The Federalist Society has posted a review of the oral argument in Mallory v. Norfolk Southern (here):

Under Pennsylvania law, a foreign corporation “may not do business in this Commonwealth until it registers” with the Department of State of the Commonwealth. State law further establishes that registration constitutes a sufficient basis for Pennsylvania courts to exercise general personal jurisdiction over that foreign corporation. Norfolk Southern Railway objected to the exercise of personal jurisdiction, arguing that the exercise violated the Due Process Clause of the Fourteenth Amendment. The trial court agreed and held Pennsylvania’s statutory scheme unconstitutional. The Pennsylvania Supreme Court affirmed. The Supreme Court is to decide if a state registration statute for out-of-state corporations that purports to confer general personal jurisdiction over the registrant violates the Due Process Clause of the Fourteenth Amendment.

Look there are two massive business stories right now – FTX and Twitter – and I have worked very, very hard to avoid learning anything about crypto, so Twitter it is.

Eventually there will be writing – so much writing – about all of this (me and everyone else), but as I type, it’s being reported that there has been a massive exodus of Twitter employees who largely do not want to work for Elon Musk; Musk, in a paranoid fear of sabotage, locked all employees out of the offices until Monday before demanding they all fly to San Francisco for a meeting on Friday, and engineers responsible for critical Twitter systems left.  Most of us who are actually on Twitter are waiting for one big bug to take the system down (I’ve set up an account, by the way, at Mastodon).  And maybe that won’t happen – maybe Musk will eventually turn things around – but he’s certainly made things a lot more difficult for himself in the interim.

I’ll save my bigger lesson musings for other formats, but for now, I’ll make a minor point: the Delaware Court of Chancery did not, of course…

About a month ago, I covered a lawsuit challenging FINRA’s constitutional status.  A review of the docket since that time reveals motions for two Gibson Dunn lawyers to appear on behalf of FINRA, Amir C. Tayrani and Alex Gesch.  FINRA’s Answer in the matter is set to be filed on December 12th.

What conclusions can be drawn from FINRA’s decision to bring the Gibson Dunn team out for the matter?  At the very least, a review of Tayrani’s resume shows that FINRA takes the challenge seriously.  Tayrani’s biography states that he has briefed 21 cases on the merits at the Supreme Court and lists some standout wins, including:

• Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011):  Decision decertifying the largest employment-discrimination class action in history.
• Citizens United v. FEC, 558 U.S. 310 (2010):  Landmark campaign-finance ruling recognizing the First Amendment right of corporations to make expenditures in support of political candidates.

Given the current composition of the Supreme Court, FINRA is likely making the right decision to invest heavily in its defense early on in this matter.  When I wrote about the risk posed by these kinds of challenges in Supreme Risk, I highlighted the…

My Akron Law colleague Camilla Hrdy recently published The Value in Secrecy in the Fordham Law Review.  You can find the SSRN version here.  Below is the abstract.

Trade secret law is seen as the most inclusive of intellectual property regimes. So long as information can be kept secret, the wisdom goes, it can be protected under trade secret law, even if patent and copyright protections are unavailable. But keeping it a secret does not magically transform information into a trade secret. The information must also derive economic value from being kept secret from others. This elusive statutory requirement–called “independent economic value”–might at first glance seem redundant, especially in the context of litigation. After all, if information had no value, why would the plaintiff have bothered to keep it secret, and why would the parties be arguing over the right to use or disclose it? Surely, well-kept secrets that end up in court must be valuable.

That assumption is pervasive. But it is wrong. Secrecy does not demonstrate value. Even a company’s best-kept secrets might be commercially worthless if vetted against what is known in the rest of the industry. Nor does the decision to pursue litigation indicate

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I previously posted about the increasing use by shareholders of proxy-exempt solicitations under Rule 14a-6(g).  That rule allows shareholders who are not seeking proxy authority to solicit other shareholders without filing a proxy statement, but under some circumstances, any holder of more than $5 million of stock must file their written solicitation materials with the SEC.  These days, however, even shareholders who do not need to file with the SEC choose to do so voluntarily, because EDGAR serves as a convenient and cheap mechanism by which materials can be distributed to other shareholders.

Well, Dipesh Bhattarai, Brian Blank, Tingting Liu, Kathryn Schumann-Foster, and Tracie Woidtke have just done a study of these solicitations: Proxy Exempt Solicitation Campaigns.  They find that a variety of institutional investors make these filings, including public pension funds (38%), union funds (26%), and other institutions, including hedge funds (22%).  The filings may be used to support shareholder proposals that are already on the ballot – and thus to exceed the 500-word limit for such proposals – and to oppose management proposals, such as director nominations and say-on-pay.  And these filings are taken seriously: 74% of them are accessed by a major investment bank, and…

Back in September, I posted about the Buzzfeed case that I was watching in Delaware Chancery.  Well, now a decision has issued, and the whole situation remains intriguing. 

In Buzzfeed v. Anderson, employees of privately-held Buzzfeed signed an arbitration agreement with the company concerning their employment, and also received equity compensation.  Buzzfeed went public via a SPAC merger, whereby the old private company became the subsidiary of the publicly-traded SPAC.  Employees’ equity comp was converted into stock of the new, publicly traded entity, but, through a series of unfortunate events, they were unable to trade for the first few days.  That cost them a lot, because the stock price plummeted immediately thereafter.  Relying on their employment agreements, the employees brought mass arbitration claims against the public company and several insiders.  Those defendants then sued in Delaware for a declaration that they were not bound by the arbitration agreement, and that in fact the employees were bound to bring any claims in Delaware, because the new, publicly traded entity had a forum selection provision in its charter.

In her decision, Vice Chancellor Zurn held that the arbitration clause did not apply to the company defendants (now plaintiffs in the Delaware…

I’ve often been skeptical about how vigorously regulatory groups will police their members.   A recent membership revocation from the CFP Board showed little tolerance for one financial services professional’s failure “to treat fellow professionals and others with dignity, courtesy, and respect in violation of Standard A.7 of the Code of Ethics and Standards of Conduct (Code and Standards). ” 

That rule provides that “A CFP^® professional must treat Clients, prospective Clients, fellow professionals, and others with dignity, courtesy, and respect.”  What does that mean?  Well, I can tell one thing the CFP Board thinks it requires you not to do.

The public release details how David R. Nute of Sequim, Washington responded to a client who asked about dropping some documents off in person: 

a former prospective Client, who submitted a written grievance to CFP Board, asked Mr. Nute if she could drop off copies of documents needed for a potential transaction in person at his office, rather than transmit them electronically. When Mr. Nute responded that his time was “too valuable” to make the trip to his office to pick up the documents, the former prospective Client sent him an email stating that she no longer desired

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