The Drexel University Thomas R. Kline School of Law invites applications from entry-level as well as pre- and early-tenure lateral candidates for one full-time, tenured/tenure-track position expected to begin in fall 2025. While we have needs in many curricular and research areas, we have particular needs in environmental law, international law, legal methods, criminal procedure, evidence, tax, private law, and required first year subjects. 

Candidates must have a demonstrated record of significant scholarly achievement and commitment to excellent teaching. Tenure stream faculty are expected to engage in significant research and demonstrate educational, methodological, or practice backgrounds that add vitality to their work. Drexel University and the law school are committed to cross-campus collaboration and research that extends beyond disciplinary borders, with a strong interest in Law and Society research. 

Applications are encouraged from people of color, individuals with disabilities, people of all sexual and gender identities, and anyone whose background, experience or viewpoint will contribute to the diversity of the faculty. 

The law school was founded in 2006, and has quickly been recognized for its successes, rising over 50 places in US News to its current rank of #75. In addition to their research profile, law school faculty are highly visible in the national press. 

Drexel University, a large private R1 research university, is particularly known for its programs in engineering, computing, public health, and medicine, as well as its College of Computing and Informatics which includes the Isaac L. Auerbach Cybersecurity Institute. The University is situated in Philadelphia’s renowned University City, a robust campus community and the academic epicenter of the entire region. 

To apply, please send a cover letter, research and diversity statements, and curriculum vitae (with references) to Faculty Appointments Chair David S. Cohen at dsc39@drexel.edu. 

* * *

Assistant Teaching Professor in Law 

Job Overview: 

Drexel University Kline School of Law, in Philadelphia, seeks applications for one non-tenure track/teaching faculty position for the 2025-2026 academic year. 

Qualifications and requirements: 

  • A JD or its equivalent. 
  • At least two years of legal practice experience. 
  • Candidates with teaching experience are preferred. 

Essential Functions: Faculty are expected to teach a total of 4 courses over two semesters and participate in service to the Law School and the University. Core courses we are particularly looking to cover include Legal Methods I (predictive legal writing and analysis); Legal Methods II (persuasive legal writing and oral advocacy); Evidence; Criminal Procedure/Investigations; international law subjects; Environmental Law; private law subjects; required first year courses; Federal Income Tax; and Enterprise Tax. Occasional teaching in our Undergraduate program in law is also possible. This position is non-tenure track; time spent in the position will not accrue toward tenure. The contract is initially for two years with the goal of reappointment if mutually satisfactory. 

Supplemental Posting Information: 

To apply for this position, please upload a cover letter, curriculum vitae (with references), and a teaching statement (or, if you are receiving this directly, email your materials to Professor David S. Cohen at dsc39@drexel.edu). Individuals selected for interviews will be asked to provide three letters of recommendation. 

Drexel University is an Equal Opportunity/Affirmative Action Employer. The Kline School of Law is especially interested in qualified candidates who can contribute to the diversity and excellence of the academic community. Salaries are commensurate with experience. The University offers an attractive benefits package including a generous retirement packages with matching funds. 

Lotta news lately about companies seeking to leave Delaware, so it’s amusing to see a company fighting to get in. 

Daktronics is incorporated in South Dakota of all places (is it lonely there?).  South Dakota mandates cumulative voting, which makes it much, much easier for a minority blockholder to gain board representation, as Matt Levine explains here.

And such a blockholder has emerged, in the form of Alta Fox.  Alta Fox is both a shareholder and a holder of Daktronics notes, but the notes are convertible into shares, so on a fully diluted basis, Alta Fox owns over 11% of Daktronics’ voting power.  Given that, at least some of Alta Fox’s director nominees would likely have been seated in a proxy contest but – plot twist! – Daktronics called a special meeting of its shareholders to vote on reincorporation to Delaware, where cumulative voting is not the default.

And, as I understand it, Daktronics is calling for that vote before Alta Fox’s shares convert, so that Alta Fox will be heading into the meeting with less than its full voting power. In response, Alta Fox filed a lawsuit (in federal court, presumably because it just likes the judges and/or procedures better), alleging that Daktronics’s proposal represents a breach of fiduciary duty and shareholder oppression.

So, quick point: Shareholder oppression is a remedy unavailable in Delaware, but available in most other states in one form or another, and typically protects shareholders in close corporations from the unreasonable frustration of expectations by a majority shareholder or controlling group.  Usually, the issue is that the majority group is refusing to pay dividends or otherwise cutting the minority shareholder off from the economic benefits of the investment, leaving the minority shareholder trapped with illiquid holdings that are not generating any income.  So, employing the doctrine in the context of a public company would be unusual, but I’m not an expert in South Dakota corporate law (is anyone?) and we’ll have to see how that unfolds.

