I usually leave the arcana of contract interpretation principles to the specialists, but every now and then I apparently dip my toe in, and this is another of those weeks.

VC Laster’s opinion in In re Anthem-Cigna Merger Litigation tells a truly wild tale.  In brief, Anthem and Cigna agreed to merge, but Cigna’s CEO, David Cordani, wanted to helm the combined entity. When it became clear he wouldn’t get the CEO spot, he began a campaign of sabotage, assisted by Cigna executives who supported his ambitions.  Thus, Cigna’s top leadership hired a PR firm to trash talk the merger while concealing the firm’s involvement from Cigna’s Board.  At one point, Cigna’s General Counsel personally leaked certain letters so they would be disclosed publicly, then tasked her head of litigation with conducting an internal investigation to discover the source of the leak.  Cigna’s foot-dragging with respect to integration planning and responding to regulators was so profoundly passive-aggressive that I felt my blood pressure rising – and this is despite the fact that Anthem was not exactly an angel: it lied in federal court proceedings, and the overall merger would certainly have reduced competition in an already-consolidated industry.

In any event, both sides sued, and Laster ultimately concluded that while Cigna’s breaches were many and varied, the merger would have failed anyway due to regulatory opposition.

But entertainment-value aside, a technical point caught my attention, and that’s the burden of proof framework that Laster adopted, and which is in some tension with the framework articulated by the Delaware Supreme Court in Williams v. ETE, 159 A.3d 264 (Del. 2017).  Notably, however, it’s not clear that the framework was outcome-determinative, and even if it was, the party harmed – Anthem – endorsed Laster’s interpretation in its post-trial briefing, so this couldn’t be grounds for an appeal.

The issue: Sometimes, a party’s obligation to perform on a contract may only be triggered if a particular condition occurs. In that case, if the condition does not occur, the obligation is not triggered.  But, if the party prevented the condition from occurring by breaching its own contractual responsibilities, the party is obliged to perform.

In this case, the performance obligation was the merger itself, subject to the condition that there be no regulatory injunction preventing consummation.  Such an injunction did issue, however, when federal courts held the merger would be anticompetitive.  Thus, the parties were nominally relieved of the obligation to close.  Anthem, however, claimed that Cigna’s lack of cooperation breached its obligations under the merger agreement, which was the cause of the regulatory failure.

Laster agreed that Cigna was flagrantly – nay, ostentatiously – in breach of its obligations to cooperate with regulators and to use its best efforts to close.  Thus, the only question was whether those breaches were responsible for the fatal injunction.  And here’s where the burden of proof issue comes up.

In Williams, the Delaware Supreme Court held, “once a breach of a covenant is established, the burden is on the breaching party to show that the breach did not materially contribute to the failure of the transaction.”  Words to that effect are repeated a couple of times in the opinion (e.g., “if a proper analysis of ETE’s covenants led to a conclusion that ETE breached those covenants, the burden would shift to ETE to prove that its breaches did not materially contribute to the failure of the closing condition”), and CJ Strine in dissent also wrote, “As the Majority notes, under our law if a party establishes a breach of a covenant to bring about a condition at closing, the burden is on the breaching party to show that the breach did not materially contribute to the failure of that closing condition.”

So these statements would suggest that all Anthem needed to do was show that Cigna breached its obligations.  After that, the burden would be on Cigna to show that the breaches did not materially contribute to the failure of the condition, i.e., were not responsible for the issuance of the injunction.

But Laster didn’t see it that way.  Both the Williams majority and the dissent cited in support Restatement § 245 comment b.  That section of the Restatement says:

Where a party’s breach by non-performance contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused.

And the comment reads:

Although it is implicit in the rule that the condition has not occurred, it is not necessary to show that it would have occurred but for the lack of cooperation. It is only required that the breach have contributed materially to the non-occurrence. Nevertheless, if it can be shown that the condition would not have occurred regardless of the lack of cooperation, the failure of performance did not contribute materially to its non-occurrence and the rule does not apply. The burden of showing this is properly thrown on the party in breach.

