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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

Last year, Anthony Rickey and I published a paper highlighting potential conflicts of interest that can arise between securities class action plaintiffs, their counsel, and the class.  Our article suggested that courts could discourage troublesome practices by requiring law firms to disclose past findings of misconduct when they apply for lead counsel appointments.  The idea is to make sure that future judges know what happened in past cases so they can protect the class.

Recently, Judge Alsup of the Northern District of California issued this type of order after two of the country’s largest plaintiff-side securities litigation firms hurled allegations of misconduct back and forth.  The fallout from this decision demonstrates a potential shortcoming of mandatory disclosure orders:  they are not self-enforcing.

The Case:  SEB Investment Management AB v. Symantec Corp., et al., No. 3:18-cv-02902-WHA (N.D. Cal.)

Judge Alsup’s April 20, 2021 order briefly summarizes the troublesome facts of a securities class action involving Symantec Corporation.  When SEB Investment Management AB (“SEB”) became lead plaintiff in 2018, the court ordered SEB to interview law firms to serve as class counsel.  SEB selected Bernstein, Litowitz, Berger & Grossman, LLP (“BLBG”), its original counsel, to lead the litigation “even though BLBG…

I noted in a January post that Professor Mihailis E. Diamantis and I are joining Professors J. Kelly Strader, and Sandra D. Jordan as co-authors of the 4th edition of White Collar Crime: Cases, Materials, and Problems. I am pleased to announce that the text is now available for fall 2021 adoption, and instructors can request an electronic copy for immediate review here. Here is a description of the new edition:

White Collar Crime: Cases, Materials, and Problems is a unique, problems-focused approach to teaching and learning about federal white collar crime. The authors draw from their practice experience in prosecuting and defending white collar crime cases to present both foundational and current issues of law, policy, and theory as they arise in statutes and cases. The text includes:

  • Comprehensive coverage of the substantive law of various white collar crimes (topics include conspiracy, mail fraud, wire fraud, securities fraud, computer crimes, bribery, extortion, perjury, false statements, obstruction of justice, tax fraud, currency transaction reporting crimes, money laundering, and RICO);
  • Chapters dedicated to the practical and procedural issues that typically arise in, and often are unique to, white collar cases (topics include internal investigations, compliance programs, civil actions

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A little while ago, Anthony Rickey and I published an article looking at the settlement approval process in class actions with a particular focus on the State Street Case.  Our article noticed that Judge Wolf found that class counsel made deceptive, less than fully candid statements when it submitted hourly rates to a court which no client had ever actually paid:

In theory, a vigorous lead plaintiff actively supervises its lead counsel, examining fee requests to maximize the portion of the settlement retained by the class. The efforts that ATRS undertook to supervise its class counsel remain unclear, but they do not seem to have been effective. In the State Street litigation, Judge Wolf harshly criticized Thornton for declaring, under oath, that one attorney’s regular rate was $500 per hour, when the firm could only identify one case in which that attorney had been charged at even $300 per hour. He similarly noted that Labaton submitted as “regular rates” for services hourly rates that had “never been charged to paying clients.” ATRS did not volunteer these facts. They were only discovered because the State Street court took the apparently unprecedented step of appointing a special master to investigate.(footnotes omitted) 

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    Now that the spring commencement address season has come to a close, I’ll take a moment to reflect on one of the most infamous commencement speeches in history. Thirty-five years ago, on May 18, 1986, Ivan Boesky addressed the graduating class of UC Berkeley’s Haas School of Business. In his speech, he famously claimed that

[g]reed is all right, by the way. I want you to know that. I think greed is really healthy. You can be greedy and still feel good about yourself.

In response, James B. Stewart notes that the “crowd burst into spontaneous applause as students laughed and looked at each other knowingly.” Den of Thieves p.261 (1992). And why not? This was the 1980s, the “Decade of Greed” (see, e.g., here and here). Boesky’s claim garnered so much attention that it was famously paraphrased by the fictional Gordon Gekko in Oliver Stone’s iconic 1987 movie, Wall Street.

    But, of course, by definition greed is not good. As Aristotle explained, greed is a vice. It is the opposite of the virtue of generosity. The greedy are “shameful love[rs] of gain” who “go to excess in taking, by taking anything from any source.” Aristotle…

I just returned from my first “in-person” scholarly workshop since the onset of the pandemic. The event, “Introduction to the Economics of Information, Advertising, Privacy, and Data Security,” was hosted by the George Mason University Antonin Scalia Law School’s Law & Economics Center (LEC). The workshop took place at the Omni Amelia Island Resort—just outside of Jacksonville, Florida.

After a warm welcome from the LEC’s Director, Henry N. Butler, the program launched into nine sessions over three days:

  • Introduction to Economics of Information
  • Signaling/Screening/Mandated Disclosures
  • Theories of Advertising, Substantiation, and Optimal Remedies
  • Economics of Privacy
  • Algorithmic Bias
  • Economics of Data Security
  • Big Data, Privacy, and Antitrust
  • First Amendment Issues
  • Social Media and Content Moderation.

