Growing up in Baton Rouge, Louisiana, we often flew Southwest Airlines out of New Orleans’ Louis Armstrong International Airport.  Such trips usually also involved a visit to my maternal grandparents, lifelong NOLA residents.  My grandpa always referred to Southwest as the “cattle car.”  In reading this past week about the legendary Herb Kelleher, Southwest’s visionary co-founder who passed away on January 3rd, I learned that my grandpa’s moniker wasn’t original.  Nope, grandpa had apparently fallen into step with competitors purportedly responsible for the nickname.  Unfazed, Kelleher, with characteristic playfulness, had responded by offering Southwest customers a free bag to either cover their faces if embarrassed to fly with the airline or to hold all the money they’d save by doing so (clip starts at 1:08)!  With Kelleher, such stunts were commonplace.  He even participated in an arm-wrestling match rather than litigation to determine whether Southwest or Stevens Aviation would be entitled to use of the slogan “Just Plane Smart” (you can find this on YouTube too!). 

Like many readers of this blog, Kelleher was a lawyer (an NYU law school graduate).  In 1966, in a bar in San Antonio, Texas, he and a client, Rollin King, sketched

Happy New Year! I had another post planned but will post it tomorrow.

As we get ready for the next semester and look for new inspiration, we may want to learn about some best practices. Scott Fruehwald has posted his roundup of the best legal education articles of 2018 here. Since I couldn’t make it to AALS this year, I plan to spend part of my weekend digesting the articles mentioned in the post. Make sure you let him know of any articles that should be added to the list. 

The early registration deadline for Law & Society is nearly upon us.  For corporate and securities, this year is being organized by Wendy Gerwick Couture at Idaho Law.  The current set of panels looks fascinating. We’ll also have an Author-Meets-Reader Session featuring The Rise of the Working Class Shareholder: Labor’s Last Best
Weapon by David Webber.  It’s in Washington, D.C. this year. 

    Hope everyone had some great holidays.  A couple of weeks ago I posted on the relationship between fiduciary duty and trade secret law.  https://www.businesslawprofessors.com/business_law/2018/12/the-relationship-between-fiduciary-duty-and-trade-secret-law-ive-got-some-questions-/.  I ran across a recent Fifth Circuit case (applying Louisiana law) that comes out the way I had hoped (at least in part), but that drops a footnote indicating that this resolution is far from uniform among the states.  In relevant part, the court noted the following:

LUTSA’s [Louisiana’s Uniform Trade Secret Act] preemption provision states:

  1. This Chapter displaces conflicting tort, restitutionary, and other laws of this state pertaining to civil liability for misappropriation of a trade secret.
  2. This Chapter does not affect:

(1) contractual or other civil liability or relief that is not based upon misappropriation of a trade secret, or

(2) criminal liability for misappropriation of a trade secret.

LA. STAT. ANN. § 51:1437. Official commentary to the statute explains that LUTSA “applies to duties imposed by law in order to protect competitively significant secret information.” Id. cmt. (1981) (Louisiana Official Revision Comments). But it does not apply to contractual duties or to “duties imposed by law that are not dependent upon the existence of competitively significant

I am finishing up the last of my grading (grades are due on Wednesday).  Nevertheless (or maybe for the purpose of grading avoidance), I have been determined all day to take a pause to reflect on 2018 and look forward to 2019.  For me (and perhaps for us all), 2018 was a year with both joys and sorrows; achievements and failures; ups and downs.  I admit that 2018’s sorrows were more abundant than usual–or than I would have liked.  And so, I am primed to kick 2018 to the curb.  Ready or not, 2019 will be here in a few short hours.  I have much to look forward to in the coming year–a research leave, my son’s wedding, and lots more that I know I am forgetting or do not even know about yet!

Among my more serious reflections and (dare I say it) resolutions heading into 2019 is self-care.  I am particularly mindful of the need for lawyers and lawyers-in-waiting (our students) to be aware of an attendant to their mental health.  A few days ago, The American Lawyer published an article entitled After a Year Marked by Tragedy, Attorney Mental Health Takes the Spotlight.  The article highlights

Chief Justice Leo Strine of the Delaware Supreme Court just posted a fascinating article/speech to SSRN, which was apparently delivered to the Institute for Corporate Governance & Finance in November.

The subject of the speech is the fiduciary obligation that mutual funds owe fund beneficiaries when voting their shares, and in particular, the funds’ failure – in Strine’s view – to adequately police portfolio companies’ political spending.

The general thesis is that investors in mutual funds benefit most when the economy does well by generating long-term, sustainable jobs, and he lauds the current trend of mutual funds’ willingness to second-guess corporate managers and vote for measures that promote long-term sustainability, including their increasing willingness to back shareholder-sponsored proposals on ESG measures.  As he puts it:

[I]nstitutional investors are not just getting involved in boardroom battles.  … [S]ome prominent mutual funds have now expressed the view that their portfolio companies should act with sufficient regard for the law and general social responsibility. That is, in the area of corporate social responsibility, the largest institutional investors seem to be evolving in a positive direction.

He laments, however, that funds’ willingness to buck management appears to stop when it comes to political

We now have some new developments on the non-attorney representative front.  After taking time to consider responses to its prior request for comments, FINRA’s board has approved a new rule proposal to prohibit “compensated non-attorney representatives from practicing in the FINRA arbitration and mediation forum.”  Once filed with the SEC, the proposed rule should be available here.