To Laster, this suggested a more complex burden shifting framework.  First, Anthem would have to show that Cigna breached its obligations in a manner that contributed materially to the issuance of the injunction.  After establishing that, Cigna would have the opportunity to offer an affirmative defense that even if it had cooperated, the injunction still would have issued.  Laster found Williams unclear on this point, I believe, because despite the language I quoted above, it did not distinguish between proof that the breach contributed to the condition’s failure, and proof that lack of a breach would still have led to failure – inquiries that he believed were distinct. And there is precedent from other jurisdictions supporting Laster’s reading, for example, Cox v. Snap, 859 F.3d 304 (4th Cir. 2017) and Cogswell v. CitiFinancial Mortgage, 624 F.3d 395 (7th Cir. 2010).

And so, that’s how he proceeded.  Under this framework, Anthem was unable to make the initial showing that certain of Cigna’s breaches contributed to the injunction, but it did succeed in making that showing with respect to other breaches.  And at that point, the burden switched to Cigna which, Laster concluded, was able to establish that the outcome would have been the same regardless.

Now, all this might be angels-on-pinheads – after all, there were only two Delaware cases that anyone cited regarding this matter, Williams and WaveDivision Holdings, LLC v. Millennium Digital Media Systems, L.L.C., 2010 WL 3706624 (Del. Ch. Sept. 17, 2010) – so it apparently doesn’t come up all that often.  But it does come up.  The Restatement itself offers an illustration involving earn-outs (and, umm, also one involving a husband murdering his wife and then himself, which … okay, we’ll save that for a critical gender studies post), and those apparently have become more popular due to covid-related uncertainty (earnouts, I mean, not murder-suicides), so this is an issue that could have a subtle effect on outcomes in future cases.

No. You didn’t miss Part 1. I wrote about Weinstein clauses last July. Last Wednesday, I spoke with a reporter who had read that blog post.  Acquirors use these #MeToo/Weinstein clauses to require target companies to represent that there have been no allegations of, or settlement related to, sexual misconduct or harassment. I look at these clauses through the lens of a management-side employment lawyer/compliance officer/transactional drafting professor. It’s almost impossible to write these in a way that’s precise enough to provide the assurances that the acquiror wants or needs.

Specifically, the reporter wanted to know whether it was unusual that Chevron had added this clause into its merger documents with Noble Energy. As per the Prospectus:

Since January 1, 2018, to the knowledge of the Company, (i), no allegations of sexual harassment or other sexual misconduct have been made against any employee of the Company with the title of director, vice president or above through the Company’s anonymous employee hotline or any formal human resources communication channels at the Company, and (ii) there are no actions, suits, investigations or proceedings pending or, to the Company’s knowledge, threatened related to any allegations of sexual harassment or other sexual misconduct by any employee of the Company with the title of director, vice president or above. Since January 1, 2018, to the knowledge of the Company, neither the Company nor any of its Subsidiaries have entered into any settlement agreements related to allegations of sexual harassment or other sexual misconduct by any employee of the Company with the title of director, vice president or above.

Whether I agree with these clauses or not, I can see why Chevron wanted one. After all, Noble’s former general counsel left the company in 2017 to “pursue personal interests” after accusations that he had secretly recorded a female employee with a video camera under his desk. To its credit, Noble took swift action, although it did give the GC nine million dollars, which to be fair included $8.3 million in deferred compensation. Noble did not, however, exercise its clawback rights. Under these circumstances, if I represented Chevron, I would have asked for the same thing. Noble’s anonymous complaint mechanisms went to the GC’s office. I’m sure Chevron did its own social due diligence but you can never be too careful. Why would Noble agree? I have to assume that the company’s outside lawyers interviewed as many Noble employees as possible and provided a clean bill of health. Compared with others I’ve seen, the Chevron Weinstein clause is better than most.

Interestingly, although several hundred executives have left their positions due to allegations of sexual misconduct or harassment since 2017, only a small minority of companies use these Weinstein clauses. Here are a few:

  1. Merger between Cotiviti and Verscend Technologies:

Except in each case, as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, to the Knowledge of the Company, (i) no allegations of sexual harassment have been made against (A) any officer or director of the Acquired Companies or (B) any employee of the Acquired Companies who, directly or indirectly, supervises at least eight (8) other employees of the Acquired Companies, and (ii) the Acquired Companies have not entered into any settlement agreement related to allegations of sexual harassment or sexual misconduct by an employee, contractor, director, officer or other Representative.

