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This year’s symposium, titled Navigating the Relationship Between the Administrative State and Emerging Technology, will focus on the evolving regulatory frameworks around emerging technologies like digital assets and artificial intelligence (AI). These technologies are rapidly transforming the way individuals and businesses engage in commerce, interact socially, and innovate. These advancements, however, raise profound questions about the applicability of existing regulatory structures. The symposium will bring together leading experts to discuss how the administrative state can balance the protection of innovation with the mitigation of risks associated with these technologies, while ensuring that laws evolve to meet the challenges of the future.

We are thrilled to welcome Michele Korver, Head of Regulatory & Operating Partner at a16z crypto, to deliver the opening keynote. Michele’s wealth of experience in both the public and private sectors will provide invaluable insights into the state of digital asset regulation. The event will conclude with a thought-provoking closing address, offering reflections on the key discussions of the day.

Welcome and Opening Remarks (1:15 PM – 1:25 PM)

The symposium will begin with brief welcoming remarks, setting the stage for an afternoon of in-depth discussions and exploring the complexities surrounding the intersection of technology, law, and…

I managed to hold off for a few weeks–and then for the past 24-48 hours (or so)–in reporting back on the current state of the Corporate Transparency Act (CTA). But the U.S. Supreme Court has again spoken, and so it is time to do an update (since little more is likely to happen over the weekend). FinCEN, the U.S. Financial Crimes Enforcement Network, summarizes the current state of play, an update from my post earlier this month.

On January 23, 2025, the Supreme Court granted the government’s motion to stay a nationwide injunction issued by a federal judge in Texas (Texas Top Cop Shop, Inc. v. McHenry—formerly, Texas Top Cop Shop v. Garland). As a separate nationwide order issued by a different federal judge in Texas (Smith v. U.S. Department of the Treasury) still remains in place, reporting companies are not currently required to file beneficial ownership information with FinCEN despite the Supreme Court’s action in Texas Top Cop Shop. Reporting companies also are not subject to liability if they fail to file this information while the Smith order remains in force. However, reporting companies may continue to voluntarily submit beneficial ownership information reports.

And so it…

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:

  • In July 2024, SHRM, the
    • …

     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:

    •  how to measure and prioritize ESG factors at different stages of a company's life cycle, according to a company's industry, and technology use.
    •  how ESG creates value in M&A  beyond risk mitigation and learn the impact of ESG on target selection, valuation, and integration.
    • board and management responsibilities in overseeing and managing ESG-related risks, particularly in light of Caremark duties and Marchand.

    Date & Time: Thursday, November 7 from 12:45 PM – 1:45 PM central time

    Other topics that speakers will discuss include:

    • Supply chains and European due diligence 
    • Global regulatory and legislative developments
    • Sustainable governance

    …

    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…