Submissions and nominations of articles are being accepted for the fourteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2023. The prize will be awarded at the 2024 AALS Annual Meeting in Washington, DC. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu. The deadline for submissions and nominations is September 1, 2023
Ernst and Ernst and Hochfelder and Powell
Last week, I had the pleasure of attending one of my favorite conferences: NBLSC, hosted this year in Knoxville by Joan Heminway and by Eric Chafee. While there, I took part in a panel discussion of Adam Pritchard and Robert Thompson’s new book, A History of Securities Law in the Supreme Court.
Much of the book is based on the recently-public papers of Justice Powell, and argues that his presence on the Court reshaped the direction of securities law from the deferential approach applied in the early years of the New Deal to the much more skeptical view we often see today. In particular, the book highlights how Justice Powell, with his experience as a corporate lawyer, exhibited particular sympathy and concern for businessmen who might be caught in an uncertain liability regime (twice, Justice Blackmun accused Justice Powell of continuing to represent his corporate clients from the bench, see pp. 85, 163).
In elucidating their argument, Pritchard and Thompson highlight a string of cases authored by Justice Powell where the Court adopted narrow constructions of the securities laws, after a run of broad constructions (both at the Supreme Court and in the lower courts). One of those
California Western School of Law Faculty Hiring Announcement – Professional Responsibility and Director of STEPPS
California Western School of Law (CWSL) is seeking lateral candidates for a full-time faculty position teaching Professional Responsibility and serving as a Director of CWSL’s STEPPS Program. STEPPS is a key component of CWSL’s innovative sequential experiential curriculum, bridging the gap between the first-year legal skills program and third-year clinical and externship programs. STEPPS integrates the teaching of professional responsibility with an experiential small “law firm” component.
The role combines the doctrinal teaching of professional responsibility and an administrative component managing the STEPPS Program. The majority of the time spent in the role will be dedicated to the teaching component, however, the Director will also work closely with the STEPPS staff coordinator to supervise the adjunct professors who teach the experiential component of the program. We welcome lateral candidates with an established record of scholarship who are seeking tenured/tenure-track positions. We also welcome clinical faculty seeking a clinical position with security of appointment under ABA Accreditation Standard 405(c). The timing of this job opening corresponds to a periodic review of the STEPPS curriculum, and so the new Director will both be directing a mature program, but also be part of the process of ensuring the program remains innovative moving forward.
“In connection with” is everywhere now
I’m interested in this district court opinion issued in May regarding Section 10(b) claims against Mylan. Plaintiffs claim that Mylan’s Morgantown, West Virginia manufacturing facility was dramatically out of compliance with FDA manufacturing requirements – to the point where it was ultimately forced to halt production and recall certain products – and misled the public about it. The court allowed the case to go forward based on a single statement by a Mylan spokesperson, but dismissed claims based on Mylan’s other statements. See In re Mylan NV Sec. Litig., 2023 WL 3539371 (W.D. Pa. May 18, 2023).
Now, the first thing to note here is that the court found that plaintiffs properly alleged “clear circumvention of quality controls at Mylan to cut corners for time pressure and in a way that jeopardized the quality of the medications.” The court accepted the allegations “of widespread compliance and product-quality issues at Morgantown that were driven by outsized production demands imposed by management. …[T]hese issues were directly communicated to management and high-level executives at Mylan but not meaningfully addressed until after repeated serious warnings from the FDA.”
Having said that, the court began by holding that Mylan’s statements on its general public-facing
Cabining MFW
Regular readers know that I’ve spent a lot of time thinking about the problem of controlling shareholders. I’ve written a bunch of blog posts on the subject (prior posts here, here, here, here, here, here, here, here, here, here, here , and here), and two essays: After Corwin: Down the Controlling Shareholder Rabbit Hole, and The Three Faces of Control.
To summarize my previous writing on the subject: The label “control” in Delaware carries an enormous amount of legal weight. Controlling shareholders are subject to fiduciary duties; control itself is valuable and subject to special pricing, and interested transactions by controlling shareholders are subject to the MFW cleansing regime rather than ordinary cleansing (“ordinary” meaning by either disinterested shareholders or disinterested/independent directors). In recent years, the definition of control has become muddled, in part – I’ve argued – because Corwin allows many suspect deals to escape review entirely, encouraging an expansive view. And once Chancery courts concluded that all conflict transactions by controllers could only be cleansed via MFW review, enterprising plaintiffs became especially creative about identifying interested transactions, including regulatory settlements and reincorporation out of state.
More Teaching Insights from Professor Siedel
In today’s post, I wanted to highlight two more works (previous posts here and here) of University of Michigan Professor Emeritus George Siedel.