  1. Merger between Genuine Parts Company, Rhino SpinCo, Inc., Essendant Inc., and Elephant Merger Sub Corp.:

To the knowledge of GPC, in the last five (5) years, no allegations of sexual harassment have been made against any current SpinCo Business Employee who is (i) an executive officer or (ii) at the level of Senior Vice President or above.

  1. AGREEMENT AND PLAN OF MERGER BY AND AMONG WORDSTREAM, INC., GANNETT CO., INC., ORCA MERGER SUB, INC. AND SHAREHOLDER REPRESENTATIVE SERVICES LLC:

(i) The Company is not party to a settlement agreement with a current or former officer, employee or independent contractor of the Company or its Affiliates that involves allegations relating to sexual harassment or misconduct. To the Knowledge of the Company, in the last eight (8) years, no allegations of sexual harassment or misconduct have been made against any current or former officer or employee of the Company or its Affiliates.

  1. AGREEMENT AND PLAN OF MERGER By and Among RLJ ENTERTAINMENT, INC., AMC NETWORKS INC., DIGITAL ENTERTAINMENT HOLDINGS LLC and RIVER MERGER SUB INC.:

(c) To the Company’s Knowledge, in the last ten (10) years, (i) no allegations of sexual harassment have been made against any officer of the Company or any of its Subsidiaries, and (ii) the Company and its Subsidiaries have not entered into any settlement agreements related to allegations of sexual harassment or misconduct by an officer of the Company or any of its Subsidiaries.

Here are just a few questions:

  1. What’s the definition of “sexual misconduct”? Are the companies using a legal definition? Under which law? None of the samples define the term.
  2. What happens of the company handbook or policies do not define “sexual misconduct”?
  3. How do the parties define “sexual harassment”? Are they using Title VII, state law, case law, their diversity training decks,  the employee handbook? None of the samples define the term.
  4. What about the definition of “allegation”? Is this an allegation through formal or informal channels (as employment lawyers would consider it)? Chevron gets high marks here.
  5. Have the target companies used the best knowledge qualifiers to protect themselves?
  6. How will the target company investigate whether the executives and officers have had “allegations”? Should the company lawyers do an investigation of every executive covered by the representation to make sure the company has the requisite “knowledge”? If the deal documents don’t define “knowledge,” should we impute knowledge?
  7. What about those in the succession plan who may not be in the officer or executives ranks?

Will we see more of these in the future? I don’t know. But I sure hope that General Motors has some protection in place after the most recent allegations against Nikola’s founder and former chairman, who faces sexual assault allegations from his teenage years. Despite allegations of fraud and sexual misconduct, GM appears to be moving forward with the deal, taking advantage of Nikola’s decreased valuation after the revelation of the scandals.

I’ll watch out for these #MeToo clauses in the future. In the meantime, I’ll ask my transactional drafting students to take a crack at reworking them. If you assign these clauses to your students, feel free to send me the work product at mweldon@law.miami.edu.

Take care and stay safe.

This Friday, Professor Art Wilmarth’s new book, Taming the Megabanks: Why We Need a New Glass-Steagall Act (Cambridge University Press), will be released.  Wilmarth recently published an overview of his work on Duke Law School’s FinReg Blog, a paragraph of which is below: 

Taming the Megabanks contends that we must adopt a new Glass-Steagall Act to separate banks from securities markets. A new Glass-Steagall Act would restore financial stability and ensure that our financial system serves Main Street business firms and consumers instead of Wall Street speculators. Universal banks would be broken up and would no longer dominate our financial system. Shadow banks would shrink substantially because they could no longer fund their activities by offering short-term financial instruments that function as substitutes for deposits. A more decentralized and competitive financial system would provide better services to commerce, industry, and society. 

I’m really looking forward to receiving my copy, purchased for a very reasonable $34.95!  I’ve read many of Wilmarth’s articles, and I’ve always learned a lot from each one.  A LOT!

