I previously posted about Delaware’s approval of fee-shifting bylaws, and a legislative attempt to ban them.  That attempt was tabled until next year. 

In the meantime, several companies have adopted such bylaws, although some early challenges to the bylaws ended up being settled before courts could rule on their validity.   J Robert Brown at Race-to-the-Bottom blog reports that a company just went public with a fee shifting charter provision in place (the provision purports to cover securities claims as well as governance claims, but, as I previously posted, I don’t think that’s possible).

Most interestingly, Oklahoma recently passed a law requiring “loser pays” rules for all derivative litigation.  Which certainly creates an opportunity for a natural experiment in the idea of the market for corporate charters – will companies flock to Oklahoma?  Will investors pressure managers to stay out of Oklahoma (or to go to Oklahoma, if they doubt the value of derivative litigation)?

Stephen Bainbridge reports that the SEC’s Investor Advisory Committee will be considering fee-shifting bylaws at its next meeting, and asks (via approving linkage to Keith Paul Bishop) why should the Investor Advisory Committee be conferring with the SEC on a state…

The world can rest easy; a policy debate has been resolved. Leonardo DiCaprio says climate change is real. I was waiting to see what Jennifer Lawrence and Ben Affleck have to say, but I guess Leonardo DiCaprio is good enough for me.

Seriously, why should anyone care what an actor or any other celebrity has to say about scientific issues? DiCaprio’s position on climate change–yes or no–should have no effect on anyone’s beliefs.

But, if you think opinions like this really do matter, here are some new law review articles that might change your views on business law issues:

Ryan Gosling, Director Primacy is Wrong: A Reply to Professor Bainbridge

Jennifer Lawrence, Rethinking General Solicitation in Private Placements

Hugh Jackman, Director Liability in Hostile Takeovers

And, finally, one you should really pay careful attention to:

Steve Bradford, Why String Theory is Wrong.

A study by the Center for Political Accountability finds that more public companies are voluntarily disclosing their political spending.  

The survey this year looked at disclosure by the top 300 companies on the Standard & Poors 500 list, up from 200 firms surveyed last year. Of the firms studied, sixty percent disclosed at least some spending on behalf of candidates, parties and political committees. Nearly half described their membership or payments to politically active trade associations, such as the U.S. Chamber of Commerce.

The report is available here, as is the full story at the Washington Post. 

-Anne Tucker

Earlier this week, the Wall Street Journal ran an interesting op-ed titled The West’s Bruised Confidence in Capitalism. In the op-ed the author summarized the findings of the recently published Corporate Perception Indicator survey, which found that 36% of those surveyed reported that they viewed corporations as a source of “hope,” while 37% viewed corporations as a source of “fear.” Broken down by generation, 44% of respondents over the age of 65 view corporations as a source of “hope,” compared to 36% of millennials (defined as those aged 18-34 – darn it, I just missed the cut off!) who view corporations as a source of “fear” rather than “hope.” The survey was not limited to the U.S. and one of the more interesting findings was that 61% of all respondents wanted to hear more about the ways in which corporations help to address broader social issues. The op-ed concluded by offering this thought: “For business leaders, six years after the financial crisis and amid continuing economic uncertainty, the challenge is to show how they use their positions of power to contribute to the common good. The public world-wide wants corporations to promote shared values around growth and opportunity…

Citing to Hobby Lobby, a U.S. District Court Judge in Utah ruled that an individual may refuse to comply with a federal subpoena in a child labor investigation because naming church leaders would violate his religious freedoms protected under RFRA.   The court found that complying with the subpoena failed the least restrictive means prong under RFRA.  The full court opinion, Perez v. Paragon Contractors, Corp., 2:13CV00281-DS, 2014 WL 4628572 (D. Utah Sept. 11, 2014),  is available here and a a brief news summary is available here.

Omnicare is back in court.  This time, it is petitioning the Supreme Court for relief in a legal battle under Section 11 of the Securities Act of 1933, as amended.  The question presented (as quoted from the cert petition) is:

For purposes of a Section 11 claim, may a plaintiff plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false—requiring allegations that the speaker’s actual opinion was different from the one expressed—as the Second, Third, and Ninth Circuits have held?

If this case sounds familiar to you, that may be because co-blogger Ann Lipton already has written about the case here on the BLPB.  As it turns out, Ann and I each have signed onto amicus briefs in the case supporting the same side–the respondents.  The brief that Ann is on can be found here.  The question addressed in that brief is “[w]hether an objectively incorrect statement of opinion is actionable under Section 11 . . . only if it was subjectively disbelieved by the defendant.”  Jay Brown‘s brief, of which I am a named co-author (together with Lyman Johnson and Celia Taylor), is here.  We address “[w]hether, for purposes of issuer liability under Section 11 . . . a statement in a registration statement attempting to characterize a verifiable, present fact about the legal validity of contracts as a ‘belief’ rather than a fact can shield an issuer from liability.”

In July, I blogged about the irrelevance of law reviews. Here’s more evidence.

I spoke at a symposium on crowdfunding in late March and submitted my article, Shooting the Messenger: The Liability of Crowdfunding Intermediaries for the Fraud of Others, to the law review in late June. The editor-in-chief recently informed me that the edited article would be available for my review sometime in November, and that it should be published in March of 2015.

In the meantime, the article is accumulating downloads on SSRN, the Social Science Research Network. By the time it’s published, most of the people who are most interested in the topic will have already read it. The law review will provide a published archive that people can cite to, but that’s about it.