First, Siedel recently wrote an informative piece in the ABAJournal entitled, Consider teaching law in a business school as an alternative career. This helpful article should be especially useful to BLPB readers who might be interested in teaching law in a business school or simply curious to understand ways in which teaching law in a business school might be different from teaching law in a law school.
Second, in a previous post (here) I mentioned Siedel’s book Seven Essentials for Business Success: Lessons from Legendary Professors. I just finished reading it. Definitely well-worth my time and effort!! There are so many great ideas here that I can’t wait to put into practice when the fall semester begins! It seems that great teachers combine stellar “teaching processes” with what Siedel terms “authenticity.” From his study of and interviews with the legendary professors, he identifies “[s]ix themes relating to the teaching process” (p.186): 1) “Prepare, Prepare, Prepare,” 2) “Build a Learning Community,” 3) “Emphasize the Big Picture,” 4) “Simplify, Simplify,” 5) “Make
What a Week Yesterday Was
In blogging, it’s feast or famine. Some weeks I strain to find something to say; other times I’m spoiled for choice.
This week, we kick off with the Supreme Court’s decision in Slack v. Pirani, which Ben Edwards flagged in his post yesterday. I blogged extensively about the case previously here and here and here.
Not much to say about this one except that the unanimous reversal of the Ninth Circuit was probably the best outcome plaintiffs could reasonably have hoped for. The Court held – as expected – that Section 11 claims require plaintiffs to show they purchased shares registered on the defective registration statement, but it also allowed for the possibility that plaintiffs would be able to do so and remanded to the Ninth Circuit to make that determination. Plaintiffs, and their amici, raised arguments about statistical tracing and accounting methods; it’s not impossible those will stick. And, the Supreme Court remanded to the Ninth Circuit for reconsideration of the Section 12 claims, which means plaintiffs may try to make some new law there as well. These are all longshots, but the case survives to fight another day.
Next up, we have the Ninth
Supreme Court Upholds “Tracing” Requirement for Section 11 Cases
Earlier today the Supreme Court released its opinion in Slack Technologies LLC v. Pirani. It ruled that a plaintiff seeking to bring a Section 11 claim must trace their stock to a registration statement. Of course, companies today now go public through direct listings or other methods where the pool of publicly traded stock includes some issued pursuant to registration statement and some from other prior holders. Functionally, this often makes it impossible to for anyone buying shares in the open market to trace whether their shares were issued pursuant to a registration statement or simply sold by someone else.
The unanimous decision follows the vast majority of circuit courts to consider the issue. It pointed out that the issue was previously addressed by Judge Friendly in Barnes v. Osofsky, 373 F. 2d 269, 272 (CA2 1967).
I’m Moving to the Free Enterprise Project
It’s not quite as dramatic as LeBron James taking his talents to South Beach, but I’m nevertheless excited to announce my upcoming move to the Free Enterprise Project (FEP), a DC-based think tank that “focuses on shareholder activism and the confluence of big government and big business.” The FEP is part of the National Center for Public Policy Research, which is “a communications and research foundation supportive of a strong national defense and dedicated to providing free market solutions to today’s public policy problems.” The NCPPR was founded in 1982, and readers of this blog may be interested to know that among its many activities it is the plaintiff in a recently filed lawsuit accusing the SEC of viewpoint discrimination in connection with its oversight of shareholder proposals (co-blogger Ann Lipton recently discussed an aspect of that lawsuit here).
In addition to the FEP, the National Center includes: (1) the Environment and Enterprise Institute, (2) Project 21, (3) Able Americans, and (4) The Political Forum Institute. For those interested, I’ve included a brief summary of each of these projects below.
- The Environment and Enterprise Institute seeks to “counter misinformation being spread to the public and policymakers by the
Closing Out An Annual Day Of Reflection . . . .
Each year on and around Memorial Day, in addition to all the promotional sales that hit my email in box and text messaging apps, I read many grateful testimonials to those whose lives were lost in national military service. The personal reflections are touching and inspire in me both sorrow for the loss and pride in the United States of America. As many before me have said, there is no greater sacrifice for one’s country.
Although family members alive during my lifetime have served in the armed services, none of those family members died in the line of service. I have been lucky to not suffer that kind of loss. It would be heartbreaking.
Today, my brother (who researches our family history) asked his Facebook friends–me included–to honor “all of those who have lost their lives in the struggle for freedom.” That request followed a brief recitation of the story of one of our family members who lost his life as a civilian working in what became enemy territory in World War II. Here is what my brother wrote:
1st cousin 1 generation removed Donald MacLeod Williams (14 May 1921, San Francisco, California – 9 Mar 1943, Sasebo, Nagasaki, Japan)