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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

When do transactional business lawyers add value to projects?  The literature tells us that transactional business lawyers can help correct information asymmetries and facilitate regulatory arbitrage through their knowledge and skills.  That all seems right.  But how can that message and other conceptions of value be conveyed to first-year law students in less than two hours in a mandatory, S/NC course (i.e., a course in which some–maybe many–of the students do not really want to be there and believe they have better uses for their time)?  Welcome to my world, for today . . . .

Steve Bainbridge has a nice blog post relating to transactional business lawyers that our students are required to read before class.  (Thanks, Steve!)  We will discuss the absence of transactional business lawyers in popular culture, elucidate the value propositions they represent in real life, and work through some business transactional scenarios that illustrate the value (or lack thereof) of involving lawyers in the matter.  I have worked out the class plan with my co-instructor (who cannot be there for this class meeting).  But I am looking for more.

What, in your view, must I ensure that I cover–and how?  Are there videos or charts…

Although I had to miss the American Bar Association’s LLC Institute this past year, it looks like I can still get the benefit of some of the wisdom shared there in written form.  FSU Law Dean Emeritus and Alumni Centennial Professor Don Weidner has posted an article, LLC Default Rules Are Hazardous to Member Liquidity, based on the thoughts he shared as the keynote speaker at that annual event.  The SSRN abstract follows:

This article is based on the author’s Keynote Address at the 2019 LLC Institute sponsored by the American Bar Association’s Business Law Section. It traces and critiques the shift in the default rules in LLC law away from partnership law and toward corporate law, using the Uniform LLC Acts of 1996 and 2006 as exemplars of the national trend. It focuses on two key issues: the removal of liquidity rights, both the right to dissolve and the right to be bought out, and the removal of easy access to member remedies. It argues that, on both key issues, the default rules have moved away from enforcing the presumed intent of small groups of entrepreneurs who form businesses without the benefit of counsel. By…

MLKClipart

[Image courtesy of Clipart Library, http://clipart-library.com/mlk-cliparts/]

Today, on Martin Luther King Jr. Day, I was in the office preparing for the week+ ahead.  I was not the only one there.  Part of me wanted to be elsewhere, publicly supporting the life and legacy of Dr. Martin Luther King Jr.  I did think about him and his work as I toiled away.

Although most of what I was sorting and sifting through today was business law-related, part of what I focused on was committee work for our celebration tomorrow that honors Dr. King.  I chair a committee at UT Law this year that is responsible for hosting one or more Martin Luther King Jr. events every year.  This year, we will have a luncheon and informal table discussions based on facts about Dr. King and quotes from his public appearances and published work.  As I was going through the facts and quotes, I came upon this quote: “No work is insignificant.  All labor that uplifts humanity has dignity and importance and should be undertaken with painstaking excellence.”  (The quote is apparently from Strength to Love, a 1963 book of Dr. King’s sermons.)  Admittedly, it spurred me on and made me…

Each time I teach Advanced Business Associations, I try to engage students on the first day in an exercise that leverages their existing knowledge of business associations law but also introduces new angles and nomenclature.  I assign a reading (this year, on shareholder wealth maximization) and ask each student to write up a brief definition of the concepts of “policy” and “theory” as they may apply to and operate in business associations law. I then ask them to relate their definitions to the reading.

So, the core question before the house in that course on the first day of classes last week effectively was the following: is shareholder wealth maximization legal doctrine, policy, theory, or something else?  We had a wide-ranging discussion on the question, working off three propositions I put on the board.  The class session enabled me to review some concepts from the foundational Business Associations course while also discussing the role of theory and policy in law and lawyering, getting some creative mental juices flowing, and teaching a bit of the new vocabulary they will need for the course.

I decided that it could be beneficial to share with my students the views of others on our effective…

Business Associations is a tough course to teach, whether it is taught in a three-credit-hour or four-credit-hour format.  I have written before (here, here, and here) about the challenges of teaching fiduciary duties in this course.  And I recently posted here and here about the characterization of a classic oversight conundrum as a matter of corporate fiduciary duty law in Delaware.

I just recently finished grading my Business Associations exams from last semester.  They were a good lot overall, but they evidenced several somewhat common errors that seemed to beg for broad dissemination to the class. So, I sent them all a message inviting them to come in and review their exams and highlighting certain things for their attention of a more general nature.  

