Miami in February. Sunhine. Mojitos. Superbowl Party. Contracts.

Yes. All of these things go together.

Registration is Now Open for Future Contracts Miami!

We’re thrilled to announce that the University of Miami School of Law will host the inaugural Future Contracts Miami conference on February 10-11, 2025!

Featured Topics

How AI is reshaping contracts for law firms and in-house

How UM Law is preparing future lawyers in the age of AI

The rise of contract standardization

Featured Speakers

Darryl Chiang, Director of Legal at Google
Juliet Astbury, Corporate Practice Leader, Dentons
Isabel Parker, Chief Innovation Officer, White & Case
Kyle Pankratz, VP Legal Operations, Mastercard
and so many more!

Event Details

February 10th-11th, 2025

University of Miami Shalala Student Center
1330 Miller Drive, Coral Gables, FL  33146

Featured Event Sponsors

Law Insider
HarveyAI
SimpleDocs

Exclusive Alumni Tickets

Thanks to our sponsors, we’re able to offer 40 FREE all-access passes* (including the Super Bowl Watch Party on Sunday, February 9th): 
 
Register here for your complimentary ticket

See you in Miami!

Well, an awful lot, naturally, but Imma return to two of my favorite Musk subjects, namely, the pay package that was rescinded by Chancellor McCormick in Tornetta v. Musk, and the Twitter takeover.

So, Tornetta! Where we last left things, Chancellor McCormick had rejected Musk’s attempt to restore the pay package through shareholder ratification (Me and Mike Levin devoted a whole podcast to that decision, here). With that decision, and her award with attorneys’ fees, the case was finally over, and the defendants were able to appeal.

Which they did earlier this week.

Now, notices of appeal are usually sparse and rather dry reading, but not this time. To wit:

PLEASE TAKE NOTICE that Defendants-Below/Appellants Elon Musk, Robyn M. Denholm, Antonio J. Gracias, James Murdoch, Linda Johnson Rice, Brad W. Buss, and Ira Ehrenpreis, hereby appeal to the Supreme Court of the State of Delaware from (i) the December 13, 2024 Order and Final Judgment entered by the Honorable Kathaleen St. J. McCormick (the “Judgment”), (ii) the December 2, 2024 Opinion Awarding Attorney’s Fees and Denying Motion to Revise the Post-Trial Opinion (the “Ratification Opinion”), (iii) the January 30, 2024 Post-Trial Opinion (the “Post-Trial Opinion”), (iv) the

My last post on the Corporate Transparency Act (the “CTA”) was just more than a month ago. What a difference a month makes! It seemed like every time I sat down to write an update, something changed . . . . As I head off to the Association of American Law Schools annual meeting in San Francisco, I thought I would offer a quick set of links for you to enjoy if you want to briefly catch up. You can find a nice summary here. But the essence is as follows.

Following the nationwide injunction prohibiting enforcement of the CTA early last month, the U.S. government appealed. On December 23, a motions panel of the United States Court of Appeals for the Fifth Circuit granted the government’s emergency motion for a stay pending appeal. The court’s order also expedited the appeal to the next available oral argument panel. On December 26–a mere three days later, the Fifth Circuit vacated that stay, reviving, in effect, the U.S. District Court’s nationwide injunction against the government’s enforcement of the CTA. Got that? (Feel free to read it again.)

On December 31 (happy new year!), the U.S. Solicitor General applied to

Thing One:  SEC Commissioner Mark Uyeda recently posted this dissent regarding an SEC enforcement action against Cantor Fitzgerald. The action accused Cantor Fitzgerald of taking SPACs public while already having begun to have substantive negotiations with potential merger targets.  Commissioner Uyeda argues that in the context of SPACs – which are designed to merge with someone eventually – preliminary negotiations with targets should not be considered material until they are close to reaching binding contract.

John Jenkins at Deal Lawyers Blog points out Uyeda’s views may be more representative of what we can expect from the incoming administration.  And I particularly note as much because (as Uyeda mentions) the SEC settled an enforcement action against Digital World Acquisition Corp. for failing to disclose discussions with Trump Media before the DWAC IPO. 

Notably, the case against Patrick Orlando, the former DWAC CEO, was filed last year and continues to be litigated

Thing Two: I was fascinated by this Bloomberg story about ATIC, the main insurance company for taxis/rideshares in New York, which recently was declared insolvent. (Anyone who teaches Walkovsky v. Carlton can’t help but be interested in NYC taxi insurance regulation.)

Anyway, the main takeaway

Litigation limiting bylaw and charter provisions are something of a running interest of mine – I have four different papers discussing them, more or less, and here is the latest of many blog posts on the subject – so I was tickled when I discovered In re Cerence Stockholder Derivative Action, 2024 WL 5187699 (D. Mass. Dec. 20, 2024), where the company had two different forum selection provisions, one in the charter and one in the bylaws, and they were not the same.

Conflicting provisions in the charter and bylaws?  That’s how we know these things have really gone mainstream.

