SCOTUS will begin hearing oral arguments for its next term tomorrow. One of the cases of particular interest to BLPB readers will be 303 Creative LLC v. Elenis. As noted on SCOTUSblog (here), the issue in 303 Creative is: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” The case promises to resolve important issues left open by the Masterpiece Cakeshop decision. For whatever it may be worth, I predict that the following excerpt from the 10th Circuit’s decision below will be critical to the Supreme Court’s analysis — with SCOTUS rejecting the 10th Circuit’s conclusions.

Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere…. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services…. This case does not present a competitive market. Rather,

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Since there’s absolutely nothing of interest happening in the business world these days, I figure it’s a good time to tell the story of how I tried to reject an arbitration clause when buying a car.

It was 2013, and I’d just moved to Durham, North Carolina to become a Visiting Assistant Professor at Duke.  It was quite the move; other than for schooling and clerkships, I’d spent my entire life – including my legal career – in New York City.  I’d never owned a car or really even driven one before; I had to take driving lessons in advance.  And when I arrived in Durham, I spent the first week frantically researching cars – there’s a difference between make and model, who knew? – before forming my preferences (namely, inexpensive, good gas mileage, and very very safe, to give myself a fighting chance in the all-but-inevitable crash. And small, so I’d also have a fighting chance at staying in a single lane).

I looked at a mix of new cars and used cars before settling on a bright red Kia Rio, gently used from a previous life as a rental.  (Me on test drives is a whole ‘nother story…

As co-blogger Joan Heminway mentioned in Monday’s post, I’m soon heading to Connecting the Threads VI.  I could not be more excited! I’m so grateful to the University of Tennessee Law School for hosting the Symposium, and especially Professors Joan Heminway and George Kuney, in addition to all of the hard-working, excellent law student editorial staff of Transactions: The Tennessee Journal of Business Law, who help with the Symposium and later edit and publish our symposium-related articles.  Paying for Energy Peaks: Learning from Texas’ February 2021 Power Crisis, coauthored with Professor James Coleman, is my latest article in Transactions and my first in the energy space!  Here’s its first paragraph (with footnotes removed):

“From February 14–19, 2021, winter storm Uri blanketed Texas with extreme cold. Tragically, the severe temperatures overwhelmed the state’s power system. Texas’ power grid ended up more than 20 Gigawatts short of the electricity Texans needed – more power than all of California produces on an average day. Over two-hundred lives were lost and an estimated $295 billion in damage resulted. Yet many had long regarded Texas’ electric power system, and its regulation, as a model for others. What happened? That question

I recently had a chance to listen to an episode of the Institutionalized podcast discussing efforts by the American Civil Rights Project to combat the embrace of neo-racism by corporate America. (Cf. “In his new book, Woke Racism: How a New Religion Has Betrayed Black America, Professor John McWhorter argues that a neoracism, disguised as antiracism, is hurting Black communities in this country.”)  In the course of that podcast, Dan Morenoff, Executive Director of the American Civil Rights Project, discussed a relevant recent litigation filing against Starbucks. A copy of the complaint can be found in the ACRP press release here, and here is an excerpt from that release:

Yesterday [8/30/22], for the National Center for Public Policy Research, a longtime Starbucks shareholder, the American Civil Rights Project sued Starbucks’ officers and directors. That suit – NCPPR v. Schultz et al. – seeks both to bar those officers and directors from continuing to implement racially discriminatory policies and to hold them responsible for the harms those policies have done to shareholders. This step follows the parties’ exchange of letters.  In March, the ACR Project wrote the defendants and Starbucks demanding the immediate retraction of seven

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Senators Reed, Warren, and Cortez Masto recently introduced a bill to expand Section 12(g) of the Exchange Act.  The bill, as I understand it, would require that private companies with WKSI-level private valuation, or $5 bill in revenue plus 5,000 employees, would become reporting companies.

I couldn’t find announcements from the sponsoring senators about the purpose of the bill, but there is this floor statement from Sen. Reed:

[T]hese companies have incredible influence over our society and way of life.  … It should be alarming when private companies can become extremely large and influential in our economy and raise unlimited amounts of capital from an unlimited number of investors, while circumventing the basic disclosure and governance requirements that Congress sought to apply…

I wrote a whole article on how securities disclosures are nominally intended for investors, but they are used by other audiences, and the distortive effects of attempting to hijack the securities disclosure system for the benefit of stakeholders.  My point is not that stakeholders don’t deserve disclosure – far from it! – but instead that we should openly create a stakeholder disclosure system rather than continue to filter stakeholder-oriented disclosures through the SEC.

This bill … illustrates the…

The SEC’s investor advisory committee recently released a draft climate disclosure recommendation.  The recommendation generally supported the SEC’s proposal with some suggestions changes.  The recommendation runs just 6 pages but makes a number of thoughtful points. 

It calls for eliminating a proposed requirement for the board to disclose the climate expertise of its members in favor of a requirement for management to discuss climate-related risks and opportunities.  This strikes me as a better approach.  Investors want to have a sense about how the corporation will respond to climate change.  So long as the board can get qualified expert advice, it doesn’t need to have members with direct climate-risk expertise–something that will be difficult to define anyway.

Wentong Zheng has published Corporations As Private Regulators, 55 U. Mich. J.L. Reform 649. The paper can be downloaded here. Below is an excerpt.

In August 2018, technology giant Microsoft made headlines by announcing that it would soon require its suppliers and contractors with more than fifty employees to offer workers at least twelve weeks of paid parental leave.¹ Microsoft’s new policy closely mirrors a Washington state law requiring that workers in the state receive twelve weeks of paid family leave; it is an effort to extend that same level of benefit to workers outside of the company’s home state.²

While groundbreaking for the world of paid family leave, Microsoft’s move was only one example of an increasingly common trend of corporations weighing in on public policy through corporate action. Following the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, Dick’s Sporting Goods banned sales of assault-style weapons and raised the minimum age for purchase of firearms and ammunition in its stores to twenty-one.³ Citigroup placed restrictions on their new retail business clients, prohibiting them from selling guns to customers who have not passed a background check and are under the…