That said, the more interesting question is how to think about the legal issue of using reincorporation as a defensive tactic.

As Ben Edwards posted, earlier this week, the Delaware Supreme Court decided Maffei v. Palkon, where it held that reincorporation out of Delaware into Nevada – even if forced through by a controlling shareholder – will not be treated as a conflicted transaction subject to entire fairness review.  But there’s an important caveat: the Delaware Supreme Court made clear that if there is an actual transaction under consideration, such that the plaintiffs can show reincorporation would rob them of specific rights, then entire fairness might be the appropriate standard of review.  As the court held:

[T]he hypothetical and contingent impact of Nevada law on unspecified corporate actions that may or may not occur in the future is too speculative to constitute a material, non-ratable benefit triggering entire fairness review…. Given the absence of any allegations that the Conversion decisions were made to avoid any existing or threatened litigation or that they were made in contemplation of any particular transaction, we hold that Plaintiffs have failed to adequately allege facts showing Defendants’ receipt of a material, non-ratable benefit….

We note that Plaintiffs have not alleged that Defendants have taken any articulable, material steps in connection with any post-conversion transactions.  If directors or controllers were to take such steps in furtherance of breaching their fiduciary duties prior to redomesticating, even though such transactions or conduct would not be consummated or take place until after the change of corporate domicile, then our standard of review could be different.  Although we do not reach that issue today, under such a scenario the conduct of those alleged to have engaged in it could still be subject to Delaware law.  But, as we have stated above, the record here suggests the existence of a “clear day” and the absence of any material, non-ratable benefits flowing to the controller or directors as a result of the Conversions.

So, back to Daktronics.  Here, the reincorporation is not intended to effectuate a specific transaction, but it is intended to thwart shareholder voting rights in the context of a particular, threatened proxy contest.  And – I have no idea what South Dakota law is, I doubt anyone knows – but under Delaware law, such actions would usually be evaluated under the heightened scrutiny of Unocal/Coster.  Specifically, as the Delaware Supreme Court put it in Kellner v. AIM:

the court should review whether the board faced a threat “to an important corporate interest or to the achievement of a significant corporate benefit.” The threat must be real and not pretextual, and the board’s motivations must be proper and not selfish or disloyal. As Chancellor Allen stated long ago, the threat cannot be justified on the grounds that the board knows what is in the best interests of the stockholders.

In other words, as Kellner put it, takeover defenses are prohibited when they interfere with voting rights and are adopted by a board “for the primary purpose of precluding a challenge to its control.”

Now, relocating to Delaware does not preclude Alta Fox’s challenge, but it does seem like reincorporation is intended to change the rules of the game to Alta Fox’s detriment mid-stream, so I venture to guess that a Delaware court, confronted with the problem, would in fact employ the heightened test rather than business judgment review.

Anyhoo.  I don’t know how the case comes out, I don’t even know if a South Dakota court will look to Delaware precedent.  But it’s interesting that even after Maffei, we immediately see an example of reincorporation as potentially subject to a heightened standard of review.

And another thing.  New Shareholder Primacy podcast is up!  This week, Mike Levin talks to Lauren Thomas of the Wall Street Journal.  Available here at Spotify, here at Apple, and here at YouTube.

The University of Iowa College of Law

Faculty Hiring Announcement

The University of Iowa College of Law anticipates hiring lateral faculty members in the areas of Family Law and Business Law.

APPLICATION PROCEDURE: To apply, candidates should submit a letter of interest, CV, a list of three references, and a law school transcript through Jobs@UIOWA, https://jobs.uiowa.edu, refer to Requisition #75522. 

Consistent with the mission and responsibilities of a top-tier public research university, we are interested in candidates who are recognized scholars and teachers and who will participate actively in the intellectual life of the College of Law.  In addition, we desire candidates with a demonstrated ability to maintain effective and respectful working relationships with the campus community to uphold a standard of cultural competency and respect for differences. We also desire candidates who would bring significant new scholarly strengths to the College of Law. Candidates who can contribute to these goals are encouraged to apply and to identify their strengths in these areas.

QUALIFICATIONS: 

  • Required Qualifications for Associate Professor:
  • Consistent record of ability as a teacher of law students.
  • Consistent record of scholarly productivity.
  • JD, PhD or other advanced degree related to the area of the candidate’s scholarly work.
  • Experience teaching in the area of family law or business law. 

