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

Publications

ICYMI: #corpgov Midweek Roundup (Feb. 26, 2020)

By Benjamin P. Edwards on February 26, 2020

If you have trouble viewing the embedded Tweets, please try a different browser (I recommend Internet Explorer).

“The Dark Side of Corporate Social Responsibility”: “Our results are consistent with the argument that allowing directors to consider stakeholders’ interests makes directors less accountable.” https://t.co/3V522nzqVg #corpgov

— Stefan Padfield (@ProfPadfield) February 24, 2020

“ESG initiatives also contemplate disclosure of a company’s tax policy or ‘approach’ to tax, as well as governance and risk management processes relating to tax.” https://t.co/Xfd4xraFJn

— Stefan Padfield (@ProfPadfield) February 23, 2020

“The Supreme Court’s decision in Cyan, ruling that state courts have concurrent jurisdiction over claims relating to public offerings under the Federal Securities Act of 1933 has dramatically (and negatively) altered the landscape for companies going public today.” https://t.co/CiIcx670uJ

— Stefan Padfield (@ProfPadfield) February 25, 2020

“studies found a significant positive correlation between tax avoidance and institutional ownership, indicating that the emerging ownership structure in the U.S. economy – common ownership – plays an outsized role in instances of corporate tax avoidance” #corpgov https://t.co/6UoCxebPcA

— Stefan Padfield (@ProfPadfield) February 20, 2020

“Certain key ESG risks—notably, risks related to corrupt business practices, privacy and data security, climate change, greenhouse gas emissions, diversity and labor practices—are already being

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ICYMI: #corpgov Midweek Roundup (Feb. 19, 2020)

By Benjamin P. Edwards on February 19, 2020

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“Is this the beginning of the end of climate greenwashing?”: BP “said it would stop funding ‘corporate reputation advertising'” https://t.co/EQAWxvCxI1 #corpgov ht @AnnMLipton @tiffkhsu

— Stefan Padfield (@ProfPadfield) February 15, 2020

“Short selling serves a critical function in the capital markets by encouraging price discovery & preventing the formation of asset bubbles. But recent years have seen a rise in ‘negative activism,’ a novel phenomenon that has flourished in the era of social media ….” #corpgov https://t.co/0HMG3tQWmL

— Stefan Padfield (@ProfPadfield) February 18, 2020

An “emerging trend in financial services is banks’ increasingly common refusal to do business with industries for political reasons.” Does this “contradict the very rationale for the privileges and protections granted to banks in the law”? 13 NYU J.L. & Liberty 66 #corpgov

— Stefan Padfield (@ProfPadfield) February 16, 2020

“AI is coming for all professions including that
of board directors.” #corpgov https://t.co/UiwmKbe2KI

— Stefan Padfield (@ProfPadfield) February 13, 2020

Really? “eliminating the ‘personal benefit’ requirement and replacing it with a ‘wrongfulness’ standard can help eliminate the uncertainty” https://t.co/m00DyyIQBG

— Stefan Padfield (@ProfPadfield) February 13, 2020

ICYMI: #corpgov Midweek Roundup (Feb. 12, 2020)

By Benjamin P. Edwards on February 12, 2020

If you have trouble viewing the embedded Tweets, try a different browser (I recommend Internet Explorer).

“BlackRock ‘voted in favour of CEO Joe Kaeser and the Siemens board. This clearly exposes Larry Fink’s pledges to promote sustainability as blunt greenwashing,’ Greenpeace Germany said in a statement.” https://t.co/8Xa7QsXnKH #corpgov

— Stefan Padfield (@ProfPadfield) February 7, 2020

“Although securities regulations tend to be generally harmonized, this Article sheds light on significant differences in the rules governing the definition of what is material information with regard to unfolding future events.” 88 U. Cin. L. Rev. 67 #corpgov