BLPB(CircusPhoto)Photo Credit: Pixabay

With almost six weeks of hybrid Business Associations classes now under my belt (and many more to go), I wanted to share a bit more about my experience teaching in the hybrid classroom.  This follows and builds on my post from the beginning of the semester offering initial impressions (based on my Professional MBA teaching experience).  As I noted in that post, technology can differ from classroom to classroom.  As a result, my observations here (which are based on a hybrid course with an in-class projection system featuring a camera  and document camera and an online component hosted on Zoom), may not hold in other teaching environments.  Hopefully, however, some of what I have to say here may be useful to some of you . . . .

Teaching a hybrid course is a bit like managing a three-ring circus.  Ring #1 is your in-class student population, #2 is your online students population, and #3 is your technology.  It is a lot to pay attention to.  I find it more than a bit exhausting.

I have 63 students in total in Business Associations this fall.  That is a bit low but within a normal range for that course in the fall semester.  Six of the students are “synchronous online only”; the remaining 57 rotate into and out of class–roughly half attending in person Mondays and every other Friday and the remainder attending in person on Wednesday and alternate Fridays.  I have a “producer” teaching assistant who participates online to (1) monitor the chat for me, (2) encourage student camera usage and microphone muting, and (3) help handle breakout room monitoring.  She also has helped to identify issues with sound–in particular when online folks are having trouble hearing their me or in-person colleagues.

My biggest gaffs so far include the following:

  • Clicking on “Leave Meeting” instead of closing the chat box as I was about to begin class and, as a result, kicking all of my online students out of class;
  • “Pinning” (highlighting) the video footage of the wrong student named Morgan for projection on the in-class screen (thinking I had called on her–but there are two women named Morgan in the class) and not realizing the mistake because the video of the other Morgan was so dark; and
  • Calling for tech help when the in-room camera was not capturing/showing video (my Zoom square was black–showing no video), when, in fact, the issue was that my Zoom video had defaulted to the document camera (which was not then deployed).

Notwithstanding these issues, based on the first writing assignment in the course and questions during my office hours, students in the course are learning!  Business Associations is hard to learn (and teach) in a traditional classroom environment.  The hybrid classroom is not ideal for many reasons–including without limitation the fractured attention span created by the three-ring-circus.  I truly feared that the combined experience of teaching Business Associations in a hybrid environment would be overwhelming for students.  But by speaking loudly, repeating student questions and comments, reaching out visually to students in both environments as directly as possible, and keeping technology usage simple and targeted, I seem to be communicating relevant information effectively, and as a group, we seem to be staying engaged with each other.  Fingers crossed all of that continues . . . .

I would be missing an important aspect of all of this if I did not mention my biggest pandemic teaching silver lining so far: feeling the love of my students–seeing them come to class in person, complying with numerous restrictions on their lives. and hearing from them in a positive way.  The number of students who have reached out in genuine ways to thank me for working hard on their behalf to produce class has been so gratifying.  This past week, I even had a student from last year reach out to check in on me.  The patience, flexibility, and compassion of my students has been remarkable.

So, I am surviving, and even striving to thrive.  It is like learning how to teach all over again some days.  But the students make it all worthwhile. 🧡

 

The SEC made its long-awaited revisions to Rule 14a-8, which dramatically increase the dollar investment requirements, add a new prohibition on allowing shareholders to aggregate their holdings to meet those requirements, prohibit shareholder representatives from advancing proposals on behalf of more than one shareholder per meeting, and raise the resubmission thresholds, among other things.  In practical effect, these rules make it much more difficult for retail shareholders – who are unlikely to hold $15K or $25K of a single company’s stock in their portfolio – to advance proposals.  And, as Yaron Nili and Kobi Kastiel have documented, retail shareholders (and specific retail shareholders at that) have been the driving force behind a large number of proposals.  They find that – despite critics’ claims that these “gadflies” are advancing a personal agenda – their proposals frequently win majority support.  Thus, important corporate governance innovations have been driven, in part, by proposals advanced by retail investors.

Retail investors are not the only ones who advance proposals, though; pension funds do, as well.  That’s where the Department of Labor comes in.  As I previously blogged, the DoL has proposed new rules that would sharply limit ERISA plans’ ability to participate in corporate governance; assuming the rule goes into effect, that would knock out another source of proposals (and voting support for them).

So who’s left?

ESG/sustainability-focused funds sometimes advance proposals, and that’s a growing field.  We know, however, that funds’ commitments to ESG – and their involvement in governance – varies tremendously, and so only a handful of funds may be participating in this space.

