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In my previous post on a November 7th Society of Corporate Compliance and Ethics (SCCE) panel on ESG through the life cycle of a business, I outlined the shifting landscape of ESG in the wake of recent regulatory and social developments in the U.S. This follow-up provides more detail on the insights shared by my fellow panelists, Eugenia Maria Di Marco and Ahpaly Coradin, who explored ESG in the contexts of startups, international markets, private equity, and M&A. As President-elect Trump continues to name cabinet members and advisors, I and others expect that ESG issues will continue to be a hot button issue here in the US.

Ahpaly shared his perspective on ESG trends, particularly in private equity. Although he acknowledged that in the US, interest in ESG is waning, many PE firms still screen for ESG risks at the initial target selection stage and during due diligence. Larger firms see market positioning and risk mitigation as the main benefits of ESG. However, revenue growth and capital allocation are not primary motivators due to the lack of data. He noted that many limited partners are increasingly deploying capital away from sectors like tobacco, alcohol, and to a lesser…

Earlier this week, I spoke on a panel for the SEC’s Investor Advisory Committee. The was the agenda. Although the video is not yet up and available publicly, I put the draft of my remarks up on SSRN.

Other panelists included:

If you’re interested in these issues, the panel may be worth listening to when the SEC makes it available.

One of the challenges with the discussion is how to zero in on what we mean by alternative investments. As conceived for the panel, the category includes the wide world of things beyond ordinary stocks, bonds, and public stock/bond mutual funds that may show up in a brokerage account.

This is an issue we’re going to have to navigate in the coming years. It’s not an easy one. There is a huge difference between the sorts of products issued by leading private equity firms and major institutional issuers and some of the other…

First, the Supreme Court DIG’d the NVIDIA case. I previously blogged about that case here; it, along with the Facebook case (which was also DIG’d), was a spectacularly bad grant resulting from disgruntled defendants who successfully made it appear that their extraordinarily fact-specific pleading-stage losses presented grand overarching legal questions that necessitated Supreme Court guidance. Belatedly, the Supreme Court realized they did not. Would that it had done so for other securities cases.

Second, the 2024 DGCL proposed amendments are out. As far as I can tell, the big change concerns litigation limiting bylaws and forum selection provisions (a subject I have addressed … frequently). The backstory here is, after a pair of decisions – Boilermakers Local 154 Retirement Fund v. Chevron Corp, 73 A.3d 934 (Del. Ch. 2013) and ATP Tour Inc. v. Deutscher Tennis Bund, 91 A.3d 554 (Del. 2014) – Delaware amended its code to address charter or bylaw provisions that govern internal-affairs-like state law stockholder claims. Specifically, corporations may require all such claims be brought in a particular forum, as long as plaintiffs retain access to the Delaware Superior Court or the Delaware Court of Chancery, but they…

Ferdinand Bratek, April Klein, and Yanting (Crystal) Shi have recently posted to ssrn The Market Value of Pay Gaps: Evidence from EEO-1 Disclosures.

Most companies are required to file reports with the EEOC regarding the diversity of their workforce, however, these EEO-1 reports are confidential unless the companies choose to release them. In 2023, a FOIA lawsuit forced the public release of EEO-1 reports for government contractors. The authors use this newly-released granular workforce data to confirm that women and people of color are paid less than white men in a variety of positions, and also that firms financially benefit by having more women and people of color in their workforce. In general, analysts often tout the purported financial benefits that diversity brings to a firm, but these authors suggest the disturbing possibility that diversity benefits a firm by lowering its labor costs.

Most strikingly, the authors find that when this particular EEO-1 data became public, the firms with greater pay gaps experienced more positive shareholder returns. In other words, the market, as well, recognized the value of underpaying women and people of color.

From a ruthless shareholder wealth maximization perspective, that makes perfect sense. But I note that…

As many already know, earlier this week, a Texas federal district court issued a nationwide preliminary injunction against enforcement of the Corporate Transparency Act (“CTA”). Many questions are being raised by the court’s memorandum opinion and order, which can be found here. In addition, law firm memos and newsletter articles have become available and are being circulated, including this one from Stoll Keenon sent to me by friend-of-the-BLPB Tom Rutledge and this one from Wilson Sonsini (which included the opinion link provided above).