So.  Cerence is incorporated in Delaware, and has a charter provision, adopted when it went public as a spinoff in 2019, requiring:

Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or other employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders … shall be the Court of Chancery of the

The National Center for Public Policy Research has sponsored a series of conservative shareholder proposals asking companies to reconsider their diversity programs. The one recently offered at Costco is typical:

It’s clear that DEI holds litigation, reputational and financial risks to the Company, and therefore financial risks to shareholders.

And yet Costco still has such a program, though it was apprehensive enough to recognize this as it recently and quietly rebranded its DEI program to “People and Communities.”  But sticking a new label on discriminatory practices does not protect Costco and its shareholders from these risks….

With 310,000 employees, Costco likely has at least 200,000 employees who are potentially victims of this type of illegal discrimination because they are white, Asian, male or straight.  Accordingly, even if only a fraction of those employees were to file suit, and only some of those prove successful, the cost to Costco could be tens of billions of dollars.

Resolved: Shareholders request that the Board conduct an evaluation and publish a report, omitting proprietary and privileged information, on the risks of the Company maintaining its current DEI (including “People & Communities”) roles, policies and goals.

Costco’s response was not:

The proponent professes concern

Hennion and Walsh, a FINRA member firm, has taken an unusually aggressive position, claiming that because it has procured expungements through the FINRA forum, members of the public cannot discuss the underlying conduct. A cease and desist letter sent to a law firm claims that the firm “posts information relating to Hennion and Walsh, Inc. and its’ [sic] employees which has been found to be false and has been ordered to be expunged.” The letter goes on to claim, without authority, that it’s “illegal to provide a false statement . . .of an individual’s character and/or reputation” and that unspecified “relevant records reflect the information you have posted for public consumption has been deemed to be false, was ordered to be expunged and that order has been confirmed in a court of competent jurisdiction.”

The letter doesn’t specify exactly what statements it wants removed, but I presume it’s blog posts or other things featuring news of past Hennion and Walsh settlements or complaints against Hennion and Walsh employees. These are all fairly typical things for a plaintiff-side firm to post. If one investor has filed or settled a claim against a particular broker, there may be other aggrieved

In law school, students take a professional responsibility exam and then take the MPRE exam. After graduation, they sit through (often boring) continuing legal education courses and try to get that precious ethics credit.

I don’t teach professional responsibility anymore, although I do speak about ethics in my Compliance, Corporate Governance, and Sustainability and my Business and Human Rights courses.

But as business professors, I’m not sure that we spend enough time talking about business ethics. Yes, it’s important to know about conflicts of interests but do we know how to advise our business clients on the issues that affect them?

I get to flex my “ethics” muscles in an interdisciplinary Innovation, Technology, and Design program housed in our School of Engineering, where I teach a course on Ethics, Equity, and Responsibility- basically Ethics and Technology.

They say grading is the worst part of being a professor.

But not this week.

My students in the ITD class brought me to tears reading their final exams.

I was impressed by their projects on regulating technologies like social media, cloning, AI, and robotics, and by their business plans and pitches for new innovations.

I would invest in some of them today if

Like Steve Bainbridge and Matt Levine, I’m very entertained by this complaint Albertsons filed against Kroger over the breakup of their merger due to antitrust concerns.

The crux of it is that Kroger promised to make some kind of effort – more on that in a moment – to meet FTC demands in order to clear the deal, Kroger got cold feet and refused to meet those demands, and as a result, the FTC got the deal blocked in court, and now Kroger owes Albertsons damages for its breach.

As Matt Levine points out, one weakness in these kinds of disputes is establishing that Kroger’s recalcitrance was, in fact, the reason for the FTC rejection.  For example, not long ago, Anthem sued Cigna with a similar set of allegations, and though the court agreed that Cigna breached the contract, the court also concluded that the deal would have been blocked anyway.

But the part that I’m enjoying is the argument about what, exactly, kind of effort Kroger agreed to make.  This is from the complaint:

First, Kroger generally agreed to use “reasonable best efforts” to satisfy all closing conditions “as promptly as reasonably practicable.”

Second, Kroger assumed a

If you’re a law professor, please consider sending a team to Miami on January 16th for the University of Miami’s inaugural contract drafting and negotiation competition.

We have slots for 4 more teams and there is no registration fee due to the generosity of our sponsors, Law Insider and SimpleDocs. We are excited to welcome students from the University of Miami, William & Mary, SMU Dedman, St. Thomas (Miami), and North Carolina Central University.

We will award $5000 in cash prizes and students will be in beautiful Miami, Florida in January. What more could you want? We will hold registration open until December 20 or until we fill the slots.

Key dates are below:

Saturday December 21, 2024:

8:00am: Written Round prompt release

Monday January 13, 2025:

5:00pm: Deadline for Written Round contract submission.

8:00pm: Release of Negotiation Round 1 prompt.

All required in-person events will be held at the Newman Alumni Center

6200 San Amaro Dr, Coral Gables, FL 33146

Thursday January 16, 2025

3:00-4:00pm: Registration and Check In

4:00-5:20pm: Negotiation Round 1

5:30-7:00pm: Networking Reception

7:30-10:00pm: Dine Around Dinners

10:00pm: Negotiation Round 2 prompts released.

Friday January 17, 2025

8:30am-10:00am: Continental breakfast available

9:00am-10:00am: Registration and Check In