That leaves unusually wealthy/concentrated retail investors, and public pension funds, which are not subject to ERISA.

What about ordinary mutual funds?  Up until now, ordinary mutual funds never advance proposals, though they will vote in favor of them.  Nili and Kastiel argue that funds’ operate under various conflicts that make them uncomfortable taking the lead.  As I previously blogged, these funds actually supported the new restrictions (and even more draconian changes to the resubmission rules that were not enacted); this is because, I believe, they are not only subject to public scrutiny as to how they cast their votes, but they are also on the receiving end of proposals, and would like to relieve that pressure.  And when it comes to the Big Three and other large managers, it’s not as though they need a proposal to get management’s attention; they’re more than capable of quietly demanding operating changes if they want them.  Proposals are more likely to be a vehicle for shareholders who do not have that kind of influence individually.

Thus, one of the immediate effects of the rule change may be to take mutual funds out of the spotlight; their governance interventions (or lack thereof) will become immediately less transparent to investors and the public, and less easy to monitor.  Which is ironic, considering the Commission’s expressed concern about funds that sell a false narrative about their sustainability efforts.

Another irony is that many proposals seeks disclosure of more sustainability information – precisely the information the SEC has refused to require be disclosed because, the Commissioners have argued, relevant information varies from company to company.  Proposals are used to obtain company-specific information, and now that avenue will be narrowed, if not entirely closed.

I suspect, though, that ESG activists are a creative bunch, and we will see new proponents entering the space.  In a crowded ESG field, for example, some funds may find that advancing proposals can burnish their public reputations and attract new investment.  One possibility would be to proceed the way the proxy access project did, by advancing proposed bylaws that would lower the investment threshold at each company on a case-by-case basis.  Big Three opposition would be a serious stumbling block, but considering how much BlackRock and State Street, in particular, tried to hide their support for the new restrictions behind the Investment Company Institute, they might be persuaded to support at least limited, expanded access at specific companies.

FINRA recently filed a rule proposal with the SEC to alter, yet again, it’s rules for facilitating the deletion of customer complaint information from the Central Registration Depository database.  The proposal will likely do some good, but doesn’t seem to meaningfully increase the likelihood that this adversarial process will reliably surface relevant information.  Still, FINRA contends that the changes aim to “place an arbitrator or panel in a better position to determine whether to recommend expungement of customer dispute information, and thereby help ensure the accuracy of the customer dispute information contained in the CRD system and displayed through BrokerCheck.”  The raft of proposed changes effectively concede that for years the current system has not ensured that arbitrators were well-situated to decide these expungement claims.

For the most part, the proposal codifies existing guidance, adds some time limits, and aims to address other known issues.  For example, a broker would not be able to request expungement if “more than six years have elapsed since the date that the customer complaint was initially reported to the CRD system” or more than two years after the close of an arbitration filing.  The proposal also bars “straight-in” expungement requests against customers–something that only rarely occurs.  Although it doesn’t seem to set out the form of notice a broker must use to tell a customer they will be calling them a liar in an expungement hearing, it does require the broker to give the panel a copy of the notice sent to the customer.  

Notably, the proposal also tackles the current lopsided selection effect for arbitrators who grant expungements.  The new proposal just gives the parties in a straight-in expungement request three random arbitrators. This is how the proposal describes the change, “to minimize the potential for party influence in the arbitrator selection process, the proposed rule change would require NLSS randomly to select the three public chairpersons from the Special Arbitrator Roster to decide an expungement request filed by an associated person.”  This is a meaningful improvement from the current system which allows only named parties to rank and strike arbitrators–likely skewing the selection process in favor of the most reliable rubber stamps.

Collectively, the proposed changes seem likely to do some good.  Yet they all seem to mostly nibble around the edges of the problem.  The proposal doesn’t solve the major incentive mismatch.  Customers have no real reason to burn their resources (likely already depleted because of an investment loss) to oppose an expungement request.  The customers have nothing to gain.  They have no real reason to make sure that a panel receives a complete briefing on the relevant facts and issues.  In contrast, the broker and respondent (which is often the broker’s employer) do have real reasons to want to get the request granted.  The proposed changes may take away some of the thumbs currently on the scales, but they don’t seem likely to reliably produce informed decisions by the arbitrators considering these requests.

