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Joan Heminway

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Professor Heminway brought nearly 15 years of corporate practice experience to the University of Tennessee College of Law when she joined the faculty in 2000. She practiced transactional business law (working in the areas of public offerings, private placements, mergers, acquisitions, dispositions, and restructurings) in the Boston office of Skadden, Arps, Slate, Meagher & Flom LLP from 1985 through 2000.

She has served as an expert witness and consultant on business entity and finance and federal and state securities law matters and is a frequent academic and continuing legal education presenter on business law issues. Professor Heminway also has represented pro bono clients on political asylum applications, landlord/tenant appeals, social security/disability cases, and not-for-profit incorporations and related business law issues. Read More

Maybe I am just sensitized to these media reports because of my research and teaching, but it seems that the COVID-19 pandemic has sparked new media interest in and engagement with corporate governance issues.  I have received four media calls in the past few weeks–two on background and two for source quotations.  That is an unusual rate of contact for me. Is anyone else noticing this?

Of course, there has been a lot to talk about.  Annual meetings already called and noticed to shareholders needed to move online.  As managers and employees moved out of workplaces to shelter at home, well-worn systems of decision-making and information dissemination–as well as the expectations of others in connection with them–changed or were challenged.  Filing and other deadlines became guidelines . . . .

The two media calls in which I was asked to provide background information related to

  • increased or altered director and legal counsel attentiveness to drafting force majeure clauses and material adverse change/effect definitions in light of what we now know about COVID-19 and its effects and
  • prospects for various kinds of shareholder derivative, direct, and class action litigation in light of COVID-19 and related board decision making.  

I was…

In two earlier posts (here and here), I addressed a number of issues and tips related to the emergency remote online teaching that became the norm for most of us in the law academy back in March.  I finished my “classroom teaching” for the semester two weeks ago.  My online timed exam was given last week.  My take-home project in another class is due this week.  I survived; the students survived.  That may be the best I can say for all that. 

However, a larger, long-term issue looms in the background relating to the online teaching we did–and may continue to do–as a result of COVID-19.  That issue?  Whether our current remote teaching will catalyze a movement in higher education, including legal education, to teach more classes online.  If university and law school budgets continue to contract, administrators may see cost-savings in moving more courses online.

This issue has engendered much debate among educators generally.  I bring it to the fore here for consideration in the business law teaching context.  I have mixed feelings about moving clinical, simulation, and standard doctrinal business law courses online. The reasons vary from course to course.  And there is no doubt much…

Friend-of-the-BLPB Miriam Baer recently posted a draft of her forthcoming book chapter on corporate leniency programs to SSRN.  The abstract follows.

Corporate leniency programs promise putative offenders reduced punishment and fewer regulatory interventions in exchange for the corporation’s credible and authentic commitment to remedy wrongdoing and promptly self-report future violations of law to the requisite authorities.

Because these programs have been devised with multiple goals in mind—i.e., deterring wrongdoing and punishing corporate executives, improving corporate cultural norms, and extending the government’s regulatory reach—it is all but impossible to gauge their “success” objectively. We know that corporations invest significant resources in compliance-related activity and that they do so in order to take advantage of the various benefits promised by leniency regimes. We cannot definitively say, however, how valuable this activity has been in reducing either the incidence or severity of harms associated with corporate misconduct.

Notwithstanding these blind spots, recent developments in the Department of Justice’s stance towards corporate offenders provides valuable insight on the structural design of a leniency program. Message framing, precision of benefit, and the scope and centralization of the entity that administers a leniency program play important roles in how well the program is received by its…

This post again comes to us from friend-of-the BLPB Nadia B. Ahmad.  Her offering is in the tradition of similar posts published by my co-bloggers in the past that focus on videos that can be used in teaching various topics relevant to business law.  I remember this post, for example, by Marcia Narine Weldon on blockchain teaching resources.  Again, thanks to Nadia for contributing to our knowledge and our blog.  I hope that others will be encouraged to offer suggestions in the comments below about other helpful online video resources that they know about.

image from cdnimages.barry.edu

Below is a list of online video resources for business law related topics.

  1. Panic: The Untold Story of the 2008 Financial Crisis(1 hour, 35 minutes)

VICE on HBO looks at factors that led to the 2008 financial crisis and the efforts made by then-Treasury Secretary Henry Paulson, Federal Reserve Bank of New York President Timothy Geithner, and Federal Reserve Chair Ben Bernanke to save the United States from an economic collapse. The feature-length documentary explores the challenges these men faced, as well as the consequences of their decisions.

https://www.youtube.com/watch?v=QozGSS7QY_U

  1. To Catch a Trader

PBS Frontline correspondent Martin Smith goes inside the government’s ongoing…

In my post last week, I mentioned the President’s invocation of the Defense Production Act during the current COVID-19 crisis.  I was immediately curious about this law when news of the President’s March 27 memorandum focused on General Motors and ventilator production hit my radar screen (a/k/a, my laptop, which has effectively become my lap these days).  Surely, it must be unusual for the U.S. government, I thought, to direct the nature, means, and timing of production and supply.  That seems antithetical to the spirit, if not the letter, of U.S. capitalism.  However, the more I read, the less curious and concerned I am, at least for the moment.  Perhaps some of the reporting in this area is more geared to generating a splashy news item than, well, alerting us to something truly unusual or troubling.  Nevertheless, I will make a few foundational points on the Act here.  I may have more to say later.

