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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

On Friday, Bill Haslam, the Governor of the State of Tennessee, spoke at a session sponsored by the C. Warren Neel Corporate Governance Center on The University of Tennessee’s Knoxville campus.  He is our former city mayor and a hometown favorite for many.  I always enjoy his talks.

His talk on Friday focused on how Tennessee is attracting businesses and jobs and how education–including higher education–plays a role.  But before he honed in on that topic, he asked an intriguing, albeit basic, question that operates on theoretical, political, and practical planes.  That question: How is government similar to and different from private enterprise?  He wanted audience participation.  I waited to see how everyone would react.  He got lots of good answers that cut across economics, management, finance, and governance.

Provocatively (at least for me), he characterized his gubernatorial role as akin to the role of a chief executive officer in a corporation.  He has served as a corporate manager (president of his family’s firm and the CEO of a division of another firm), and his vision of the state gubernatorial role is clearly framed by that experience.  He actually called the legislature his “board of directors” in his role as governor. 

Well, after that analogy, I just had to contribute to the discussion with a comment.  I endorsed the governor’s view of his position, but I also noted that the executive, as the head of a separate branch of a government of three branches, has power independent of the power afforded to the legislature.  That is when things got interesting, at least for me.

Thanks for your informative post, Anne.  I started drafting this post as a comment to yours, and then I realized it was its own post.   [sigh]

It seems to me that the U.S. Department of HHS and any commentators must grapple with what has been a difficult, fact-based question in determining how to define “closely held” to effectuate the Supreme Court’s intent in as expressed in the Hobby Lobby opinion.  That question?  What “control” means in this context.

The Court said in the Hobby Lobby opinion:  “The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.”  More specifically, the Court notes that the Hahns (owners of shares in Conestoga) “control its board of directors and hold all of its voting shares” and notes that Hobby Lobby and Mardel “remain closely held, and David, Barbara, and their children retain exclusive control of both companies.”  [Emphasis has been added by me in each quote.]

The definition of “control” primarily has been a question of fact in business law, making the task of defining it here somewhat difficult.  Some questions and considerations to grapple with are set forth below the fold.  I am sure that others can come up with more.  I am posting these as a way of getting the collective juices flowing.

This follows on Ann’s post yesterday on Gender and Crowdfunding.  Ann, so glad you’ve joined me and Steve Bradford as securities crowdfunding watchers!  Delighted to have you in that informal, somewhat disgruntled “club.”

I have been interested in whether securities crowdfunding will democratize business finance.  (I note here that Steve Bradford’s comment to Ann’s post raises the broader question of crowdfunding’s ability to better engage underrepresented populations in general.)  My interest has, however, been more on the investor (backer) side of the crowdfunding equation than on the business (entrepreneur) side.  

As Ann notes, given the delay in the Securities and Exchange Commission (SEC) rulemaking under Title III of the Jumpstart Our Business Startups (JOBS) Act, the information on gender and crowdfunding that we have so far comes from other types of crowdfunding.  This information may or may not map well to markets in securities crowdfunding.  But it’s still worth reviewing the information that we do have.

OK.  So, I am stretching a bit here.  But yoga may be considered a sport, athletic clothing is a kind of fashion, and securities fraud prohibitions and corporate director fiduciary duty involve law.  So, I stand by my blog title in the face of any criticism that may follow this post.

I do yoga four times a week when I am not traveling.  I also work out, sometimes on days when I am not doing yoga.  So, I have a fair number of pieces of yoga wear and other athletic clothing.  This means that I get regular mail and email solicitations from the firms that purvey these clothing items.

I recently received a catalog from one of my favorite athletic clothing brands, Sweaty Betty, which I discovered originally when I was teaching in Cambridge, England in one of our study abroad programs a few years ago.  I noticed, with some amusement, that the new catalog harps on the opacity of the firm’s yoga bottoms or trousers (as the British like to call them).  The website does the same–“100% opaque” labels abound.  As an astute consumer and securities lawyer, I immediately jumped to the conclusion, whether…

THE CENTER FOR LAW, ECONOMICS & FINANCE (C-LEAF)

AT

THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

 

Fifth Annual JUNIOR FACULTY BUSINESS AND FINANCIAL LAW WORKSHOP

AND JUNIOR FACULTY SCHOLARSHIP PRIZES

 

Sponsored by Schulte Roth & Zabel LLP

CALL FOR PAPERS

The Center for Law, Economics & Finance (C-LEAF) at The George Washington University Law School is pleased to announce its fifth annual Junior Faculty Business and Financial Law Workshop and Junior Faculty Scholarship Prizes.  The Workshop and Prizes are sponsored by Schulte Roth & Zabel LLP. The Workshop will be held on February 27-28, 2015 at GW Law School in Washington, DC.

The Workshop supports and recognizes the work of young legal scholars in accounting, banking, bankruptcy, corporations, economics, finance and securities, while promoting interaction among them and selected senior faculty and practitioners. By providing a forum for the exchange of creative ideas in these areas, C-LEAF also aims to encourage new and innovative scholarship.