Assuming this goes into effect, my prediction is that grant rates for expungements probably will not substantially change.  Absent some other factor influencing the process, I doubt customers will participate in much greater percentages than they now do.

This is the fourth installment of a multi-part guest blog presenting some of the results of the first comprehensive, large-scale, national survey of public attitudes regarding insider trading. My co-authors (Jeremy Kidd and George Mocsary) and I present the survey’s complete results in our forthcoming article, Public Perceptions of Insider Trading. This installment focuses on the public’s views concerning the ethics of insider trading in different factual scenarios.

The survey presented each respondent with five basic insider-trading scenarios. In each scenario, the inside information pertained to the acquisition of a small company by a larger company. Respondents were placed in the shoes of (1) the CEO of the small firm being acquired by the larger firm; (2) a janitorial employee of the small firm; (3) an outside accountant hired to audit the small firm; (4) the friend of a middle manager of the small firm who learns the inside information at a holiday party; and (5) a stranger who overhears the material nonpublic information in an elevator. The survey instrument randomly directed respondents down multiple question paths for each of these scenarios. I will summarize just some of the results for the CEO scenario in this post, but see here for the complete results.

When asked whether it would be ethical for the CEO of the smaller company to trade in her own company’s shares based on material nonpublic information of the imminent acquisition, 37% said yes. That number increased to 50%, however, when respondents were asked if it would be ethical for the CEO to trade in the larger, acquiring company based on the same information. The 13-point difference may be explained by the fact that the CEO’s trading in her own company implicates both the classical and misappropriation prohibitions for insider trading under our current enforcement regime, while trading in the other firm’s shares would only implicate the misappropriation theory. Under the classical theory, the harm of insider trading is said to stem from a breach by the insider of a duty to disclose to her company’s current or prospective shareholders on the other side of the trade (so this theory would not apply to the trade in the other, large company’s shares). Under the misappropriation theory, the harm of insider trading is located in a breach of duty to the source of the information (so in both scenarios the source is the same). The difference in responses therefore suggests there are some respondents whose intuitions align with either the classical theory or the misappropriation theory, but not both.  If all respondents found the classical and misappropriation theories equally compelling, we would not expect a difference.

After providing their initial answers to these scenario-based questions, respondents were then presented with a short piece of propaganda about insider trading. They were offered a statement suggesting either that insider trading has positive, negative, or neutral consequences for markets. The propaganda had a surprising impact. For instance, respondents were much more willing (by a margin of 9%) to condone the CEO’s trading in his own company’s shares (46%) after having been presented with the short propaganda piece. These results suggest that the public’s ethical views concerning even the most straightforward insider-trading scenarios under our current enforcement regime are neither clear nor firm.

(Modified on 9/24/20 at 11:30 am CST)

As we continue to move through the Fall 2020 semester in “pandemic mode” (whatever that may be for you), the investments of colleagues in their teaching continues to amaze me.  The number of teaching webinars and conference panels has been truly awesome, starting in the spring and continuing through the present.  Social media posts on Facebook and Twitter offer individualized tips and the opportunity for innovators to build from them and post their responsive comments and additional advice.  My friend Jessica Erickson (Richmond Law) wrote an excellent series of Prawfsblog posts at the end of the summer, the last of which can be found here (with links to the earlier posts in the series).  Law faculties (including my own) are checking in with each other on challenges and victories on a regular basis.  Although the experiences of others may be different, I have felt supported (and very much like I am part of a team) the whole way along.

Among the more stimulating–and daunting–parts of pandemic teaching presentations and conversations are those relating to the introduction of new teaching technologies.  We have all dealt with this part of COVID-19 teaching in some respects and in our own ways.  Some of us are more comfortable with technology than others.  There’s Zoom and the like, of course, but then there also are routers, and cameras, and lighting, and more.  (I had never heard of a “ring light,”, for example, until the COVID-19 pandemic was in full force.)  I have been impressed by the extent to which colleagues not only have found technological solutions to some of the novel teaching issues that have arisen during the pandemic, but also have been willing to promote these solutions to colleagues and educate them on their use.

