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    Life is filled with difficult choices.  Chocolate or Vanilla?  Brady or Rogers?  Is that dress white/gold or blue/black?  And for law professors who teach Business Organizations, perhaps the most difficult choice of all:  UPA or RUPA?

    In all seriousness, and in the same vein as Joan’s earlier post on teaching fiduciary duty, the UPA/RUPA question when teaching partnership law is something that challenges me every year.  In the past, I focused on UPA and UPA cases, and then I briefly discussed RUPA as a point of contrast after finishing those materials.  My rationale, as I have explained elsewhere, was as follows:

    Despite the prevalence of RUPA in this country, the materials in this Chapter will discuss both UPA and RUPA.  There are several reasons for this dual treatment.  First, UPA is still the law in some commercially important states, including New York.  Second, UPA and RUPA share many common principles.  Because there is far more UPA case law than RUPA case law, however, many of the primary materials that are useful for teaching the basic principles of partnership law are based on UPA.  Third, it is easier to understand many of the significant changes in RUPA, particularly the dissociation and…

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Last week, I posted about the SEC’s Proxy Roundtable, and in particular, the panel regarding proxy advisors.

As I mentioned at the time, one of the big issuer complaints about proxy advisors is that their recommendations may be erroneous – though of course, the definition of “error” is somewhat expansive and may include differences of interpretation.  Issuer advocates have long sought some regulatory/statutory ability to review and, if possible, force revisions to proxy advisor reports before they are published, a proposal that – as I previously noted – apparently has found some sympathy with at least Commissioner Roisman.

From my perspective, though, the most interesting aspect to all of this is that if proxy advisors do, in fact, include false statements (however defined) in their recommendations, it is not entirely clear whether and to what extent they are subject to federal sanction.

The most obvious place to begin is Rule 14a-9, which prohibits false or misleading statements in proxy solicitations, and has generally been interpreted to apply to negligent, as well as intentional, false statements.

The problem here is that it is not entirely clear that the voting recommendations of proxy advisors are proxy solicitations.  Glass Lewis, in its…

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The SEC held its Roundtable on the Proxy Process on Thursday, and I was able to watch the live webcast of the last panel on proxy advisory firms.  (In a prior post, I discussed how, in advance of the Roundtable, the SEC withdrew two no-action letters that facilitated investment advisors’ reliance on proxy advisory services.) 

One thing I’ll note about the Roundtable is that it felt a lot like oral argument in an appellate court, in that everyone had fun expounding their positions but it’s not where the real policymaking gets done; that’s going to take place in back offices based on private meetings and written submissions, not in a public theater.

Still, I was interested in what everyone had to say.  The webcast just went online here, but I’ll offer a summary of what stood out to me. 

(More under the jump)

     Greetings from Florida, the land of the endless voting snafus. As I continue my research on blockchain use cases, I’m particularly fascinated with the potential to make voting more streamlined and secure. West Virgina just used blockchain-protected voting in a general election for 144 voters in 30 different countries who were able to cast their ballots anonymously using a blockchain-enabled  app. Military personnel and overseas voters from 24 of the state’s 55 counties used the app from Voatz.. Under  the Uniformed and Overseas Citizens Act, personnel verify their identities by providing a photo of their driver’s license, state ID or passport that is matched to a selfie. After confirmation of the identity, the voter receives a mobile ballot based on the one that s/hewould receive in the local precinct. 

     Although the technology is supposed to be tamper proof, some argue that blockchain voting can’t protect against server problems, internet outages, or hacks on the mobile devices. Nonetheless, many governments are exploring the technology for voting and other citizen services. The tiny nation of Estonia has led the way in using digital ledger technology for citizen services since 2008. Through its E-Estonia initiative, the government facilitates voting, …

Facing looming retirement crises, some states have begun to do more.  Notably, Nevada recently passed a state fiduciary statute.  I cheered the legislation’s passage because it mostly puts in place the legal protections that most savers now mistakenly believe that they already have.  New Jersey also recently began to solicit comments on the issue as well.  For the New Jersey process, written comments are due on December 14th.

As it moves forward, New Jersey will likely have to contend with the financial services industry doggedly lobbying to protect a stockbroker’s right to sell clients the wrong products.  Much of the campaign will likely be led by the Securities Industry and Financial Markets Association (SIFMA).  SIFMA touts itself as “the voice of the nation’s securities industry.”  It came up with some creative concerns about the Nevada fiduciary statute and will likely raise similar concerns with New Jersey. 

One SIFMA argument struck me as particularly interesting in its implications:

We remain concerned that any new fiduciary duties under the Nevada law would impose additional recordkeeping requirements that would violate the National Securities Markets Improvement Act of 1996 (“NSMIA). As you well know, NSMIA precludes states from enacting regulations relating to the making and

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