— Stefan Padfield (@ProfPadfield) February 8, 2020

“J&J … had tried to keep [CEO] Mr. Gorsky from testifying, arguing that he had no involvement”; “judge ordered him to testify, ruling that Mr. Gorsky’s public statements about J&J’s talc powders made his testimony relevant to the case” https://t.co/tXt6tmOYne #corpgov

— Stefan Padfield (@ProfPadfield) February 7, 2020

BlackRock’s Investment Stewardship team voting bulletin on Siemens. https://t.co/SWWgiDcG1m #corpgov

— Stefan Padfield (@ProfPadfield) February 7, 2020

“Just as limited liability partitions off the assets of a firm’s owners from the assets of the firm itself, agency law partitions off the assets of a firm’s managers from the firm’s own assets.”

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ICYMI: #corpgov Midweek Roundup (Feb. 5, 2020)

By Benjamin P. Edwards on February 5, 2020

If you have trouble viewing the embedded Tweets, try a different browser (I recommend Internet Explorer).

.@AkronLaw student Matt Brown’s Law Review note “Masterpiece Cakeshop; A Formula for Legislative Accommodations of Religion” received 2d place honors in the 2019 Judge John R. Brown Award for Excellence in Legal Writing competition. https://t.co/JBcV8Dafiz #corpgov

— Stefan Padfield (@ProfPadfield) January 30, 2020

“‘We’re going to stand up for free expression,’ Zuckerberg said. ‘It’s unfortunate that this is such a controversial thing.'” https://t.co/yXmBGyD5iQ #corpgov ht @Prof_Bruckner cc @ProfBainbridge @greg_shill

— Stefan Padfield (@ProfPadfield) February 2, 2020

.@AkronLaw Federalist Society and American Constitution Society are hosting a debate on “Free Speech and Free Exercise after Obergefell” on February 12th at 12:15. https://t.co/3PilSAC3mx

— Stefan Padfield (@ProfPadfield) February 4, 2020

Justice Ruth Bader Ginsberg on her friendship with Justice Scalia: “If our friendship encourages others to appreciate that some very good people have ideas with which we disagree … I will be overjoyed, as I am confident Justice Scalia would be.” https://t.co/PWFVnBzUeG

— Stefan Padfield (@ProfPadfield) January 30, 2020

.@StephenFDiamond on insider trading: “A return to genuine ‘first principles’ generated by the nature of capitalism … allows for more powerful insights into the

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ICYMI: #corpgov Midweek Roundup (Jan. 29, 2020)

By Benjamin P. Edwards on January 29, 2020

“If Goldman’s 1 explicit underwriting standard is ‘you need to have a woman on your board,’ then … why not have 2 underwriting standards? If you think there are other things that all companies should do” why not “have them required by Goldman?” https://t.co/C5QOsNN73d #corpgov

— Stefan Padfield (@ProfPadfield) January 24, 2020

“new development in US antitrust enforcement … could pose … hurdle to companies seeking regulatory approval for mergers”; “the new inquiry shows investigators are going further to determine the amount of influence of institutional investors” https://t.co/KPMpU68FkP #corpgov

— Stefan Padfield (@ProfPadfield) January 24, 2020

1/2: “The boss of what is one of Germany’s biggest firms dismissed the efforts by protesters to force Siemens to change its mind: ‘The impact is zero, there has not been any movement on the share price.'” https://t.co/llLzc94a3i #corpgov

— Stefan Padfield (@ProfPadfield) January 24, 2020

“we found little or no evidence of a relationship between ESG and risk-adjusted returns” https://t.co/JS1HtetIBN

— Stefan Padfield (@ProfPadfield) January 28, 2020

“Peloton’s … fundamental pitch: That … it’s a tech company” is a “premise that has powered many”: “Uber is a tech company, not a taxi company; WeWork’s a tech company, not a real-estate company; Tesla’s a

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ICYMI: #corpgov Midweek Roundup (Jan. 22, 2020)

By Benjamin P. Edwards on January 22, 2020

You might detect a theme.

