Blog Posts from Business Law Professors
Two days after the US election, I moderated and participated on a Society of Corporate Compliance and Ethics (SCCE) panel on ESG through the life cycle of a business with Eugenia Maria Di Marco, who focused on startups and international markets, and Ahpaly Coradin, who focused on M&A, private equity, and corporate governance.
I shared these stats with the audience before we delved into the discussion:
The Society of Corporate Compliance and Ethics is hosting a virtual ESG and Compliance Conference on November 7. I love to hear academics talk about these issues at conferences but because I still engage in the practice of law and I teach about compliance, governance, and sustainability, I find the conversations are very different when listening to practitioners.
My panel is titled ESG Due Diligence Across the Corporate Lifecycle From Start-Up to Maturity: The Roles of Compliance, Ethics, Legal, and the Board. My co-panelists, Ahpaly Coradin, Partner, Pierson Ferdinand, and Eugenia di Marco, a startup founder and international legal advisor, and I will focus on:
Date & Time: Thursday, November 7 from 12:45 PM – 1:45 PM central time
Other topics that speakers will discuss include:
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Last month I had the privilege of presenting some of my current work at Bocconi University in Milan, Italy. The promotional poster for the event is included below. All of the workshop presentations (present company excepted) were engaging.
I presented on part of an ongoing research project–a series of papers on environmental, social, and governance (ESG) information. The first two papers on the series, The Materiality of ESG Information: Why It May MatterT, 84 LSU L. Rev. 1365 (2024), and ESG and Insider Trading: Legal and Practical Considerations, 26 U. Penn. J. Bus. L. __ (forthcoming 2024), address the significance of ESG information under the U.S. federal securities laws and the potential and actual involvement of ESG information in insider trading. In Milan, I shared my ideas and preliminary research for a third paper currently titled Corporate Information Compliance in an ESG World. I expect to turn to work on this paper in earnest in the coming months. I will briefly lay out my current thoughts here in the hope that you may have some feedback.
ESG information plays a role in many business operational settings that are invoked in legal compliance and addressed in compliance policies…
Stoll Keenon Ogden PLLC's Corporate Transparency Act ("CTA") guidance, about which I posted back in June, was recently updated. You can find the update here. Hat tip to friend-of-the-BLPB Tom Rutledge from Stoll Keenon Odgen on this development.
I know many are struggling to interpret and apply the CTA. I appreciate the work firms and individual lawyers are undertaking to help enlighten that effort. Please feel free to send me links to guidance you may have seen that you believe to be particularly useful.
Many in the business law world have been following the saga involving the adoption of S.B. 313 by Delaware's General Assembly last week. S.B. 313 adds a new § 122(18) to the General Corporation Law of the State of Delaware (DGCL) that broadly authorizes corporations to enter into free-standing stockholder agreements (not embodied in the corporation's charter) that restrict or eliminate the management authority of the corporation's board of directors. See my blog posts here and here and others cited in them, as well as Ann's post here.
In the floor debate on S.B. 313 last Thursday in the Delaware State House of Representatives, a proponent of the legislation stated that fiduciary duties always trump contracts. That statement deserves some inspection in a number of respects. I offer a few simple reflections here from one, limited perspective.
The historical centrality of corporate director fiduciary duties (which were the fiduciary duties referenced on the House floor) is undeniable. Those who have taken business associations or an advanced business course with me over the years know well that I emphasize in board decision making that the directors’ actions must be both lawful and consistent with their fiduciary duties in order to…
The Corporate Transparency Act is among the most talked about business law topics in the bar communities I frequent. Basic information and guidance can be found in many places, but nuanced treatments are more rare. I offer one of those rare ones up for your review and consideration today.
Entitled The Corporate Transparency Act Is Happening To You and Your Clients: Dealing with the Tsunami, the analysis and guidance comes from Stoll Keenon Ogden PLLC. More specifically, one of the two co-authors is friend-of-the-BLPB Tom Rutledge. His work never disappoints. I urge you to check it out–all 58 pages of it! There is even a short resource list at the end with links to some of the key public guidance. I am grateful for Tom and his colleague, Allison, for putting this together.