Also, members of the American Bar Association’s LLCs, Partnerships and Unincorporated Entities Committee are hosting a free Webinar tomorrow on the Texas opinion. The program, The Corporate Transparency Act Update: Texas Decision, is scheduled for Friday, December 6, 2024, 3:30 p.m. E.T. Program information is included below. I registered and plan to be there!

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On Tuesday, December 3, 2024, a Texas Federal District court issued a preliminary injunction against the Corporate Transparency Act. Please join in this discussion and gain a head start on drafting client communications of this significant development. The panel will review the best information available as to what this means for you and your clients. The LLCs, Partnerships…

Dear Readers:

“The Department of Insurance, Legal Studies and Real Estate in the Terry College of Business at The University of Georgia invites applications for a full-time non-tenure-track faculty position in Legal Studies at the lecturer level, beginning in fall semester 2025, with an employment start date of August 1, 2025.

Candidates must hold a juris doctorate or equivalent degree. Strong communication skills and demonstrated potential for excellent teaching are required. The position is renewable based on performance and promotion to Senior Lecturer is possible after six years of service. For information regarding the requirements for each faculty rank, please see the University of Georgia Guidelines for Appointment and Promotion of Lecturers (https://provost.uga.edu/policies/appointment-promotion-andtenure/guidelines-for-appointment-and-promotion-of-lecturers/).

Participation in service activities appropriate to the rank is expected. Salary is competitive and commensurate with qualifications.”

The complete announcement regarding this position is here: UGA Legal Studies Lecturer – Start Fall 2025

It’s the day after Thanksgiving so I’ll post part 2 of my discussion in ESG in the Trump/Vance era next week.

Today, as students are stressed out over finals, here’s a post to brighten their day. Please share and forward far and wide.

We are pleased to invite your school to send a team to participate in the inaugural University of Miami Transactional Skills Competition, designed to provide law students with an unparalleled opportunity to refine their transactional lawyering skills in a challenging and dynamic setting.

In keeping with the vibrant culture of Miami, the details and challenges for this competition will be sophisticated, unexpected, and innovative, embodying the city’s forward-thinking ethos. This competition presents a distinctive opportunity for law students to engage with real-world, progressive transactional scenarios in emerging industries.

Unlike traditional moot court or contract negotiation contests, this event invites participants to navigate the complexities of contract drafting while considering broader business factors. Through a blend of virtual and in-person rounds, students will manage high-stakes negotiations while developing essential skills in negotiation, strategic thinking, and client representation. This comprehensive experience prepares participants to excel in transactional law, providing them with the expertise necessary to succeed at the intersection…

I was struck by this article recently published in the WSJ on the use of AI for investor relations:

Investor relations departments at companies such as shoe brand Skechers USA and networking-systems and software provider Ciena have begun using generative artificial-intelligence to help prepare their earnings commentary.

Some have used generative AI to predict the questions analysts might ask, for example, and to ready the best answers….

Executives at many companies are using AI to refine word choice in their prepared remarks, for instance, in deciding whether to say the quarter was “strong” or “solid,” said Dan Sandberg, head of quantitative research and solutions at S&P Global Market Intelligence. The firm’s tool recently preferred “strong,” based on the earnings metrics of other companies that used the word on their earnings calls, he said. 

Generative AI can also read the harmonics in executives’ prepared statements on earnings, assessing them as upbeat, gloomy or something more measured…

As any securities litigator knows, these are exactly the kinds of nuances of communication that – when they become the subject of a securities fraud lawsuit – are routinely dismissed by courts as “puffery,” i.e., conveying no material information to investors. For example, a very…

Delaware maintains its stature because it favors no one. Critics from the right declare it has adopted an anti-shareholder and approach sympathetic to the environmental, social, and governance movement, while critics from the left blame Delaware for stalling ESG. Logic suggests that one of these

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