    Required Qualifications for Professor:

    • Consistent record of high-quality teaching at all appropriate instructional levels.
    • Scholarly achievement of high quality, accompanied by unmistakable evidence that the candidate is a nationally and, where applicable, internationally recognized scholar in the chosen field.
    • Record of significant and effective service to the law school, university, and, if appropriate, to the profession.
    • JD, PhD or other advanced degree related to the area of the candidate’s scholarly work.
    • Experience teaching in the area of family law or business law.

      Desirable Qualifications for Associate Professor and Professor:

      • Demonstrated experience working effectively and collaboratively with individuals from a variety of backgrounds and perspectives, including knowledge of effective strategies that foster and promote a welcoming and respectful work/academic environment. 
      • Will bring significant new scholarly strengths to the College of Law.

        Successful candidates will be required to self-disclose any misconduct history or pending research misconduct investigation including but not limited to sexual misconduct in prior employment and provide a related release and will be subject to a criminal background and credential check.

        For questions, please contact Diane Lourdes Dick, chair of the Faculty Appointments Committee at diane-dick@uiowa.edu. 

        The University of Iowa is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, religion, national origin, age, sex, pregnancy (including childbirth and related conditions), disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, or associational preferences.

        In addition to abiding by the UI Nondiscrimination Statement the College of Law further prohibits discrimination on the basis of ethnicity, gender, gender identity and expression, and military status. The College of Law affirms its commitment to providing equal opportunity without discrimination or segregation on the same bases.

        Persons with disabilities may contact University Human Resources/Faculty and Staff Disability Services, (319) 335-2660 or fsds@uiowa.edu, to inquire or discuss accommodation needs. 

        Prospective employees may review the University Campus Security Policy and the latest annual crime statistics by contacting the Department of Public Safety at 319/335-5022.

        The Delaware Supreme Court has just released its decision in the TripAdvisor case. It’s available here.

        Although I’m going to need more time to sit with and read the opinion carefully, it’s definitely a significant win for corporations considering exiting Delaware in favor of some other jurisdiction. The decision reverses the Chancery court and finds that redomesticating to operate under different state’s law with different standards for liability does not confer a material, non-ratable benefit on defendants. In essence, the mere possibility that the defendants might get away with something in the future that they could not get away with under Delaware law is too remote and speculative a reason to award damages for leaving Delaware or to apply anything other than business judgment rule deference. The Delaware Supreme Court found:

        Taken together, these cases suggest that the hypothetical and contingent impact of Nevada law on unspecified corporate actions that may or may not occur in the future is too speculative to constitute a material, non-ratable benefit triggering entire fairness review. Given that Plaintiffs have not alleged any past conduct that would lead to litigation, this case aligns with our case law that applies the business judgment rule. 

        . . .

        Here, Plaintiffs’ allegations have not satisfied the requirement of pleading a material benefit because they have not alleged anything more than speculation about what potential liabilities Defendants may face in the future. On this record, we cannot conclude that the Conversions would provide Defendants with a material, non-ratable benefit triggering entire fairness review. Accordingly, we hold that the business judgment rule is the applicable standard of review in this case.

        Delaware’s Supreme Court also weighted in on the basis of comity, finding that it provided another reason to stay out of trying to value differences between the two states. The decision finds:

        We note finally that, although comity concerns are not an independent ground for reversal in this case, our holding furthers the goals of comity by our declining to engage in a cost-benefit analysis of the Delaware and Nevada corporate governance regimes. . . . States have taken different approaches on matters such as the scope of director and officer exculpation, standards of review, and the scope of stockholder inspection rights. And litigation rights, as the Vice Chancellor recognized, are only one stick in the corporate governance bundle. Delaware courts are well-aware that “it is more than the statutory words on paper that give life to a system of entity law. Much often depends on the extent to which specific disputes are consistently handled by courts, thus giving business[persons] predictable guidance by which to order their relations.”

        I wrote about the case shortly after the oral argument and noted that it would be very difficult to figure out damages for moving between states because states offer such different overall packages. Then, I wrote:

        Either for the loss of the constituency statutes or for other changes in rights between states, figuring out damages appears to be a really nasty thicket. I don’t know any great way to do it. I don’t think anyone does. How do you value a different set of statutes, different cases, and a different court system? I don’t know. I don’t think the Delaware Supreme Court has a great answer either. It might be better to just treat damages here as too speculative.

