear AALS Business Association Section Members,

I hope the end of your semester is going well! I’m writing with programming details for the January 2022 AALS Annual Meeting and to invite you to nominate yourself or others for Executive Committee positions next year.

January 2022 Annual Meeting

1. Registration is still open, and you can register here https://aals.secure-platform.com/a/organizations/main/submissions/details/7094 . As you may know, most law schools have paid school-wide registration fees again this year, which makes registration simpler, but you still have to register to attend any of the sessions.

2. The Business Associations Section main program, “Race and Teaching Business Associations,” will be held Friday, January 7th at 12:35 to 1:50 EST. Many thanks to James Park, the section’s chair-elect, for organizing this panel!

Description: Business Associations classes taught in most law schools spend little if any time on issues relating to racial discrimination and inequity. But as important social institutions, businesses have long had a significant impact on racial equity. The increasing scrutiny of the lack of diversity on public company boards is one of several fronts where businesses are facing both legal and social pressure to address racial inequity. Students…

From our friend Art Wilmarth at GWU Law:

George Washington University Law School is seeking to hire a new Assistant Dean (and program director) for our Business and Finance Law Program.

Following is the link for the job posting:

https://www.gwu.jobs/postings/88506

If you know of well-qualified candidates who might be interested in this
position, please share this information and encourage them to apply.
Applications should be submitted ASAP, and preferably by December 15, 2021.

Many thanks, and best regards ……………… Art Wilmarth

Arthur E. Wilmarth, Jr.
Professor Emeritus of Law
George Washington University Law School
2000 H Street, N.W.
Washington, DC 20052

In my Corporate Finance class this morning, as a capstone experience, I asked my students to read and be prepared to comment on an article I wrote a bit over a decade ago.  The article, Federal Interventions in Private Enterprise in the United States: Their Genesis in and Effects on Corporate Finance Instruments and Transactions, 40 Seton Hall L. Rev 1487 (2010), offers information and observations about the U.S. government’s engagements as an investor, bankruptcy transformer, and M&A gadfly/matchmaker in responding to the global financial crisis.  A discussion of the article typically leads to a nice review of several things we have covered over the course of the semester.  I have a number of topics I want to ensure we engage with, but I allow some free rein.

Today, one of our interesting bits of discussion centered around the possibility that the U.S. government became a controlling shareholder for a time due to the nature of its high percentage ownership interest in, for example, AIG.  This was not directly addressed in my article.  Nevertheless, we set into a discussion of the substance, citing to Sinclair Oil Corp. v. Levien, one of Josh Fershee’s favorite cases.  We also…

This just in from friend-of-the-BLPB Sam Thompson at Penn State Law.  Sam hopes we will bring this program to the attention of those “who might be interested in learning more about this very important topic,” including law school administrators, faculty, and students.  I know I plan to make others aware.

+++++

Dear Colleagues: This semester I am teaching a course dealing with issues in Minority Business Development, a subject I took as a student literally 50 years ago in my third year at the University of Pennsylvania Law School.  Because of the importance of this topic, Penn State Law has permitted me to make the course open to anyone who is interested in this very important topic, and recordings of all of the sessions of the course are available on the Penn State Law website here.

The course is divided into the following three segments:

Part I, Introduction and in-Depth Analysis of the Minority-White Gap in Business Ownership,

Part II, The Lawyer’s Essential Tools in Representing a Minority-Owned Small Business, and

Part III, The Big Ideas for Addressing the Minority-White Gap in Business Ownership

Part I was covered over five sessions and ended with a discussion with Professor…

Friend-of-the-BLPB Lécia Vicente sent along the following post, which I thought our readers might find interesting, especially in light of the blog’s prior posts on Elon Musk and his conduct (including those from Ann and me, like this one–citing to many others–and that one).  Enjoy!  Comment, as desired.  I have my own comments, which I will share in due course.

