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Joshua Fershee

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Joshua Fershée, JD, became the 11th dean of the Creighton University School of Law on July 1, 2019. Fershée previously served as associate dean for faculty research and development, professor of law, and director of LLM programs at West Virginia University College of Law.

Earning a bachelor’s degree in social science from Michigan State University in 1995, Fershée began his career in public relations and media outreach before attending the Tulane University School of Law, graduating magna cum laude in 2003 and serving as editor in chief of the Tulane Law Review. He worked in private practice at the firms of Davis Polk & Wardell in New York and Hogan & Hartson, LLP, in Washington, D.C., before joining the legal academy. Read More

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The Investment Company Institute released its annual factbook (summarizing data trends for 2013) in May.  The full report is available for download here, and chapter overviews are available here.  

Like many others, I discovered the ICI factbook when I first started researching mutual funds.  I have cited to the annual reports extensively in three subsequent papers.  Finding this source was, and continues to feel like a stroke of really good luck because it can provide numbers to back an assertion and is a excellent source for describing current market trends.  The graphs are also excellent visual aids for presentations and class (with attribution, of course).

I plan to highlight a few sections of the report over the next several weeks.  This week’s installment will focus on trends of mutual fund investment.  The academic debate about indirect ownership long ago peaked, but the trend hasn’t.  To my mind, understanding the ways in which how people invest in the market (through funds) changes or exerts pressure on our corporate governance model and the role that funds play in our securities market are two of the biggest challenges of corporate law.  More on this topic later.  For now, feast on…

On May 28, 2014, the company owning The Inquirer (Philadelphia), the Daily News and other properties, was sold for $88M in a court-ordered, private, English-style auction.  On petition for dissolution of the company, Vice Chancellor Parson (Delaware) ordered judicial dissolution and the private auction in an opinion issued on April 24, 2014.  

This case presents a fascinating set of facts, unique legal analysis and discussion of LLC management, and the pitfalls of deadlock.  The opinion also discusses the consequence of judicial dissolution versus private agreements (buy outs and dissolution procedures).  It would make a great case for class room discussion, exam fact patterns and casebook inclusions.

Facts. The facts can be quickly summarized as follow:  Interstate General Media LLC (IGM), a Delaware limited liability company, acquired the company (PMN) that owned The Inquirer, Daily News and other properties in 2012 for $55M.  General American Holdings, Inc., a company controlled by George E. Norcross, III held a 54% interest in IGM.  Intertrust GCN LP, a company controlled by Lewis Katz held a 26% interest.  Both Norcross and Katz, as representatives of their respective companies which were joint Managing Members, served on IGM’s 2- member Management Committee.  The Management Committee…

Readers, I was contacted by a securities attorney whom I know from practice regarding a potential pro bono appeal. 

The substantive issue involves securities disclosure violations by an Investment Advisor.  The Investment Advisor didn’t tell clients that he received compensation from a fund in which clients invested resulting in violations of the Investment Advisors Act Sections 206(1) and (2) for material misstatements, Section 207 (false and misleading Form ADP statements), and Section 204 (failure to amend Form ADP). 

The heart of the appeal, however goes to a 180 time period established by Section 929U of Dodd Frank, codified as Section 4E(a) of the Exchange Act ( Download Section 4E(a) Exchange Act), for the SEC to initiate a proceeding after sending a written warning.  The SEC filed the action 7 days late.  The SEC took steps to obtain an internal extension, but did not make a separate complexity determination (statutory extensions are authorized for “complex” cases).  The respondent has unsuccessfully challenged the SEC’s authority to bring the action outside of the 180 window ( Download SEC-Opinion).  At issue is whether the180 day time window is jurisdictionally determinative (meaning outside of it the SEC has no authority to bring…

Midwest Law and Economic Association Conference Call for Papers

Conference Dates: 10/10-11/14

Call for Papers:  Closes June 30.  Submit to  to ngeorgak@iu.edu (Nicholas Georgakopoulos) with “MLEA Submission” in the subject line.  

From the organizers:  “Priority will be given to newer scholars at Midwestern institutions, then newer scholars at any North American institution, then the usual suspects. As in the past, we welcome early drafts.”

I attended this conference several years ago and found it be a great and welcoming group of scholars. I got excellent feedback on an early piece and learned a tremendous amount in 2 short days– you really can’t ask for a better endorsement for a conference, especially as a junior scholar.

-AT

Tomorrow kicks off the 2014 Law & Society Annual meeting in Minneapolis, MN.  Law & Society is a big tent conference that includes legal scholars of all areas, anthropologists, sociologists, economists, and the list goes on and on.  A group of female corporate law scholars, of which I am a part, organizes several corporate-law panels. The result is that we have a mini- business law conference of our own each year.  Below is a preview of the schedule…please join us for any and all panels listed below.