        The Delaware Supreme Court concluded with a similar view, stating:

        We submit that attempting to value competing corporate governance structures, particularly in the absence of any concrete allegations of Defendants receiving a material, non-ratable benefit, and based upon hypothetical future transactions, as here, would be an unacceptably speculative cost-benefit exercise. Such an exercise, under these circumstances, also risk intruding on the value judgments of state legislators and directors of corporations.

        Although this decision closes the chapter on how Delaware will treat redomesticating firms, it does also highlight key factors for boards and other states to consider in evaluating jurisdictions and possible reforms. It sets out a broad range of factors that weigh on a decision including: (1) “the court system;” (2) “the predictability of the courts with respect to business matters;” (3) “the judges’ expertise in handling such disputes;” (4) “the development and body of judicial decisions;” (4) “the familiarity of market participants with the corporate governance regime; (5) the process by which corporate statutory amendments are proposed and adopted; (6) “the effectiveness of the Secretary of State office in facilitating corporate filings; and (7) “the existence of a Corporate Bar available, willing, and able to handle such disputes.”

        When many firms look at these factors, they may continue to decide that Delaware offers them the best overall package. For states like Nevada, the list highlights areas the state should evaluate and devote additional resources to if it wants to more meaningfully compete.

        Business Transactional Skills Professor
        University of Richmond School of Law

        The University of Richmond School of Law is seeking applicants for a full-time faculty member to teach business law courses, including transactional skills courses. The position will begin in the summer or fall of 2025. The full position description is here — law.richmond.edu/faculty/hiring/.

        Our new hire will teach one section of Business Associations (our foundational business law course), Mergers & Acquisitions, and two transactional skills courses. The skills courses will emphasize experiential learning, allowing students to work on assignments that resemble the type of work they will do in practice and to develop skills as legal and business advisors to their clients. Candidates must have several years of practice experience in business transactional law and a J.D. from a U.S. accredited law school.

        This is a non-tenure track position that focuses on teaching and mentoring students during the nine-month academic year. Depending on experience, a successful candidate will be hired as an Assistant or Associate Professor of Law, Legal Practice and will be eligible for promotion and five-year presumptively renewable contracts upon promotion to Professor of Law, Legal Practice.

        The University of Richmond is a private university located just a short drive from downtown Richmond, Virginia. Through its five schools and a wide array of campus programming, the University combines the best qualities of a small liberal arts college and a large university. The University of Richmond is committed to developing a diverse workforce and student body, and to modeling an inclusive campus community that values the expression of difference in ways that promote excellence in teaching, learning, personal development, and institutional success. Our academic community strongly encourages applications that are in keeping with this commitment. For more information on the School of Law, please visit https://law.richmond.edu/.

        Applicants should send a cover letter and resume to Professor Jessica Erickson at lawskillsapps@richmond.edu. We encourage applicants to include information in their cover letter about their own transactional practice experience, their experience with teaching and mentoring, their views on the skills and competencies that lawyers in transactional practices need, and their anticipated approach to course design, inclusive pedagogy, assessment, and feedback. The committee will begin considering applications in mid-to-late February and will start conducting Zoom screening interviews shortly thereafter.

        I wasn’t sure whether to post this paper yet, but in light of *hand waves* everything, here’s my take on current corporate governance disputes, DExit, Tornetta, Moelis, ESG – the whole shebang.

        The Legitimation of Shareholder Primacy

        We are living in a particularly polarized era, and corporate governance is no exception.  With controversies raging over “environmental, social, governance” (ESG) investing, diversity, equity, and inclusion initiatives, climate change as an investment concern, and even Elon Musk’s pay package at Tesla, it seems as though corporate governance has never been so starkly divided along partisan lines.

        The divisions have threatened to spill over to Delaware, the preferred jurisdiction for incorporation in the United States.  Several high profile cases – including those involving Elon Musk – have called Delaware’s neutrality into question.   Commenters have argued that Delaware’s newly-politicized approach threatens to splinter the corporate governance universe, driving corporations to other states that are more reliable (or that follow different corporations’ preferred politics).

        This Article argues that, in some ways, the critics are correct: Delaware law is on a path toward politicization.  But it is not because of any particular bias of its judges or its law; to the contrary, the pressures toward politicization are inherent in any system that purports to guide how vast aggregations of capital will be deployed.  What is unique about the current moment is that the trends toward politicization result from tensions inherent in shareholder primacy. Shareholder primacy was conceived, in large part, as a compromise to keep politics out of business management; what the modern controversies reveal is the futility of that effort.  