The sessions were led by either Prof. Jane Bambauer, Prof. James C. Cooper, or Prof. John M. Yun. I’ve attended LEC workshops in the past, and have found them to be both rigorous and entertaining. This event was no exception. The assigned readings ranged from classic articles by Harold Demsetz and Jack Hirshleifer to contemporary pieces authored by the presenters and other leaders in the field. I learned a great deal and recommend future LEC workshops to anyone who may have the…

We are looking to hire for a position as Instructor of Legal Analysis and Communication at Mississippi College School of Law. Please don’t hesitate to reach out to me directly if you are interested. Here’s the announcement:

Mississippi College School of Law (MC Law) invites applications from candidates for a position as Instructor of Legal Analysis and Communication. Responsibilities will include teaching in MC Law’s summer entry program, its Legal Analysis and Communication program (which focuses on writing and analytical skills), and in courses and workshops targeting success in law school and on the bar exam. We seek candidates with exceptional writing skills, a distinguished academic background (having earned a J.D.), and a commitment to excellence in teaching. We particularly encourage applications from candidates who will enrich the diversity of our faculty. Applications should include a cover letter, curriculum vitae, the names and contact information of three references, and teaching evaluations (if available). Applications should be sent in a single PDF to Professor John P. Anderson, Chair, Faculty Appointments Committee, via email at jpanders@mc.edu.

Nevada’s Supreme Court recently released a new business law decision.  It arose out of AMC’s acquisition of RLJ Entertainment (RLJE), a Nevada corporation.  Back in 2016, AMC  loaned RLJE $65 million in exchange for the option to become a controlling stockholder by acquiring 50.01 percent of RLJE’s stock.  That deal prohibited RLJE from shopping any acquisition proposal and also let AMC designate two directors on RLJE’s board.  Later, in 2018, AMC offered to purchase RLJ’s outstanding shares at a price of $4.25 a share.  RLJE formed a special committee to negotiate.  The special committee negotiated over about 50 days and eventually secured an offer at a a price of $6.25 a share.  The merger was approved at a stockholder meeting held on Halloween.  

Shareholder plaintiffs sued, pointing out that certain directors were interested parties in the transaction.  Notably, they also conceded that “the two members of the Special Committee, Laszlo and Royster, ‘had no commercial, financial or business affiliations or relationships with any of AMC, [ ] Johnson or any of their respective affiliates.'”  

Under Delaware law, this sort of controlling shareholder acquisition would likely have been subject to entire fairness review without both approval by independent directors and…

I’ve addressed the recent social-media-driven retail trading in stocks like GameStop in prior posts (here and here). In both posts, I focused on evidence that at least some of this trading seems to pursue goals other than (or in addition to) profit. For example, some of these retail traders claim that they are buying and holding stocks as a form of social, political, or aesthetic expression. My coauthors Jeremy Kidd, George Mocsary, and I recently posted a forthcoming article on this subject, Social Media, Securities Markets, and the Phenomenon of Expressive Trading, to SSRN. The article introduces the emerging phenomenon of expressive trading. It considers some of the challenges and risks expressive trading may pose to issuers, markets, and regulators–as well as to our traditional understanding of market functioning. Ultimately, the article concludes that while innovations like expressive trading “can be disruptive and demand a reimagining of the established order,” market participants, issuers, and regulators would be wise to pause and observe before rushing to adopt defensive strategies or implement reforms. Here’s the abstract:

Commentators have likened the recent surge in social-media-driven (SMD) retail trading in securities such as GameStop to a roller coaster: “You…

With recent studies suggesting that insiders are availing themselves of SEC Rule 10b5-1(c) trading plains to beat the market by trading their own company’s shares based on material non-public information, Congress may be poised to act. In March of 2021, Representative Maxine Waters reintroduced a bill entitled the Promoting Transparent Standards for Corporate Insiders Act. The same bill passed the house in the 116th Congress, but died in the Senate. If passed, the bill would require the SEC to study a number of proposed amendments to 10b5-1(c), report to Congress, and then implement the results of that study through rulemaking. I identified some problems with the bill in my article, Undoing a Deal with the Devil: Some Challenges for Congress’s Proposed Reform of Insider Trading Plans. But if significant reforms are in store for insider trading plans, then insiders may look to other creative “loopholes” that permit them to monetize access to their firms’ material nonpublic information.

Professors Sureyya Burcu Avci, Cindy Schipani, Nejat Seyhun, and Andrew Verstein, have identified “insider giving” as another strategy for hiding insider trading in plain sight. Here’s the abstract for their article, Insider Giving, which is…

We are looking to make up to two tenure-track hires at Mississippi College School of Law. I’m chairing the search committee, so please don’t hesitate to reach out to me directly if you are interested. Here’s the announcement:

Mississippi College School of Law invites applications from entry-level candidates for multiple tenure-track faculty positions expected to begin July 2021. Our search will focus primarily on candidates with an interest in teaching one or more of the following courses: Contracts, Professional Responsibility, Business Associations, Commercial Paper, Antitrust, Wills and Estates, Trusts, Domestic Relations, Criminal Procedure, Evidence, and Trial Advocacy. We seek candidates with a distinguished academic background (having earned a J.D. and/or Ph.D.), a commitment to excellence in teaching, and a demonstrated commitment to scholarly research and publication. We particularly encourage applications from candidates who will enrich the diversity of our faculty. We will consider candidates listed in the AALS-distributed FAR, as well as those who apply directly. Applications should include a cover letter, curriculum vitae, a scholarly research agenda, the names and contact information of three references, and teaching evaluations (if available). Applications should be sent in a single PDF to Professor John P. Anderson, Chair, Faculty Appointments Committee, via email…