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Marcia Narine Weldon

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Professor Narine Weldon is the director of the Transactional Skills Program, Faculty Coordinator of the Business Compliance & Sustainability Concentration, Transactional Law Concentration, and a Lecturer in Law.

She earned her law degree, cum laude, from Harvard Law School, and her undergraduate degree, cum laude, in political science and psychology from Columbia University. After graduating, she worked as a law clerk to former Justice Marie Garibaldi of the Supreme Court of New Jersey, a commercial litigator with Cleary, Gottlieb, Steen and Hamilton in New York, an employment lawyer with Morgan, Lewis and Bockius in Miami, and as a Deputy General Counsel, VP of Global Compliance and Business Standards, and Chief Privacy Officer of Ryder, a Fortune 500 Company. In addition to her academic position, she serves as the general counsel of a startup and a nonprofit.  Read More

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In December, 2015, Dow Chemicals Co. and DuPont announced a proposed merger between their two companies.  Under the proposed deal, and with the approval of stockholders and regulators, the two agro/chemical giants will merger their companies in 2016 to create DowDuPont, with an estimated $130 billion value.  Within 18-24 months of closing, DowDuPont will be split into three independent, publicly traded companies .

The proposed “merger of equals” is structured to share power equally between Dow and DuPont and its leadership in the new company.  Dow and DuPont stockholders will each own roughly half of DowDuPont.  There will be 16 members on the new DowDuPont board of directors:  8 from each company.  The roles of Chairman and CEO will be split with Andrew Liveris (Dow) serving as Chairman and Edward Breen (DuPont) as CEO.

Questions of equality and perceived power imbalance arise when we examine the relationships between  (1) corporate boards and activist investors; (2) various shareholders (hedge funds vs. institutional investors vs. retail investors, etc.), and (3) possibly, CEO’s.  

Let’s tackle the first (and tangentially the second) imbalance by talking about hedge funds.  Last year, Trian hedge fund targeted DuPont in a very expensive, public and close proxy…

Two weeks ago I posted about whether small businesses, start ups, and entrepreneurs should consider corporate social responsibility as part of their business (outside of the benefit corporation context). Definitions of CSR vary but for the purpose of this post, I will adopt the US government’s description as:

entail[ing] conduct consistent with applicable laws and internationally recognised standards. Based on the idea that you can do well while doing no harm … a broad concept that focuses on two aspects of the business-society relationship: 1) the positive contribution businesses can make to economic, environmental, and social progress with a view to achieving sustainable development, and 2) avoiding adverse impacts and addressing them when they do occur.

During my presentation at USASBE, I admitted my cynical thoughts about some aspects of CSR, discussed the halo effect, and pointed out some statistics from various sources about consumer attitudes. For example:

  • Over 66% of people say they will pay more for products from a company with “good values”
  • 66% of survey respondents indicated that their perception of company’s CEO affected their perception of the company
  • 90% of US consumers would switch brands to one associated with a cause, assuming comparable price

…

In early January, the Second Circuit Court of Appeals ruled in Cent. Laborers’ Pension Fund v. Dimon to affirm the dismissal of purported shareholder derivative claims alleging that directors of JP Morgan Chase–the primary bankers of Bernard L. Madoff Investment Securities LLC (“BMIS”) for over 20 years–failed  to institute internal controls sufficient to detect Bernard Madoff’s Ponzi scheme.  The suit was dismissed for failures of demand excuse.  Plaintiffs contended that the District Court erred in requiring them to plead that defendants “utterly failed to implement any reporting or information system or controls,” and that instead, they should have been required to plead only defendants’ “utter failure to attempt to assure a reasonable information and reporting system exist[ed].” (emphasis added).  The Second Circuit declined, citing to In re General Motors Co. Derivative Litig., No. CV 9627-VCG, 2015 WL 3958724, at *14–15 (Del. Ch. June 26, 2015), a Chancery Court opinion from earlier this year that dismissed a Caremark/oversight liability claim.  In In re General Motors the Delaware Chancery Court, found that plaintiffs’ allegations that:

[T]he Board did not receive specific types of information do not establish that the Board utterly failed to attempt to assure a reasonable information and reporting system exists, particularly

…

Rob Weber posted on the Columbia Law School Blue Sky Blog an article titled The Comprehensive Capital Analysis and Review and the New Contingency of Bank Dividends, highlighting his recent paper on the topic.

In both the post, and in greater detail in the paper, Rob highlights three aspects of the CCAR program:

[(1)] the significant practical implications of the CCAR for large U.S.-domiciled banks….[(2)] its reliance on discretionary judgments by regulators concerning a hypothetical, uncertain future… [and (3) the CCAR as a] “risk regulation” regime – a designation developed in the environmental, health, and safety (“EHS”) regulatory context that has been underappreciated, underutilized, and undertheorized in the financial regulatory context.

Focusing on this third aspect, Rob states that:

The risk regulation model … confronts head-on the necessity of basing regulatory intervention into otherwise private activity on a discretionary assessment of an uncertain, hypothetical, and conjectural harm. It is no objection that the harm has not yet occurred. The uncertainty of the harm is a feature, not a bug, of the system. 

The post is available here, and the full paper is available here.

-Anne Tucker

This post highlights SIGA Technologies, Inc. v. PharmAthene, Inc., Del. Supr., No. 20, 2015 (Dec. 23, 2015).

At the end of 2015, the Delaware Supreme Court issued an opinion affirming its earlier holding that where parties have agreed to negotiate in good faith, a failure to reach an agreement based upon the bad faith of one party entitles the other party to expectation damages so long as damages can be proven with “reasonable certainty.”