Like so many others, I have wanted to say a word about West Palm Beach Firefighters’ Pension Fund v. Moelis & Company, 311 A.3d 809 (Del. Ch. 2024). My angle is a bit different from that of many others. It derives from my 15-year practice background, my 24-year law teaching background, and my 39-year bar service background. It focuses on a doctrinal analysis undertaken through a policy lens. But I want to note here the value of Ann Lipton’s existing posts on Moelis and the related proposed addition of a new § 122(18) to the General Corporation Law of the State of Delaware (DGCL). Her posts can be found here, here, here, and here. (Sorry if I missed one, Ann!) Ben Edwards also published a related post here. They (and others offering commentary that I have read) raise and touch on some of the matters I address here, but not with the same legislative policy focus.
I apologize at the outset for the length of this post. As habitual readers know, long posts are “not my style” as a blogger. This matter is one of relatively urgent legislative importance, however, and I am eager…
ESG greenwashing has been getting attention among legal academics. In Rainbow-Washing, 15 Ne. U. L. Rev. 285 (2023), LMU Law's John Rice explores the
increasingly common, but destructive, practice in which corporations make public-facing statements espousing their support of the LGBTQIA+ community . . . to draw in and retain consumers, investors, employees, and public support, but then either fail to fulfill the promises implicit in those statements or act in contravention to them.
My own forthcoming article in the University of Pennsylvania Journal of Business Law, presented at the November 2023 ILEP-Penn Carey Law symposium honoring Jill Fisch, mentions the increasing notoriety of ESG greenwashing and cites to John's article.
Last week, UVA Law Professor Naomi Cahn called out ESG greenwashing in Forbes, citing to a study to be published in the Journal of Accounting Research that finds "firms’ ESG rhetoric may not match their reality." She suggests that "a meaningful analysis of a firm’s ESG commitment requires much further digging, and ultimately it requires meaningful oversight from outside the ESG community on what should be disclosed and the accuracy of the reports." The article references a forthcoming book coauthored by Cahn, June Carbone (Minnesota…
If you happen to be in Miami or think it's worth it to fly there next week, this is for you. I'll be moderating the panel on regulatory considerations for promoters and influencers and we have student teams competing from all over the country.
Content is king. We live in the golden age where content creators, artists, and influencers wield power and can shift culture. Brands want to collaborate. Creators need to be sophisticated, understand deal points and protect their brand and intellectual property. Miami Law will be the first law school in the country to pull together law students with leading lawyers, influencers, artists, creatives and trendsetters for a negotiation competition and conference.
Shalala Student Center, 1330 Miller Drive, Coral Gables, FL 33146
This competition is ideal for law and business students. THE. TEAMS ARE FINALIZED ALREADY.
Participants will have the chance to represent influencers, brands, artists, fashion companies and other creators in the first ever Counseling Creators: Influencers, Artists and Trendsetters Negotiation Competition
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We just finished our second week of the semester and I’m already exhausted, partly because I just submitted the first draft of a law review article that’s 123 pages with over 600 footnotes on a future-proof framework for AI regulation to the University of Tennessee Journal of Business Law. I should have stuck with my original topic of legal ethics and AI.
But alas, who knew so much would happen in 2023? I certainly didn’t even though I spent the entire year speaking on AI to lawyers, businesspeople, and government officials. So, I decided to change my topic in late November as it became clearer that the EU would finally take action on the EU AI Act and that the Brussels effect would likely take hold requiring other governments and all the big players in the tech space to take notice and sharpen their own agendas.
But I’m one of the lucky ones because although I’m not a techie, I’m a former chief privacy officer, and spend a lot of time thinking about things like data protection and cybersecurity, especially as it relates to AI. And I recently assumed the role of GC of an AI startup. So…