Approximately ten papers will be chosen from those submitted for presentation at the Workshop pursuant to this Call for Papers. At the…

Ah, yes . . . .  The public/private divide . . . .  My co-blogger Ann Lipton fairly begged me to write about this topic today, given that she had to miss the discussion session on the subject (entitled “Does The Public/Private Divide In Federal Securities Regulation Make Sense?”) convened by me and Michael Guttentag at last week’s Southeastern Association of Law Schools (SEALS) annual conference.  Arm-twisting aside, however, this is a topic of current interest (and actively engaged scholarship) for me.

The discussion session allowed a bunch of our corporate and securities law colleagues to explore historical, present, and projected future distinctions between public and private offerings and public and private companies/firms.  The discussion ranged widely, as did the short papers submitted by the participants.  Some topics of conversation were oriented in part toward corporate governance concerns–comments from Lisa Fairfax on linkages to shareholder empowerment and from Jill Fisch on executive compensation in the post-Dodd-Frank public environment come to mind in this regard.  Other discussion topics engaged securities regulation more centrally, including by, e.g., questioning the coherence of the rationale underlying the Section 12(g) and 15(d) reporting thresholds (with interesting commentary from Amanda Rose and Usha Rodrigues); offering…

Many of us are in the process of (perhaps frantically) wrapping up our summer scholarly activity and re-focusing our primary professional attention on teaching.  As always, I am using the annual conference sponsored by the Southeastern Association of Law Schools (SEALS) to help me make this transition.  Yesterday, I attended a discussion session led by law school associate deans and faculty who focus on faculty development–scholarship and teaching.  It was an incredibly interesting and wide-ranging discussion.

Part of the conversation centered around summer research stipends, a topic that has been in the national news a bit over the past few years.  Various participants in the discussion session addressed, each from his or her individual institution’s vantage point, the reasons for/purposes of summer research stipends (which not every school represented at the session currently has) and how summer stipends actually work or should/could optimally work.  I was surprised by the variations in approaches and ideas from school to school.  While the individual models are too numerous to capture here, I summarize below the fold some of the top-level points made and thoughts shared during the discussion.

As many readers (and all of my friends) know, I am a bit of a sports fan.  Having been a college athlete (field hockey, at Brown University, for trivia buffs), I focus most of my attention on college games.  I even served on The University of Tennessee’s Athletics Board for a few years.  But my Dad and I used to watch professional football and baseball a lot together when I was a kid (still do, when we are in the same place at the right time), so I also maintain a casual interest in professional sports.

I also have an interest in fashion, especially women’s fashion (maybe less well known, except by close friends).  I have friends in the industry and find aspects of it truly fascinating.  I even used to subscribe to Women’s Wear Daily, the fashion industry trade rag.  I am the faculty advisor to the College of Law’s Fashion and Business (FAB) Law student organization.

This personal background is prelude to my interest in two current events stories that I see as parallels.  I am trying to sort them through on a number of levels. Maybe you can help.  Here are the top lines of each story.

  • Last Thursday, the National Football League (NFL) suspended Baltimore Ravens running back Ray Rice for two games, fined him $58,000 dollars, and asked him to seek counseling after its investigation of an incident relating to a video in which Rice was depicted dragging his then-fiance, now wife, by her hair after punching her in the face (allegedly rendering her unconscious).
  • The very same day, American Apparel (AA) announced a new slate of directors who will assume positions on the AA board in early August as a result of investor intervention and a boardroom blood bath following on lagging profits and continuing investigations of allegations of sexual misconduct (most of it, as I understand it, not new news) against AA’s founder and former CEO and director, Dov Charney, whose management roles at the firm were suspended by the board back in June.

As I promised on Friday, I am posting a question and answer segment with Larry Cunningham, author of the forthcoming book: Berkshire Beyond Buffett: The Enduring Value of Values.  Larry will be guest blogging with us this week to talk more about the interesting findings he shares in the book and their implications for business and the research, teaching, and practice of business law.

Q:  Why did you write this book and what did you find?

A:  Widespread praise for Warren Buffett has become paradoxical: Buffett set out to build a permanent institution at Berkshire Hathaway and yet even great admirers, such as Steven Davidoff, doubt that the company can survive without him. I found that viewpoint intriguing since companies who are identified with iconic founders often have trouble after a succession, as Tom Lin has written.  I wanted to investigate how the situation will look for Berkshire after Buffett leaves the scene, collapse and breakup or prosperity coupled with continued expansion? What I found was a culture so distinctive and strong, that the company’s future is bright well beyond Buffett.

Q:  How did you reach that conclusion?  What was your research method?

A:  I focused on Berkshire’s fifty…

Cross-post alert!

At the risk of overdoing what may have been a good thing, I contributed a disclosure-oriented post to the Hobby Lobby symposium on The Conglomerate earlier today.  It includes new information about a U.S. Department of Labor Q&A posted yesterday, among other things.  Enjoy or not, as you so please . . . .