The Defense Production Act of 1950 can be found in Chapter 55 of Title 50 of the U.S. Code.  The Act recognizes that “the security of the United States is dependent on the ability of the domestic industrial base to supply materials and services…

Please note the following regarding the postponement of the biennial conference at Emory law, previously posted and promoted on the BLPB here:

Due to the uncertain length of the COVID-19 global pandemic, and out of an abundance of caution, we have decided to cancel the Transactional Law and Skills Education Conference currently scheduled for June 5-6, 2020. 

We will re-schedule the Conference and revisit our theme – “Hindsight, Insight, and Foresight: Transactional Law and Skills Education in the 2020s” – when it is appropriate and safe to do so.

If you have already registered for the Conference, we will refund your money.  If you have submitted a proposal or a nomination for the Tina L. Stark Award for Teaching Excellence, you will have the opportunity to resubmit your proposal or nomination when we establish the new Conference date. 

If you have already reserved a room at the Emory Conference Center Hotel please call them at 800.933.6679 to cancel your reservation.  For other Conference-related questions, please contact our Conference Coordinator, Kelli Pittman at kelli.pittman@emory.edu.

During this period of “social distancing,” we are proud to be members of a community of transactional law and skills educators dedicated to excellence.  We look

…

This post comes to us from friend-of-the BLPB Nadia B. Ahmad.  Many thanks to her for this contribution.  Her post follows nicely on the spirit of my “Teaching through the Pandemic” posts, which can be found here and here.  My favorite part may be the bit on “Troubleshooting Life and Expectations.”

image from cdnimages.barry.edu

As I begin this post on Sunday, March 29, 2020, there are currently 674,466 confirmed cases of coronavirus (COVID-19). Immunology and infectious disease researchers are working round the clock with their heads down for a cure and a vaccine, but we have nothing in the near term for an end to this situation. The markets have been a tumbling since January 2020 and spiraling downward since March 2020. Even Brexit and the deceleration of China’s economy could not have expected this downturn in the market.  

On March 12, 2020, I taught my last in person Business Organizations class for the semester. For the first half of the class, I had the students complete a practice essay in Canvas on the business judgment rule. The remainder of the time, I had them join via WebEx on their laptops. In that class, approximately 40 percent of the students

…

COVID-19’s effects on financings and M&A, as well as contracts more generally (as covered here, here, and here among many other places), the rapid adoption of the Coronavirus Act, Relief, and Economic Security Act, a/k/a the “CARES Act” (key terms summarized briefly here and elsewhere), and the President’s invocation of the Defense Production Act have me feeling like I am drinking business law water out of a fire hose this past week.  Anyone else feeling that way?  Whew!

I am still sorting through it all.  I am sure that I will have more to say on some of this as time passes.  However, earlier today, in the process of reading online resources and watching and listening to others talk about the many legal aspects of the current pandemic, I came across this YouTube video, done by one of my former students, a local attorney who works with entrepreneurs, start-ups, and small businesses.

I have not fact-checked this video.  And he jumps in to correct himself.  But what I like about it is that it represents unvarnished, even humorous, boots-on-the-ground legal public service.  He does not want businesses in the local community to miss out or waste time/money shooting in…

Here is the latest on this summer’s annual conference for the Southeastern Association of Law Schools (SEALS), scheduled for July 30 – August 5 at the Marriott Fort Lauderdale, from SEALS Executive Director Russ Weaver:

Dear Deans, Program Committee members and SEALS friends,

First, and foremost, I hope that everyone is staying well and adjusting to the new normal in legal education (with all classes being taught online).

Second, I want to let you know that SEALS’ Board of Trustees is meeting regularly to assess how to move forward on this summer’s meeting. At this point, the situation is uncertain and no decision has been made. However, the Board is meeting regularly and constantly assessing/reassessing the situation. As the situation becomes clearer, we will be making further announcements.

Third, I also want to let you know that, in order to ensure that no attendee is placed in a difficult situation, SEALS has moved the registration cancellation date back to July 1st. In other words, you can cancel your registration and receive a full refund through July 1st. Hopefully, by that time, we will be able to more accurately assess whether our meeting will go forward and in what form.

In…

I write today to share some Zoom connectivity tips that I have accumulated since my first post on this topic.  I spent class time before (and personal time during) Spring Break, which concluded for us yesterday, testing Zoom connections with students–working with them to overcome barriers to clear Internet communications using Zoom.  My collected tips, which I shared with my students yesterday, are pasted in below.  

Some items on my tip list may not be applicable to you and your students.  Most are mentioned elsewhere; and if you already have been teaching using Zoom for a week or more, you may well have already figured all this out in any case.  Nevertheless, I thought it might be useful to share my “top five” here.

1. Close out of open files and applications before you join in on our class meeting.  Allow your computer to focus its activity on our class exclusively.1

2.  If you are sharing bandwidth in your household, ask your household members if they can schedule their usage around your class meetings.  Internet speed issues can have a real effect on the performance of video conferencing software.2

3.  Log in through the campus’s Zoom page…