Today, I offer you that general counsel that I gave to my Business Associations students based on that review of their written final exams.  It is set forth below, absent my introductory and closing remarks.  As you’ll see, some of it relates to substantive law, and some of it relates to exam or other skills.  Perhaps this is of use to those of you who just taught or are about to…

The title of this post is the core question behind a transactional law laboratory that I am co-teaching with my amazing colleague Eric Amarante for a seven-week period starting next week.  The course is being taught to the entire 1L class (intimidating!) in one two-hour class meeting each week.  In essence, the course segments explore, principally through the subjects taught in the first-year curriculum, the nature of transactional business law.  This is our first semester teaching this course, which is a substantially revised version of a course UT Law added to its 1L curriculum three years ago.  We are pretty jazzed up about it–but understandably nervous about how our course plan will “play” with this large group.

Because 1Ls come to transactional business law from various different backgrounds and experiences (including different first-semester law professors), we plan to begin by striving to develop some common ground for our work.  To that end, I am asking for a late Christmas present or early New Year’s gift from all of you: your answer to one or more of the following questions.  How would you define transactional business law?  What are some examples of this kind of practice?  What makes a good transactional…

Earlier today, the CLS Blue Sky Blog published a post written by Adam Sulkowski and me (thanks to Adam for taking the laboring oar on this piece at the outset!) on corporate governance lawyering in the blockchain era–the topic of our recent article published in the Wayne Law Review.  A bit over a month ago, I posted the abstract for that article, together with some related commentary, here on the BLPB.

The CLS Blue Sky Blog includes some observations from our article about law practice in a corporate governance context if and as data storage and usage moves to blockchains.  I want to highlight them by repeating them here.

Our specific recommendations relating to lawyering cover several areas. First, we advise attorneys not only to stay updated about applicable law and relevant interpretations, but also to expand their awareness. Serving clients responsibly will require more familiarity and astuteness with technology and operations. Second, we urge our colleagues in the practice of law – including those involved in the making and administration of laws – to be uncharacteristically forward-looking. It is prudent to be proactive in the contexts of advising firm management and public policymaking. Overall, we highlight that…

This post is dedicated to the students in my Business Associations class, who took their final exam this morning.

Two weeks ago, reflecting on Francis v. United Jersey Bank, 432 A. 2d 814 (N.J. 1981), I asked for commentary on the following question: “How would the Francis case be pleaded, proven, and decided as a breach of duty action under Delaware law?”  That post generated some commentary–both online and in private messages to me.  In this post, I forward an analysis and a related request for commentary.

A number of commentators (including BLPB co-blogger Doug Moll in the online comments to my post) posited that a Caremark oversight claim may be the appropriate claim, and that the cause of action would be for a breach of the duty of care.  I find the latter part of that answer contestable.  Here is my analysis.

I begin by agreeing that Mrs. Pritchard’s abdication of responsibility constitutes a failure to exercise oversight. Under the Delaware Supreme Court’s decision in Stone v. Ritter, I understand that claim to be Caremark claim. (“Caremark articulates the necessary conditions for assessing director oversight liability.”)  I think many, if not most, are also…

BLPB(LastPlatedMeal)

Last night, my husband and I made our last meal from Plated, our favorite home meal delivery kit merchant.  (As readers may recall, I have been a meal kit delivery fan for quite a while.  See here, here, and here.)  Plated announced that it would cease producing meal kits for home delivery last month.  The message I received from Plated, which arrived a full week after pubic announcement had been made of the closure of the home delivery business, was simple.

To our loyal customer,

Just in case you haven’t heard, Plated will be closing its subscription business. Our last boxes will be shipped on November 26, just in time for Thanksgiving. Please log into your account to manage your subscription at any time before that, or contact us if you have any questions.

Plated is part of the Albertsons Companies family of stores, including many of your favorite grocery store brands across the country, like Safeway, Vons, Acme Markets, Jewel-Osco and more.

Over the next year, Albertsons Companies will be moving Plated’s chef-inspired dinners, brunches and other delicious recipes to its family of stores.

You might not live near one of the stores that offers Plated…

Many of us teach Francis v. United Jersey Bank, 432 A. 2d 814 (N.J. 1981), in Business Associations courses as an example of a substantive duty of care case.  The case involves a deceased woman, Lillian Pritchard, who, in her lifetime, did nothing as a corporate director to curb her sons’ conversions of corporate funds.  The court finds she has breached her duty of care to the corporation, stating that:

Mrs. Pritchard was charged with the obligation of basic knowledge and supervision of the business of Pritchard & Baird. Under the circumstances, this obligation included reading and understanding financial statements, and making reasonable attempts at detection and prevention of the illegal conduct of other officers and directors. She had a duty to protect the clients of Pritchard & Baird against policies and practices that would result in the misappropriation of money they had entrusted to the corporation. She breached that duty.

Id. at 826.  In sum:

by virtue of her office, Mrs. Pritchard had the power to prevent the losses sustained by the clients of Pritchard & Baird. With power comes responsibility. She had a duty to deter the depredation of the other insiders, her sons. She breached that…