And (in this week of giving thanks) I offer gratitude to Lécia for bringing this post to us!  (You may remember that she guest blogged with us last December–almost a year ago.  Where did the time go?)

+++++

On November 6th 2021, Elon Musk polled his Twitter followers to determine if he should sell 10% of his stake in his company, Tesla. He wrote, “[m]uch is made lately of unrealized gains being a means of tax avoidance, so I propose selling 10% of my Tesla stock. Do you support this?”

On November 8th 2021, two days after Musk’s tweet, I tweeted the following question, “[c]an Musk actually be sued if he doesn’t follow through on his pledge to sell?” Initially, I was more concerned about securities law. Based on Musk’s tweets, shareholders might be misled to sell, meaning…

The College of Business Administration at Central Michigan University (“CMU”) invites applications for two separate entrepreneurship faculty positions to begin service on August 22, 2022.  CMU encourages applicants from diverse academic backgrounds to apply.

The first open position is for a tenure-track assistant professor.  Candidates must have a terminal degree: (i) a Ph.D. or D.B.A in entrepreneurship or a related business field (from an AACSB accredited institution); or, (ii) a J.D. (from an ABA accredited institution) with significant entrepreneurship-related experience; or, (iii) other relevant terminal degree with significant entrepreneurship-related experience. For those pursuing a Ph.D. or D.B.A., ABD applicants will be considered if it is clear that the applicant’s degree will be conferred at the time of appointment.  Tenure-track faculty are generally expected to teach three courses per semester, maintain an active research agenda, and actively participate in service activities.

The second open position is for a fixed-term faculty member at the rank of Lecturer I.  The candidate must have: (i) an earned a master’s degree in a business or other discipline related to entrepreneurship; or, (ii) a relevant terminal degree (such as a Ph.D. or D.B.A in entrepreneurship or related business field or a J.D.).  The candidate must also…

BLPB(NIULawLogo)Assistant Professor

College of Law

Northern Illinois University

NORTHERN ILLINOIS UNIVERSITY COLLEGE OF LAW invites applications for an anticipated opening for an entry-level tenure-track faculty position beginning August 2022. Duties include engaging in high quality research and teaching, as well as being an active participant in law school and university service. Applicants must hold a J.D. degree from an ABA accredited law school, or a foreign law school equivalent, and must provide evidence of the potential for engaging in high quality research and teaching. 

NIU Law is a public law school. It resides at the heart of a diverse and active university campus of over 17,000 students in DeKalb, Illinois, located on the western edge of the Chicago metropolitan area.

Preferred qualifications include record of scholarly publication, teaching experience (particularly in a law school), legal practice experience, strong law school record, law journal membership, and clerkship experience.

We will consider candidates with a broad range of teaching and research interests. Our needs include, but are not limited to, Business Law, Civil Procedure, Commercial Law, Tax, Trusts and Estates, and skills courses. Applications are encouraged from women, members of minority groups, and others whose background and experience would contribute to the diversity…

Expressions of interest due November 19, 2021
Drafts due December 22, 2021

Journal of Affordable Housing & Community Development Law

GUIDELINES FOR AUTHORS

The Journal of Affordable Housing & Community Development Law is the official quarterly publication of the Forum on Affordable Housing and Community Development Law of the American Bar Association. The Journal is the nation’s only law journal dedicated to affordable housing, fair housing and community development law. The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners. This issue, which will hit mailboxes in late April of 2022, will have a theme: preservation of affordable housing, expiring use restrictions, and “Year 15” issues. Your submission does not have to address the theme but we will be looking out for pieces that do.

Article/Essay Length. The Journal welcomes essays (typically no longer than 6,000 words) or articles (typically 5,000 – 10,000 words). Generally, articles are more thoroughly researched and footnoted than essays.

Style. The writing should be appropriate for a readership that consists primarily of lawyers. Authors should avoid excess verbiage, long quotations and jargon. Authors should use gender-neutral language.…