Over at Law & Liberty, James Rogers reviews Cass Sunstein’s “Too Much Information: Understanding What You Don’t Want to Know.”  Below is a brief excerpt from the review.  There are apparently at least some references to the SEC in the book.

[Sunstein] writes, “The primary question in this book is simple: When should government require companies, employers, hospitals, and others to disclose information?” His answer, he writes, is simple, although perhaps deceptively simple. Government should require disclosure “When information would significantly improve people’s lives.” The surprise is that the book focuses mainly on the argument that making judgment of when disclosure “improves people’s lives” can be so complicated that government policymakers often should not attempt it except under carefully identified conditions…. The book reads almost as though Sunstein started the book with one hypothesis in mind—that he would develop a framework that would help with developing sensible government disclosure policies going forward—but he instead became increasingly skeptical of his initial project as he worked through the research.

Professor Megan Wischmeier Shaner (Associate Dean for Research & Scholarship; President’s Associates Presidential Professor of Law, University of Oklahoma College of Law) recently published Privately Ordered Fiduciaries (28 Geo. Mason L. Rev. 345 (2020)). Below is an excerpt from the Introduction that might be of interest to readers.

Over the past two decades, legal and practical hurdles to developing doctrine addressing the corporate officer have been cleared away. In 2004, the Delaware Code was amended to provide for personal jurisdiction over nonresident officers of Delaware corporations. “Around this same time there was a dramatic shift underway in corporate governance norms that had been buttressed by federal regulation to create greater board independence from officers.” With fewer board seats occupied by company executives, officer conduct was no longer reliably regulated by bootstrapping obligations to an officer’s concurrent director status, underscoring the need for specific rules addressing officer obligations.

The separation of director and officer status in public corporations led to a heightened focus on officers as distinct legal actors in the corporation and on the accompanying legal standards that would govern them. The Delaware Supreme Court’s 2009 decision in Gantler v. Stephens clarified, in part, the fiduciary obligations and accountability of

So much so, it seems, that they will go out of their way to make sure a securities fraud claim survives a motion to dismiss.

I speak of In re Mindbody Securities Litigation, 2020 WL 5751173 (SDNY Sept. 25, 2020) and Karri v. Oclaro, 2020 WL 5982097 (N.D. Cal. Oct. 8, 2020).

The problem for courts in this context is that projections of future performance are protected by the PSLRA safe harbor.  Which means, faced with plausible allegations that corporate insiders were talking down the stock’s potential in order to persuade shareholders to accept a bad deal, courts feel they need to find some other basis on which to sustain the claim.

In Mindbody – the facts of which are also colorfully described in a related Chancery action for breach of fiduciary duty – that basis turned out to be the defendants’ statements about the value of the merger consideration relative to the (artificially low) stock price.  The defendants were alleged to have intentionally lowballed their earnings guidance in order to sink the stock, so that the merger offer would seem generous by comparison.  But by the end of the quarter, defendants had in their possession the true

Amid the transition, the SEC continues to oversee rulemaking on expungement.  I gave some initial thoughts in my last post before putting another comment letter together.  FINRA does deserve some real credit for attempting to improve the process.  Still, you shouldn’t have much confidence in the overall system because it’s not built in a way that is likely to surface relevant information for the arbitrators making the only meaningful decisions in the process.  Today, if you find out a broker had an expungement, all you really know is that the broker is three times as dangerous to you as the average broker.  You should probably just avoid doing business with the broker.  It’s hard to see how winning expungements in the current system would cause rational and well-informed investors to trust a broker if they knew about the expungement.

Under the current rules and the Amended Proposal, arbitrators will continue to apply inconsistent evidentiary standards before recommending expungements.  My initial letter showcased an arbitrator using a preponderance standard.  This second one presented another one who concluded that something more than a preponderance standard must apply.  Despite the inconsistent standards already being applied within its forum, FINRA has declined to articulate

Via Christopher Rufo (here):

Today, President Biden rescinded the Trump executive order banning critical race theory training programs from the federal government.

Critical race theory is a grave threat to the American way of life. It divides Americans by race and traffics in the pernicious concepts of race essentialism, racial stereotyping, and race-based segregation—all under a false pursuit of “social justice.” Critical race theory training programs have become commonplace in academia, government, and corporate life, where they have sought to advance the ideology through cult-like indoctrination, intimidation, and harassment.

It is time to fight back. Last year, I declared a “one-man war” against critical race theory, which led to the presidential order banning these trainings from the federal government. Today, I am announcing a new coalition of law firms and legal foundations with the explicit goal of fighting critical race theory in the courts. This coalition, called Stop Critical Race Theory, has already filed three lawsuits against public institutions conducting critical race theory programs and, in the coming months, will file additional lawsuits in the state and federal courts.