        Back in 2019, I posted about a panel at Tulane’s Corporate Law Institute discussing Rule 14a-6(g).  That rule allows shareholders who are not seeking proxy authority to communicate with 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.

        In 2019, the new thing was for shareholders who own less than $5 million to file materials anyway, because they’d figured out that EDGAR was actually a cheap and efficient mechanism to allow them to communicate with other shareholders.  So, for example, proponents of 14-8 proposals, or vote-no campaigns, had begun filing statements with the SEC under 14a-6.

        At that CLI, SEC counsel Ted Yu explained new Commission guidance that such voluntary filings were permissible, so long as there was disclosure that the filing was voluntary.

        After that, Dipesh Bhattarai, Brian Blank, Tingting Liu, Kathryn Schumann-Foster, and Tracie Woidtke conducted a study of these 14a-6(g) filings.  I posted about their paper in 2022:

        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 they appear to have an effect on voting outcomes and forced CEO turnover.

        So this is fascinating.  The rule, adopted in 1992, at least as I always understood it, was intended to ensure that all shareholders receive the same information, and to allow that information to be publicly vetted, so that large shareholders can’t lobby others in secret (and away from management prying eyes).  But with modern computerized filings, the rule has been, functionally, hacked, to serve as a low-cost mechanism by which shareholders can communicate with other shareholders – and shareholders find it useful.  That’s a good thing…

        Apparently, too much of one, because proxy exempt solicitations have proliferated, sometimes filed not by the shareholder-proponent of a proposal, but instead by organizations that support or oppose it.

        So, in one of the first acts of the SEC under the new administration, the SEC has issued new guidance that will, as far as I can tell, severely curtail or eliminate the use of exempt solicitations.  According to the new guidance,

        Question: Can a person submit written soliciting material under the cover of a Notice of Exempt Solicitation on EDGAR if the written soliciting material has not been sent or given to security holders?

        Answer: No. The submission of a Notice of Exempt Solicitation on EDGAR is not intended to be the means through which a person disseminates written soliciting material to security holders. Rather, its purpose is to notify the public of the written soliciting material that the person has sent or given to security holders through other means.

        Meaning, as far as I can tell, EDGAR can no long be used for low-cost distribution; shareholders have to go to the expense of actually distributing the material separately before it can be filed with EDGAR for a 14a-6(g) distribution (though it is not clear how many others must be separately solicited).  There are some other tweaks (discussed in various firm client memos, including this one from Gibson Dunn (h/t thecorporatecounsel)), but that seems to be the bombshell.

        I can believe that the process has become too crowded – especially to the extent it’s been used by nonshareholders and to offer statements that do not constitute “solicitations” – but it seems we’ve just lost a valuable method by which dispersed shareholders can communicate with each other.

        And another thing.  New Shareholder Primacy podcast is up!  This week, Mike Levin talks to Adriana Robertson of U Chicago and Slava Fos of Boston College about ways companies control and sometimes manipulate annual shareholder meetings.  Available here at Spotify, here at Apple, and here at YouTube.

        This year’s symposium, titled Navigating the Relationship Between the Administrative State and Emerging Technology, will focus on the evolving regulatory frameworks around emerging technologies like digital assets and artificial intelligence (AI). These technologies are rapidly transforming the way individuals and businesses engage in commerce, interact socially, and innovate. These advancements, however, raise profound questions about the applicability of existing regulatory structures. The symposium will bring together leading experts to discuss how the administrative state can balance the protection of innovation with the mitigation of risks associated with these technologies, while ensuring that laws evolve to meet the challenges of the future.

        We are thrilled to welcome Michele Korver, Head of Regulatory & Operating Partner at a16z crypto, to deliver the opening keynote. Michele’s wealth of experience in both the public and private sectors will provide invaluable insights into the state of digital asset regulation. The event will conclude with a thought-provoking closing address, offering reflections on the key discussions of the day.

        Welcome and Opening Remarks (1:15 PM – 1:25 PM)

        The symposium will begin with brief welcoming remarks, setting the stage for an afternoon of in-depth discussions and exploring the complexities surrounding the intersection of technology, law, and regulation.

        Opening Keynote Address (1:25 PM – 1:55 PM)

        SPEAKER

        Michele Korver, Head of Regulatory and Operating Partner, a16z

        Michele Korver is the Head of Regulatory in the Crypto fund where she helps our web3 portfolio companies to navigate the regulatory landscape and works to educate and liaise with government agencies and policymakers.