I actually might not need the article now that I can just cite this tweet for the proposition — but just in case: https://t.co/Atr5Wty4Mq

— Stefan Padfield (@ProfPadfield) January 22, 2020

Have platforms of funds/advisors become indistinguishable from Dems? Have proxy advisory firms been operating w/ an ulterior motive – “to advance their liberal progressive policies over the financial interests of shareholders”? https://t.co/2dRhFgklgk #corpgov ht @ProfBainbridge

— Stefan Padfield (@ProfPadfield) January 18, 2020

“BlackRock will now request its investee companies to disclose in accordance with SASB’s [Sustainability Accounting Standards Board] (or similar) and TCFD’s [Task Force on Climate-related Financial Disclosures] guidelines by year-end.” https://t.co/zLj5gLO3ev

— Stefan Padfield (@ProfPadfield) January 18, 2020

Is Larry Fink turning into Henry Ford (i.e., trying to clean up his legacy by disavowing profit before exiting stage left)? “BlackRock CEO Larry Fink was met by protesters at an October black-tie gala at the Museum of Modern Art, where he sits on the board.” #corpgov https://t.co/saCoAGL70d

— Stefan Padfield (@ProfPadfield) January 18, 2020

“Fink has taken flak in … charitable-board circles for being … not enough of a social activist. But … until the rhetoric evolves to …. what costs will be

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Sharfman on Exemptions from the Proxy Rules for Proxy Voting Advice

By Benjamin P. Edwards on January 15, 2020

The following comes to us from Bernard S. Sharfman. It is a copy of the comment letter (without footnotes) that he recently sent to the SEC in support of the Amendments to Exemptions from the Proxy Rules for Proxy Voting Advice. (The comment letter with footnotes can be found here.) An introductory excerpt is followed, after the break, by the full letter. Please excuse any formatting errors generated by my poor copy-and-paste skills.

Part I of this letter will describe the collective action problem that is at the heart of shareholder voting. Part II will discuss the problems that this collective action causes for the voting recommendations of proxy advisors, including the creation of a resource constrained business environment. Part III discusses how proxy advisors deal with such a business environment. Part IV will discuss how the market for voting recommendations is an example of a market failure, requiring the SEC to pursue regulatory action to mitigate the harm caused by two significant negative externalities. Part V will discuss how the collective action problem of shareholder voting and the market failure impacts corporate governance. Part VI will discuss the value of the proposed amendments.

ICYMI: #corpgov Midweek Roundup (Jan. 8, 2020)

By Benjamin P. Edwards on January 8, 2020

GM’s Mary Barra, AT&T’s Randall Stephenson, Amazon’s Jeff Bezos, and GE’s Larry Culp all signed on to the Business Roundtable’s “fundamental commitment to all of our stakeholders” but then …. https://t.co/oQqto0DqGG #corpgov ht @VonyaGlobal

— Stefan Padfield (@ProfPadfield) January 2, 2020

“‘Compelled disclosure of affiliation w/ groups engaged in advocacy,’ the Court ruled in a case in which AL tried to force the NAACP to disclose the names & addresses of its supporters, ‘may constitute as effective a restraint on freedom of association’ as .. censorship” #corpgov https://t.co/hZfRl5bihO

— Stefan Padfield (@ProfPadfield) January 7, 2020

“While in common lore the exit strategy is an initial public offering (IPO), in practice IPOs are increasingly rare. Most companies that succeed instead exit the market by merging with an existing firm.” https://t.co/bFxuQp30RM #corpgov

— Stefan Padfield (@ProfPadfield) January 8, 2020

“Court finds parties’ contractual agreement to submit questions of arbitrability to an arbitrator does not preclude judicial authority to enjoin arbitration of claims that collaterally attack a prior arbitration award.” #corpgov https://t.co/A2WBmbEQqI

— Stefan Padfield (@ProfPadfield) January 3, 2020

“Although benefit corps were developed to overcome the SH wealth max norm, it is not fair to say that they also overcome SH primacy.