Thursday 5/29

Friday 5/30

Saturday 5/31

8:15-10:00

0575 Corp Governance & Locus of Power

U. St. Thomas MSL 458

Participants: Tamara Belinfanti, Jayne Barnard, Megan Shaner, Elizabeth Noweiki, and Christina Sautter

10:15-12:00

1412 Empirical Examinations of Corporate Law

U. St. Thomas MSL 458

Participants: Elisabeth De Fontenay, Connie Wagner, Lynne Dallas, Diane Dick & Cathy Hwang

12:45-2:30

1468 Theorizing Corp. Law

U. St. Thomas MSL 458

Participants: Elizabeth Pollman, Sarah Haan, Marcia Narine, Charlotte Garden, and Christyne Vachon

1:00 Business Meeting Board Rm 3

2:45-4:30

Roundtable on SEC Authority

View Abstract 2967

Participants: Christyne Vachon, Elizabeth Pollman, Joan Heminway, Donna Nagy, Hilary Allen

1473 Emerging International Questions in

…

Proxy issues are an interesting gauge of current and emerging corporate governance issues.  Even if the proposals don’t pass, they provide a tool to take investors’ and companies’ temperature on controversial issues.  Alliance Advisors issued a detailed report on 2014 proxy season trends and expectations, which is available for download here.  A few highlights are discussed below.

  • Majority Voting. A trend towards majority voting proposals with support from ISS and Vanguard means that many companies will be facing pressure to consider changes to director elections.
  • Declassified Boards.  While the Harvard Law School Shareholder Rights Project has been successful in obtaining declassification of 23 of 13 target companies, the academic and industry debate continues about the efficacy or harm of classified boards.  
  • Board Tenure & Diversity.  These initiatives seek to turn the tide against board compositions that are dominated by white men who hold director positions for extended periods of time.

“ISS’s fall policy survey revealed that 74% of investor respondents consider board service over 10 years to be problematic. Similarly, a recent academic study of S&P 1500 companies found that firm value peaks when average director tenure reaches nine years, and then drops off by as much

…

I am generating my summer reading list–both business and pleasure. At the top of my list is Other People’s Houses, by Jennifer Taub (Vermont Law School), which will be available from Yale Press on May 27th.   The official website for the book describes the project as:

Drawing on wide-ranging experience as a corporate lawyer, investment firm counsel, and scholar of business law and financial market regulation, Taub chronicles how government officials helped bankers inflate the toxic-mortgage-backed housing bubble, then after the bubble burst ignored the plight of millions of homeowners suddenly facing foreclosure.

Focusing new light on the similarities between the savings and loan debacle of the 1980s and the financial crisis in 2008, Taub reveals that in both cases the same reckless banks, operating under different names, received government bailouts, while the same lax regulators overlooked fraud and abuse. Furthermore, in 2013 the situation is essentially unchanged. The author asserts that the 2008 crisis was not just similar to the S&L scandal, it was a severe relapse of the same underlying disease. And despite modest regulatory reforms, the disease remains uncured: top banks remain too big to manage, too big to regulate, and too big to fail.

…

I have three really interesting recent books sitting on my reading pile. (Much of my reading is now on a Kindle, so I guess “reading pile” is no longer appropriate.)

Unfortunately, I am unlikely to make a dent in that “pile” for a bit. Exams and a couple of article deadlines are going to keep me busy in the near future. But, just in case some of you have a little more spare time than me, I wanted to bring these important books to your attention.

Erik F. Gerding, Law Bubbles, and Financial Regulation (Routledge 2014).

Gerding is a law professor at the University of Colorado. He examines the history and causes of market bubbles, with special attention to the crisis of 2007-2008, and attempts to fight bubbles. It’s a fairly expensive book so, with apologies to Erik, I suggest you try to find it in your library if you can. If they don’t have it, do what I did and ask your library to order it. An introductory chapter is available here.

Omri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton University Press 2014).

Ben-Shahar is a law professor…

Steve Bainbridge has an excellent post on the insider trading liability of secondary tippees: where, for example, an insider provides nonpublic information to Tippee #1, and Tippee #1 gives that information to Tippee #2.

He argues that Tippee # 2 should be liable under the Dirks case only if Tippee #2 knew or should have known that the insider provided the information for a personal gain. He’s clearly right under Dirks. Dirks says that a tippee is liable only if he knew or should have known that the insider tipped the information in breach of a fiduciary duty, and Dirks says, that for this purpose, a breach of fiduciary duty requires some sort of personal gain. But, as Professor Bainbridge points out, the lower courts have not consistently got this right.