        She joined a16z crypto after more than 25 years in government and law enforcement. Michele started her career as a Special Agent in the U.S. Secret Service, where she investigated financial crimes, before serving as a federal prosecutor for over a decade in the Miami, Florida, and Denver, Colorado, United States Attorney’s Offices. Specializing in money laundering and transnational organized crime, Michele advanced to become one of the foremost federal prosecutors in crypto. In 2017, she debuted the role of Digital Currency Counsel, the U.S. Department of Justice’s first dedicated subject matter expert in cryptocurrency-related prosecutions and forfeitures, creating and managing the Criminal Division’s Digital Currency Initiative. Following her time at the DOJ, she served as Chief Digital Currency Advisor at the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN), advising the Director on digital asset-related matters across the bureau’s divisions, while advancing FinCEN’s leadership role within the space.

        Michele participated in the Treasury-led U.S. delegation to the Financial Action Task Force, consulting on standards and recommendations involving virtual asset activities and service providers and was a contributing author to the Department of Justice’s 2020 Cryptocurrency Enforcement Framework. She also co-authored the articles “Attribution in Cryptocurrency Cases” (Feb. 2019) and “Surfing the First Wave of Cryptocurrency Money Laundering” (May 2021), both published in the DOJ Journal of Federal Law and Practice.

        Michele received her B.A. from the University of Florida, her J.D. magna cum laude from the University of Miami School of Law, and clerked for U.S. District Court Judge William P. Dimitrouleas in the Southern District of Florida

        Panel I: SEC Regulation by Enforcement: Scope of Jurisdiction and Impact on Market Participants (1:55 PM – 2:40 PM)

        MODERATOR

        Christoph Henkel, Professor of Law, Drake University: Professor Christoph Henkel brings a wealth of international experience to the panel. Before joining Drake, having served as a professor at the Chicago-Kent College of Law, the University of Illinois Chicago School of Law, and the Mississippi College of Law, he brings a broad perspective on regulatory issues in digital assets and emerging technologies. Before entering academia, Professor Henkel worked as an arbitrator at the Directorate of General Trade at the European Commission and practiced law at Sidley Austin’s Chicago office. His education includes a J.D. from Justus-Liebig University Law School in Giessen, Germany, an S.J.D., and an LLM from the University of Wisconsin Law School. He will lead a critical discussion on the SEC’s enforcement actions and their implications for digital asset firms, particularly around the application of the Howey Test and the SEC’s enforcement approach in the absence of clear legislation.

        PANELISTS

        Amanda Tuminelli, Chief Legal Officer, DeFi Education Fund: Amanda Tuminelli serves as the Chief Legal Officer of the DeFi Education Fund, a nonpartisan nonprofit policy organization that advocates for sound policy for decentralized finance, where she leads the organization’s impact litigation and policy efforts. Prior to joining DEF, Amanda was a lawyer at Kobre & Kim, where she defended clients against criminal and regulatory investigations, government enforcement actions, and large scale litigation, particularly in the crypto and blockchain space. She previously served as a law clerk for the Honorable Ann M. Donnelly of the U.S. District Court for the Eastern District of New York and practiced at Dechert LLP in their white-collar and securities litigation group.

        Marisa Coppel, Head of Legal, Blockchain Association: Marisa Coppel is the Head of Legal at the Blockchain Association, a trade organization advocating for the digital asset industry. Before joining the Blockchain Association, Marisa worked as an associate at Covington & Burling LLP and O’Melveny & Myers LLP, specializing in securities law and litigation. She also served as a judicial law clerk for the U.S. District Court for the Central District of California. Marisa holds a J.D. from Loyola Law School, Los Angeles. Her legal expertise will bring an important perspective on how the SEC’s enforcement actions are affecting blockchain companies and the legal uncertainty facing firms in the digital asset space.

        Daniel Stabile, Partner and Co-Chair, Digital Assets & Blockchain Technology Group, Winston & Strawn LLP: Daniel Stabile is a Partner and Co-Chair of the Digital Assets & Blockchain Technology Group at Winston & Strawn LLP. Daniel is also an adjunct professor at the University of Miami School of Law, where he teaches a course on digital assets and blockchain technology. He is one of the co-authors of the first law school textbook dedicated to the regulation of digital assets and blockchain. Prior to joining Winston & Strawn, Daniel worked at Shutts & Bowen and Dewey & LeBoeuf LLP. He holds a J.D. from The George Washington University Law School. Daniel’s deep knowledge of blockchain technology and legal regulation will offer critical insights into the challenges that the SEC’s enforcement actions pose for digital asset firms. 