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ICYMI: #corpgov Midweek Roundup (Jan. 1, 2020)

By Benjamin P. Edwards on January 1, 2020

Boilermakers v. Chevron (2013)
Corwin (2015)
Trulia (2016)
DFC Global (2017)
Akorn (2018)#CorpGov https://t.co/FQ5t1AZd0N

— Stefan Padfield (@ProfPadfield) December 31, 2019

“Both sides enlist the First Amendment … [and] talk about freedom of speech and the marketplace of ideas. But the two sides draw diametrically opposed conclusions about a Rhode Island campaign finance law … requiring the disclosure of big donors” #corpgov https://t.co/xnLJeAsF5T

— Stefan Padfield (@ProfPadfield) December 28, 2019

“results suggest that the trading advantage of institutional investors stems more from their ability to process information in a very timely manner than from their ability to predict (or to obtain) private information about corporate events ahead of their public release” https://t.co/UzTixlDU9X

— Stefan Padfield (@ProfPadfield) December 27, 2019

“Delaware case law ‘contains little support for distinctions’ between the clause ‘commercially reasonable efforts’ and the clause ‘reasonably best efforts.'”; imposes “obligations to take all reasonable steps to solve problems and consummate the transaction” #corpgov https://t.co/6v0OZK1LEQ

— Stefan Padfield (@ProfPadfield) December 29, 2019

Things that make you go hmm: “to preserve capitalism as we now know it shareholder primacy must be abandoned” #corpgov https://t.co/Jic6z2w5tp

— Stefan Padfield (@ProfPadfield) December 30, 2019

ICYMI: #corpgov Midweek Roundup (Dec. 25, 2019)

By Benjamin P. Edwards on December 25, 2019

“New laws designed to foster and govern social enterprises are propagating throughout the world…. This article identifies over 40 state initiatives across 30 countries to distinguish this international movement.” 36 Windsor Y.B. Access to Just. 84 #corpgov #socent

— Stefan Padfield (@ProfPadfield) December 22, 2019

“The Akorn decision … found that remediation costs that equated to … 21% of the target’s … equity value … ‘would be ‘material ….’’ For the reasons explained below, Boston Scientific failed to demonstrate any material decline in Channel’s value.” 2019 WL 6896462 #corpgov https://t.co/89ffM2eOTn

— Stefan Padfield (@ProfPadfield) December 19, 2019

“Janus counsels against forcing someone to associate with an organization that takes positions on ‘controversial public issues.’ Bar associations frequently take controversial positions ….” https://t.co/0hXFlVDbii

— Stefan Padfield (@ProfPadfield) December 20, 2019

“well over a hundred papers investigate the effects of state anti-takeover statutes or of state universal demand laws. How much should we trust the estimates of these papers? The short answer is: not much.” https://t.co/vyHHRwMAwg

— Stefan Padfield (@ProfPadfield) December 19, 2019

“While characterizing the law in this area as ‘murky,’ the court appears to reaffirm the existing law that, generally, a stockholder will have a “proper purpose” only if the

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Business Law Prof Blog

Business Law Prof Blog

Benjamin P. Edwards

ICYMI: #corpgov Midweek Roundup (Feb. 26, 2020)

ICYMI: #corpgov Midweek Roundup (Feb. 19, 2020)

ICYMI: #corpgov Midweek Roundup (Feb. 12, 2020)

ICYMI: #corpgov Midweek Roundup (Feb. 5, 2020)

ICYMI: #corpgov Midweek Roundup (Jan. 29, 2020)

ICYMI: #corpgov Midweek Roundup (Jan. 22, 2020)

Sharfman on Exemptions from the Proxy Rules for Proxy Voting Advice

ICYMI: #corpgov Midweek Roundup (Jan. 8, 2020)

ICYMI: #corpgov Midweek Roundup (Jan. 1, 2020)

ICYMI: #corpgov Midweek Roundup (Dec. 25, 2019)

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