Francis Pileggi, on his excellent Delaware Commercial and Business Litigation blog, provides a succinct summary of the case, available here.  The parties to the suit entered into merger negotiations to develop a smallpox antiviral drug.  Due to the uncertainty of the merger negotiations, the parties also entered into a non-binding license agreement, the terms of which would be finalized if the merger fell through for whatever reason.   While nonbinding, the preliminary license agreement contained detailed financial terms and benchmarks.  When the merger was terminated, SIGA proposed terms for a collaboration that departed from the preliminary license agreement.  The Delaware Supreme Court affirmed the Court of Chancery finding that SIGA’s acted in bad faith.  The question of the case became what damages were due from…

I will miss many of you at AALS this weekend because on Sunday morning I am speaking on a panel on corporate social responsibility in small businesses and startups at a conference for the United States Association for Small Business and Entrepreneurship (USASBE) in San Diego. My co-panelists include: Julian Lange, Governor Craig R. Benson Professor of Entrepreneurship and Public Policy, Associate Professor, Babson College; Megan M. Carpenter, Professor of Law, Co-Director, Center for Law and Intellectual Property, Faculty Director, IP and Technology Law Clinic, Faculty Director, Entrepreneurship Law Clinic, Texas A&M University School of Law; Sandra Malach, Senior Instructor, Entrepreneurship & Innovation, Haskayne School of Business, University of Calgary, Canada, former counsel at the Venture Development Legal Clinic, and previous positions at Stantec Engineering, Bennett Jones Barristers & Solicitors, Enron, and SAIT; and John Tyler, General Counsel and Corporate Secretary, the Ewing Marion Kauffman Foundation. The abstract that we presented to conference organizers stated:

Entrepreneurial and small businesses are increasingly incorporating “people, planet, and profits” into their business models and operations to a degree that goes beyond simply fulfilling the requirements of government regulations. Moreover, it can be argued that expanding a company’s mission to include…

The AALS Section on Business Associations and Law is honoring 13 exemplary mentors for their contributions to scholarship, teaching and the development of new business law scholars.  Those honored were nominated by fellow members of the AALS Section.  The mentors will be recognized at the conclusion of the AALS BA Section meeting on January 8th (1:30-3:15) at the Annual AALS meeting in New York.  Please join me in congratulating our colleagues and thanking them for their contributions to our field.

-Anne Tucker

The AALS Annual meeting starts today in New York.  The full program is available here, and listed below are two Section meeting announcements of particular interest to business law scholars:

Thursday, January 7th from 1:30 pm – 3:15 pm the SECTION ON AGENCY, PARTNERSHIP, LLC’S AND UNINCORPORATED ASSOCIATIONS, COSPONSORED BY TRANSACTIONAL LAW AND SKILLS will meet in the Murray Hill East, Second Floor, New York Hilton Midtown for a program titled:

“Contract is King, But Can It Govern Its Realm?”  

The program will be moderated by Benjamin Means, University of South Carolina School of Law.  Discussants include:

  • Joan M. Heminway, University of Tennessee College of Law
  • Lyman P.Q. Johnson, Washington and Lee University School of Law
  • Mark J. Loewenstein, University of Colorado School of Law
  • Mohsen Manesh, University of Oregon School of Law
  • Sandra K. Miller, Professor, Widener University School of Business Administration, Chester, PA

BLPB hosted an online micro-symposium in advance of the Contract is King meeting.  The wrap up from this robust discussion is available here.

Friday January 8th, from 1:30 pm – 3:15 pm join the SECTION ON BUSINESS ASSOCIATIONS AND LAW
AND ECONOMICS JOINT PROGRAM at the Sutton South, Second Floor, New York Hilton Midtown for a program titled:

 “The Corporate …

Kent Greenfield recently published a provocative article with Democracy on ending Delaware’s dominance over corporate law.  As is Greenfield’s way, he makes a familiar story sound fresh and raises an interesting question.  Is it democratic for a state with less than 1% of the country’s population to have its laws control more than half of the Fortune 500 companies?  Greenfield says no.

Power without accountability has no democratic legitimacy. If companies could choose which state’s environmental, employment, or anti-discrimination law applied to them, we’d be outraged. We should be similarly outraged about Delaware’s dominance in corporate law.

Greenfield suggests two alternative paths for ending Delaware’s dominance.  First:  states could amend their business organization statutes so that the law of the state of incorporation (Delaware) doesn’t govern the corporation, rather the law of the principal place of business would.   Second, and perhaps more radically, nationalize corporate law.  

The undemocratic critique is an astute observation. It takes the debate outside of the “race to the bottom” standard trope and into territory with perhaps more broad public appeal.  Leaving aside the state competition for headquarters, tax base and jobs with solution one and potential political friction with solution two, both solutions address

This is the time of year when many people make New Year’s resolutions, and I suppose that law professors do so as well. I’m taking a break from teaching business associations next semester. Instead, I will teach Business and Human Rights as well as Civil Procedure II. I love Civ Pro II because my twenty years of litigation experience comes in handy when we go through discovery. I focus a lot on ethical issues in civil procedure even though my 1Ls haven’t taken professional responsibility because I know that they get a lot of their context from TV shows like Suits, in which a young “lawyer” (who never went to law school) has a photographic memory and is mentored by a very aggressive senior partner whose ethics generally kick in just in the nick of time. It will also be easy to talk about ethical issues in business and human rights. What are the ethical, moral, financial, and societal implications of operating in countries with no regard for human rights and how should that impact a board’s decision to maximize shareholder value? Can socially-responsible investors really make a difference and when and how should they use their influence? Those…