        Intermediate Speaker (3:00 – 3:15 PM)

        SPEAKER

        Jake Chervinsky, Chief Legal Officer, Variant

        Jake Chervinsky is the Chief Legal Officer at Variant, a crypto-focused venture fund investing in decentralized technologies. He is also a board member of the DeFi Education Fund. Previously, Jake served as Chief Policy Officer at the Blockchain Association and as General Counsel at Compound Labs, one of the leading decentralized finance protocols. Jake earned his J.D. from The George Washington University Law School. As an expert in decentralized finance (DeFi), Jake will provide an essential overview of DeFi’s role in the broader financial ecosystem, its legal challenges, and the regulatory landscape that must evolve to address these challenges. His presentation will highlight how DeFi challenges traditional financial systems and discuss the legal issues facing DeFi projects.

        Panel II: Potential Solutions to the Incongruence Between Decentralized Finance and Legacy Financial Regulation (3:15 PM – 4:00 PM)

        MODERATOR

        Miller Whitehouse-Levine, CEO, DeFi Education Fund: Miller Whitehouse-Levine is the CEO of the DeFi Education Fund, a non-profit organization that advocates for the legal and regulatory issues surrounding decentralized finance. Before founding DeFi Education Fund, Miller was the Director of Policy at the Blockchain Association, where he developed policies and strategies to support the growth of decentralized finance and blockchain technology. Miller holds a bachelor’s degree from Georgetown University’s Walsh School of Foreign Service. He will moderate the panel on finding solutions to regulatory gaps between decentralized finance and traditional financial systems, bringing valuable insights from his experience in DeFi policy advocacy.

        PANELISTS

        Rodrigo Seira, Special Counsel, Cooley LLP: Rodrigo Seira is a Special Counsel at Cooley LLP, where he advises clients in the blockchain and digital asset space on regulatory compliance and legal strategy. Prior to joining Cooley, Rodrigo worked with the crypto-focused investment firm Paradigm and at DLx Law and Cleary Gottlieb Steen & Hamilton. Rodrigo earned his J.D. from Harvard Law School. His deep knowledge of cryptocurrency and blockchain regulation will bring valuable perspective on how decentralized finance (DeFi) fits within the broader regulatory framework and the solutions that are emerging at both the federal and state levels.

        Drew Hinkes, Partner, Winston & Strawn LLP: Drew Hinkes is a partner at Winston & Strawn LLP and an adjunct professor at both NYU Stern School of Business and the University of Miami School of Law. He is a co-chair of the Uniform Commercial Code’s Emerging Technologies Subcommittee and has written extensively about blockchain regulation. Drew earned his J.D. from the University of Miami School of Law. He is widely recognized as an expert in the intersection of law, technology, and blockchain, and he will provide critical insights on how DeFi’s unique characteristics challenge traditional financial regulations.

        Kimberly Prior, Partner, Winston & Strawn LLP: Kimberly Prior is a partner at Winston & Strawn LLP and co-chair of the Digital Assets & Blockchain Technology Group. She also serves as an adjunct professor at the University of Miami School of Law, teaching courses on blockchain and digital asset regulation. Prior to her role at Winston & Strawn, Kimberly worked at Shutts & Bowen and Baker McKenzie. Kimberly holds a J.D. from Stetson University College of Law. Her expertise in financial services and digital assets will be instrumental in discussing the regulatory solutions for DeFi and how traditional financial regulations can adapt to the challenges presented by decentralized finance.

        Panel III: The Global Reach of U.S. Anti-Money Laundering & Sanctions Laws (4:10 PM – 4:55 PM)

        MODERATOR

        Lee Sullenger, Director, Financial Crimes Compliance (Digital Assets), BNY: Lee Sullenger is the Director of Financial Crimes Compliance for Digital Assets at BNY Mellon. Lee is also the founder of CryptoCytes, the only crypto-native platform where individuals can become credentialed as Cryptocurrency Crimes Investigators. Before joining BNY, Lee held positions at PNC, Citi Bank, and Raytheon, and served 22 years in the U.S. Army, retiring as a Lieutenant Colonel. Lee’s extensive experience in financial crimes compliance will drive the panel’s discussion on the global challenges of anti-money laundering (AML) laws as they apply to digital assets and how U.S. sanctions laws have been adapted to address illicit activities in the cross-border digital asset space.

        PANELISTS

        Michele Korver, Head of Regulatory and Operating Partner, a16z: Michele Korver’s previous experience as Chief Digital Currency Advisor at FinCEN and as Digital Currency Counsel at the DOJ makes her an expert on the global reach of U.S. financial regulations. She will provide valuable insights into how the U.S. government is adapting AML and sanctions laws to deal with emerging digital assets and their cross-border implications. Michele earned her J.D. from the University of Miami School of Law where she served as the Managing Editor of the University of Miami Law Review.

