Today, I’d planned to blog about what their early 2019 speeches suggest is on the minds of policymakers at U.S. financial regulatory agencies as the New Year begins.  I decided to wait a few weeks to collect more data.  However, my initial research included a visit to the Federal Reserve Bank of Minneapolis (FRBM) site and led me to the subject of today’s post.

Last week, Neel Kashkari, the President and CEO of the FRBM, participated in a live Intelligence Squared U.S. (IQ2US) debate (in partnership with Foreign Affairs) on whether Ten Years After the Global Financial Crisis, the System is Safer (Resolution).  According to its website, IQ2US has now held 160 debates with 500 debaters.  Before a debate, the audience votes “yes,” “no,” or “undecided” about a resolution.  After three rounds of debate (opening statements, responses and audience questions, and closing statements), the audience votes again.  Each debate team argues for or against the resolution of the day.  The team whose numbers have increased the most in the final vote wins. 

Kashkari, in addition to debate partner Jason Furman, a top economic adviser to President Obama and former Chairman of the Council of Economic Advisers, debated…

Forgive me for yet another foray into the vagaries of Tesla, but the company provides your humble blogger with an endless supply of discussion material.  (My own prior posts on disparate Tesla-related subjects can be found here, here, and here; Joan Heminway also commented on Tesla here.)

Earlier this month, it was reported that Elon Musk retweeted a Forbes report that Tesla had outsold all other US luxury car makers, only to delete the tweet when it turned out the report was inaccurate (it had compared Tesla’s global sales with US sales by other car manufacturers).  Such was the creation of a classroom hypothetical if I ever saw one.

I have so many questions:

1.    Why did the Chief Executive Officer of Tesla not realize that the sales report was inaccurate, and if he did realize it, did he retweet anyway in hopes that no one would spot the error?

2.    If Musk was aware the report was false, could he be liable for having made a false statement in connection with a securities transaction in violation of Section 10(b)?

A.  We might ask whether Musk “made” a statement at all.  As I’ve previously posted here and here…

By now, almost everyone has seen the new Gillette ad criticizing toxic masculinity and urging men to be better men:

Reactions range from offense at Gillette’s corporate moralizing to genuine appreciation and celebration.  Slate captured the corporate logic effectively:

The wide range of reactions was, of course, the point: to create a conversation starter. To rile people and get them talking about Gillette. To increase brand recognition amid Gillette’s declining market share and, ultimately, make Procter & Gamble more money. Much of the criticism of the ad has revolved around the company’s motives.

Yet P&G can have financial incentives and still make an ad worth lauding. These two things are not mutually exclusive. And this ad is a step in the right direction, because the more we collectively hear the message that sexual harassment is unacceptable, that bullying is wrong, and that helping victims is noble, the more this message will shape our—and our children’s—everyday choices. We need to get messages like this from our leaders, teachers, parents—andfrom television shows, movies, books, songs, and advertisements. Cultural shifts happen when every aspect of culture embraces and normalizes a change.

Some business law professors commenting on Twitter…

“The disintegration of securities trading … is arguably reducing market quality for … issuers, investors, regulators and the taxpayers … while increasing control of the largest institutions over access to the market.”
44 J. Corp. L. 29 #corpgov

— Stefan Padfield (@ProfPadfield) January 13, 2019

“corporate law’s requirement of lawful conduct embeds particular social values into the corporate code”
Elizabeth Pollman, Corporate Disobedience, 68 Duke L.J. 709 (2019) #corpgov

— Stefan Padfield (@ProfPadfield) January 13, 2019

Had Kavanaugh replaced Kennedy before Masterpiece Cakeshop, would the Court “likely have decided more broadly that free exercise trumps any generally applicable obligation under a mere state statute”?
82 Alb. L. Rev. 121 #corpgov

— Stefan Padfield (@ProfPadfield) January 13, 2019

‘Built into the structure of federal employment discrimination law are several openings for customer preferences to provide employer defenses to what would otherwise likely be actionable discrimination.” 97 N.C. L. Rev. 91 #corpgov

— Stefan Padfield (@ProfPadfield) January 13, 2019

“Volkswagen emissions scandal as an example of cultural misalignment where the company and individual employees below board level … have been … found liable despite … rhetoric about the directors’ responsibility for corporate culture.” https://t.co/dQP1o2rqw7 #corpgov

— Stefan Padfield (@ProfPadfield) January 11, 2019

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As the New Year begins, are you thinking about the conferences you’ll attend in 2019?   

The Academy of Legal Studies in Business has a great annual conference in early August.  This year it’s in Montreal, Quebec, August 6-10.  I’ve never been to Montreal and can’t wait! 

The Academy also has a number of regional conferences.  Check out all the options (if I missed one, send me an email)!

Canadian ALSB Annual Conference May 2-4, 2019 (Halifax, Nova Scotia)

Great Lakes ALSB, October 11-12, 2019 (Frankenmuth, Michigan)

Mid-Atlantic Academy of Legal Studies in Business, March 29-30, 2019 (Reading, Pennsylvania)

Mid-West Academy of Legal Studies in Business, March 27-29, 2019 (Chicago, Illinois)

North Atlantic Regional Business Law Association Annual Conference, April 6, 2019 (Boston, Massachusetts)

North East Academy of Legal Studies in Business, May 3-5, 2019 (Cape May, New Jersey)

Pacific Northwest Academy of Legal Studies in Business, April 11-13, 2019 (Seattle, Washington)

Pacific Southwest Academy of Legal Studies in Business, February 14-17, 2019 (Palm Springs, California)

Rocky Mountain Academy of Legal Studies in Business [check for 2019 updates]

Southern Academy of Legal Studies in Business, February 28 – March2, 2019 (San

The Supreme Court just agreed to hear Emulex Corp. v. Varjabedian, which presents something of a puzzle for merger law and policy.

In brief, Emulex agreed to be acquired by Avago in a friendly tender offer under DGCL 251(h).  When Emulex issued its Schedule 14D-9 recommending that shareholders tender their shares, it failed to mention that its bankers found the premium was on the low side as compared to similar deals.  The plaintiffs sued, alleging that the omission rendered Emulex’s recommendations misleading in violation of Exchange Act Section 14(e), which prohibits false statements in connection with tender offers.  In the courts below, the defendants argued, among other things, that the plaintiffs failed to plead that any misleading statements were made with scienter.  On appeal, the Ninth Circuit broke with other circuits and held that scienter is not a required element of a Section 14(e) violation. 

When the defendants petitioned for certiorari, here’s how they phrased the Question Presented:

Whether the Ninth Circuit correctly held, in express disagreement with five other courts of appeals, that Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on a negligent misstatement or omission made

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In case you’re not also subscribed, I wanted to flag this post from the Legal Scholarship Blog.  It’s an excellent resource for seeing what’s going on and calls for papers where you might want to apply.  This time, there is real money available from the Risk Institute:

The Risk Institute at The Ohio State University’s Fisher College of Business invites area-specific and inter-disciplinary proposals for research covering all areas in risk and risk management. Priority will be given to topics of the Risk Institute’s 2018-2019 risk series:

• human resources risk
• aging workforce
• differing risks between born digital and traditional firms
• third-party risk
• predictive metrics and modeling
• cybercrime/data fraud

The main focus of the research proposal should be understanding or managing risks with respect to any of these topics.

Funding will be up to $10,000 cash or research support per person with a maximum of $30,000 per project.

Proposals are due January 31, 2019, and should be limited to five pages plus necessary appendices.