Our ambition is to take one of these cases to the United States Supreme Court and establish that

BLPB readers:

Wow, a great resource is now available: Digital and Digitized Assets: Federal and State Jurisdictional Issues: Download ABA Digital Assets White Paper Updates (December 2020 Final)

The paper was prepared by the Innovative Digital Products and Processes Subcommittee Jurisdiction Working Group of the Derivatives and Futures Law Committee of the American Bar Association.  It’s an update of a March 2019 version and is organized into 7 sections:

Section 1: Background on Digital Assets and Blockchain Technology

Section 2: Commodity Exchange Act and CFTC Regulation

Section 3: Federal Securities Regulation: Securities Act and Exchange Act

Section 4: Federal Securities Regulation: Investment Company Act and Investment Advisers Act

Section 5: The Need for a Better CFTC and SEC Regulatory Scheme for Digital Assets

Section 6: FINCEN Regulation

Section 7: International Regulation of Digital Assets and Blockchain Technology

Section 8: State Law Considerations

Lastly, the Derivatives and Futures Law Committee is (virtually) having their Winter Meeting next week.  I’m really looking forward to the event and would love for other BLPB readers to join! 

Dear BLPB readers,

I wanted to share about great opportunity that I learned about from Professor Laurie Lucas at Oklahoma State University, a Member of the Governing Committee of the Conference on Consumer Finance Law (thanks, Laurie!!):

Those of you who may have interest in consumer finance, FinTech, antitrust issues, or the use of nonfinancial alternative data in this space are invited to attend this free program sponsored by the Conference on Consumer Finance Law and George Mason University Scalia Law School. During this program, three members of the CFPB’s Taskforce on Federal Consumer Financial Law will discuss the report and its key recommendations.  
 
This program, “New Directions for Consumer Finance Law.  An Insider’s Look at the Report of the CFPB’s Taskforce,” is scheduled for Feb. 11, 2021, 12:00 – 1:30 p.m. EST. Registration is free, but closes February 8, 2021. (No CLE is available for this event.) Flyer is here: Download Ccfl_feb_webinar
 

[I found the following in my inbox this morning and subsequently received permission from Dean Peters to republish it here.]

Dear members of the Akron Law family,

Over the weekend, I revisited Martin Luther King Jr.’s astounding Letter from a Birmingham Jail.  If you haven’t read it, or haven’t read it recently, it is worth ten minutes of your time on this day devoted to Dr. King’s legacy.  (Be aware that Dr. King twice repeats an offensive epithet in the Letter to describe racist insults in the South.)  Letter from a Birmingham Jail is essential reading for all Americans, and it carries particular significance for lawyers.

Dr. King wrote Letter from a Birmingham Jail in April 1963, at the height of the Civil Rights Movement and a few months before his “I Have a Dream” speech in Washington.  He and his colleagues had been arrested for illegally marching to protest segregation in Birmingham, Alabama, the fiefdom of the infamous Theophilus Eugene “Bull” Connor and his fire hoses and police dogs.  While Dr. King sat in jail, a group of white Alabama clergymen published an open letter denouncing King’s methodology of public (and sometimes illegal) protest and resistance.  The white

It really boils down to this: that all life is interrelated. We are all caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. We are made to live together because of the interrelated structure of reality.

Did you ever stop to think that you can’t leave for your job in the morning without being dependent on most of the world? You get up in the morning and go to the bathroom and reach over for the sponge, and that’s handed to you by a Pacific islander. You reach for a bar of soap, and that’s given to you at the hands of a Frenchman. And then you go into the kitchen to drink your coffee for the morning, and that’s poured into your cup by a South American. And maybe you want tea: that’s poured into your cup by a Chinese. Or maybe you’re desirous of having cocoa for breakfast, and that’s poured into your cup by a West African. And then you reach over for your toast, and that’s given to you at the hands of an English-speaking farmer, not to mention the baker. And before you

I’ve previously lamented the blurring of the lines of corporate and contract law, usually arising in the context of forum selection provisions in bylaws or charters that are treated as indistinguishable from ordinary contracts.  My most recent post on this concerned the dismissal of a Section 11 case against Uber; shortly thereafter, another California court dismissed claims against Dropbox, in a decision which I may or may not discuss in more detail at a later date.

As Kyle Wagner Compton, author of the invaluable Chancery Daily, recently brought to my attention, in Mack v. Rev Worldwide, VC Zurn went in the opposite direction.  The plaintiff, John Mack (yes, that John Mack) argued that he was not bound to the forum selection clauses contained in certain Notes that he held because he had not assented to them.  Zurn held that he had agreed to provisions that allowed the Notes to be amended by a vote of a majority of the noteholders, and he was thus bound by clauses added through that process.  On that holding I express no opinion.  What does grab me, however, is that Zurn supported this decision by reference to the forum selection