Over the weekend.  I became aware that my UT Law colleague Glenn Reynolds had written a short piece on his use of a relatively simple three-camera system he has constructed (in his pool house!) to improve the production quality of his online classes.  He is teaching exclusively online this semester.  The piece, TIRED OF LOOKING GRAY AND BORING ONLINE? A SIMPLE 3-CAMERA TV STUDIO/CLASSROOM FOR LIVELY ONLINE TEACHING, is posted on SSRN here.  The exceedingly short abstract is as follows:

Tired of the dreary webcam-look in my online classroom, I created a fairly simple and reasonably inexpensive three-camera studio using real video cameras for online teaching. This paper outlines how it was done, and provides suggestions for simpler, cheaper alternatives that are still far superior to traditional webcam approaches.

Glenn includes photographs in his brief treatment to better illustrate the camera functionality and his own working view, which I found really helpful.  He also is very specific about the human resources he consulted, the equipment he has chosen to use (and why), and the expenses associated with doing what he has done.  I share it here for your consideration.  The more we can share our victories–as well as our challenges–with each other, the easier it will be for us all to survive (and even thrive) in our teaching through the pandemic.

Thanks to friend of the BLPB Christina Sautter for sending along the following hiring announcement:

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire a tenure-track faculty member in commercial law, including, but not limited to, bankruptcy. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and publications or promise of productivity in legal scholarship, as well as a commitment to outstanding teaching.  

We additionally seek to hire a full-time faculty member with security of position to direct the Immigration Law Clinic as part of LSU Law’s Experiential Education Program. The Immigration Law Clinic is a fully in-house, one-semester, 5 credit clinic in which students represent non-citizens in their defensive proceedings before the Executive Office of Immigration Review (EOIR) and affirmative applications with U.S. Citizenship and Immigration Services (USCIS) Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, substantial experience in Immigration practice and be admitted and in good standing in a U.S. jurisdiction. Prior clinical teaching experience and fluency in Spanish is preferred. We may consider applications from persons who specialize in other areas as additional needs arise. 

We also seek to hire a full-time Assistant Professor of Professional Practice to teach legal analysis and writing. A successful candidate will teach the fundamentals of legal reasoning and writing by way of predictive and objective memoranda in the fall semester and advance those skills by teaching persuasive writing of an appellate brief and appellate oral advocacy in the spring semester. The legal writing faculty collaboratively develop the course materials that are used across the 1L curriculum. Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, and should have at least two to three years of post-J.D. experience in a position or positions requiring substantial legal writing. 

The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty. We particularly welcome and encourage applications from female and minority candidates.         

Applications should include a letter of application, resume, references, and teaching evaluations (if available) to:  

Christina M. Sautter 
Chair, Faculty Appointments and Adjuncts Committee 
c/o Pam Hancock (or by email to phancock@lsu.edu) 
Paul M. Hebert Law Center 
Louisiana State University 
1 East Campus Drive 
Baton Rouge, Louisiana 70803-0106

Cheryl Wade and Janis Sarra have a new book out entitled, Predatory Lending and the Destruction of the African-American Dream.  It’s available to order now.  My copy is on the way and I’m looking forward to getting into it.  The authors describe the book this way:

Since the Great Recession of 2008, the racial wealth gap between black and white Americans has continued to widen. In Predatory Lending and the Destruction of the African-American Dream, Janis Sarra and Cheryl Wade detail the reasons for this failure by analyzing the economic exploitation of African Americans, with a focus on predatory practices in the home mortgage context. They also examine the failure of reform and litigation efforts ostensibly aimed at addressing this form of racial discrimination. This research, augmented by first-hand narratives, provides invaluable insight into the racial wealth gap by vividly illustrating the predation that targets African-American consumers and examining the intentionally obfuscating settlement terms of cases brought by the U.S. Department of Justice, states attorneys, and municipalities. The authors conclude by offering structural, systemic changes to address predatory practices. This important work should be read by anyone seeking to understand racial inequality in the United States.

Predatory lending in the home mortgage market has been in the news before.  I recall this Times article detailing some allegations that Wells Fargo and other lenders steered African-American borrowers into subprime loans when white applicants with similar credit profiles were offered better rates and prime loans. These kinds of lending practices would undoubtedly contribute to the enormous wealth gap between black and white Americans.