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As many readers are likely aware, the proposed acquisition of Tribune Media Company by Sinclair Broadcast Group fell through when the FCC referred the matter to an administrative hearing, thus creating a nearly-insurmountable roadblock to closing.  On Thursday, Tribune filed a complaint against Sinclair in Delaware alleging that Sinclair breached the merger agreement by failing to use its best efforts to win regulatory approval.  The complaint is an entertaining read and regardless of the outcome, I’m quite certain it will prove to be a vivid classroom example of best efforts clauses in the merger context.

The basic gist of the complaint is that Sinclair agreed to use its best efforts to win regulatory approval, and it was entirely foreseen by the parties that the relevant regulators – the Justice Department and the FCC – would want divestments in 10 specific markets.  Nonetheless, Sinclair stonewalled the DOJ (at one point actually telling the Assistant Attorney General “sue me”), and submitted sham divestment plans to the FCC that involved, well:

selling WGN-TV in Chicago to Steven Fader, a close associate of [Sinclair Executive Chair David] Smith’s in a car dealership business who had no experience in broadcasting. Sinclair also proposed the

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As most readers of this blog are likely aware, the theory behind initial coin offerings and “smart” contracts is that the code itself is entirely transparent and self-executing; the terms of the contract are set in the programming, thus eliminating the need for enforcement mechanisms or for messy legal disputes over interpretation.  The code dictates the agreement, and the code enforces it; investors curious about terms of an investment can simply read the code and have utter certainty as to the nature of the agreement. 

As Matt Levine described it, “If you invest your Ether in a smart contract, you’d better be sure that the contract says (and does) what you think it says (and does).  The contract is the thing itself, and the only thing that counts; explanations and expectations might be helpful but carry no weight.”  Primavera De Felippi and Aaron Wright dubbed this system “lex cryptographica.”

But problems arise when the code diverges from the white paper summary typically distributed to potential purchasers.  Famously, for example, in the case of one project known as the DAO, a “flaw” in the code allowed a “hacker” to steal Ether currency from investors.  Or did it?  Matt Levine explained…

Willamette University College of Law seeks applicants for up to two full-time, tenure-track faculty positions beginning in the fall of 2019.  While the focus of our search is for entry-level candidates, we also welcome applications from early-career lateral candidates.  Our curricular interests include Business Associations, Commercial Law, and Health Law, as well as Trust & Estates, Property, Family Law, Tax, Torts, and Criminal Law.  Applicants must possess strong academic credentials and a proven ability to produce thoughtful scholarship, as well as the skills necessary to communicate their expertise to colleagues and their students.  The Faculty Appointments Committee will begin reviewing applications in the late summer and will continue to do so until the positions are filled.

Willamette University is committed to the academic excellence and rich and rewarding communities that a diverse faculty, staff and student body brings.  We welcome candidates whose work furthers equity and diversity and who bring to campus a commitment to sharing varied experiences, perspectives and backgrounds.  Applicants demonstrating these qualifications are particularly encouraged to apply.

Contact:  Please use the AALS submission process to apply; questions can be addressed to Jeff Dobbins, Chair, Faculty Appointments Committee, Willamette University College of Law, 245 Winter Street, Salem, OR 97301, or jdobbins@willamette.edu. 

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The indie hit Sorry to Bother You was recently described as “the most overtly anticapitalist feature film made in America.”

Riffing off the well-documented phenomenon that people respond to telephone calls based on the perceived race of the caller, Sorry to Bother You tells the story of a young black man, Cassius Green – Cash is Green, get it? – who goes from rags to riches by using his “white voice” for telemarketing.  As Cash climbs the corporate ladder, he is torn between his newfound prosperity and loyalty to his old friends.

But that bare description of the film’s premise is hardly preparation for the surreal dystopian fantasy that follows.  The plot is nearly beyond description, but most of the action centers on WorryFree, a labor contracting company that offers its employees dormitory-style housing and cafeteria-tray meals in exchange for lifetime work commitments – an arrangement deemed not to be slavery after congressional investigation.  A proto-anarchist movement struggles to disrupt WorryFree’s operations and unionize Cash’s workplace, but mass media and viral marketing allow even the protests to be commodified and sold as entertainment.  As such, the film dramatizes the concept of narcotizing dysfunction, where knowledge of an…

The Washington Post recently ran a piece by Ridhi Tariyal, the CEO of NextGen Jane.  Tariyal describes the environment she faced raising capital as a woman in Silicon Valley and the identity performance strategies she used to project a masculine identity to access capital.  The startup now works to develop a “smart” tampon that will test “the endometrial cells shed in menstrual fluid for disease.”  At times, her startup faced extra challenges because venture capitalists tend to be overwhelmingly male and “are unaccustomed to talking about menstruation.”

She faced pressure to minimize her gender and project masculinity in different ways.  Some suggested she hire more men.  Others pushed her to shift the pitch language to strip and obscure as many references to gender or menstruation by employing odd terms such as “novel female substrate” instead of simply saying menstrual blood.  

Even though she tried these strategies to project an idealized masculinity to masculine sources of capital, the strategies simply did not work for her business model.  She explains how she came to reject them:

Ultimately, I realized I cannot project my male alter ego and simultaneously talk about my period. I had reached the limits of professional theater. The business

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