        Ari Redbord, Global Head of Policy and Government Affairs, TRM Labs: Ari Redbord leads global policy and government affairs at TRM Labs, a firm that specializes in blockchain analytics for financial institutions and government agencies. Previously, Ari served as Senior Advisor to the Under Secretary for Terrorism and Financial Intelligence at the U.S. Treasury and as an Assistant United States Attorney. Ari earned his J.D. from Georgetown University Law Center. His vast experience in policy and regulatory affairs will offer critical insights into the role of AML and sanctions laws in the digital asset space.

        Carla Reyes, Associate Professor of Law, SMU Dedman School of Law: Carla Reyes is an Associate Professor of Law at Southern Methodist University’s Dedman School of Law. She serves as Associate Research Director on the Permanent Editorial Board for the Uniform Commercial Code and as Director of Research on the Technology Committee of the UCC. Carla’s research focuses on the intersection of law and technology, and she has significant experience in blockchain and digital assets. Her expertise will shed light on how anti-money laundering and sanctions regulations must evolve to address the challenges posed by digital currencies. Professor Reyes earned her J.D. from Duke University.

        Panel IV: Artificial Intelligence and Anticompetitive Behavior (5:05 PM – 5:50 PM)

        This panel will address the philosophical and practical implications of artificial intelligence (AI) on competition, focusing on whether the widespread use of AI could lead to monopolistic behavior or market concentration. Panelists will discuss the challenges AI presents in terms of market entry, with large firms controlling the vast resources needed to train AI models. Additionally, the panel will explore the role of government in regulating AI to prevent anticompetitive behavior while fostering innovation. The discussion will consider the evolving relationship between AI technology and market competition, exploring the balance between innovation and ensuring fair competition in a rapidly changing technological landscape.

        MODERATOR

        Marcia Narine Weldon, Professor of Law, University of Miami School of Law: Professor Marcia Narine Weldon is a faculty member at the University of Miami School of Law, where she serves as the Director of the Transactional Skills Program. In addition to her academic work, she is General Counsel for Avatar Buddy and The Women’s Fund Miami-Dade. Professor Weldon has extensive experience in both legal academia and corporate law, having previously worked as the Vice President, Deputy General Counsel, and Vice President of Global Compliance & Business Standards at Ryder. She has also practiced law with Morgan Lewis and Cleary Gottlieb, and served as a judicial law clerk for Justice Marie Garibaldi of the New Jersey Supreme Court. Professor Weldon earned her J.D. from Harvard Law School. Professor Weldon’s unique combination of academic, legal practice, and compliance experience gives her a valuable perspective on the intersection of law, technology, and competition.

        PANELISTS

        John Newman, Professor of Law, University of Miami School of Law: John Newman is a Professor of Law at the University of Miami School of Law, where his research focuses on antitrust law, particularly in the context of technology and innovation. Prior to joining academia, Professor Newman served as a Deputy Director in the Federal Trade Commission’s Bureau of Competition and as a trial attorney in the DOJ’s antitrust division. His expertise in antitrust enforcement will be crucial to the discussion on how AI could influence market dynamics and the potential regulatory frameworks to address anticompetitive behaviors. Professor Newman earned his J.D. from the University of Iowa College of Law.

        Samir Patel, Associate, Holland & Knight: Samir Patel is an associate at Holland & Knight, where he specializes in gaming, digital assets, and artificial intelligence. In addition to his practice, Samir serves as an adjunct professor at Michigan State University College of Law and has previously worked with the ABA Young Lawyers Division’s Innovation Committee. Samir has been actively involved in the Miami-Dade County Cryptocurrency Task Force, which seeks to create a regulatory framework for digital assets in the region. Samir’s expertise in both digital assets and AI, combined with his practical experience in the regulatory space, will provide valuable insights into how AI technologies could affect market competition and the role of government in regulating these technologies. Samir earned his J.D. from the Michigan State University College of Law.

        Closing Remarks (5:50 PM – 6:00 PM)

        David Lourie has a new paper out considering what standard the SEC should use when deciding whether to impose personal liability on Chief Compliance Officers (CCOs) for compliance failures at their firms.

        The SEC now requires financial services firms to have CCOs. Exactly when they do or should face personal liability appears unclear. One SEC Staff member told CCOs that they would face personal liability in three circumstances: (1) when the CCO is affirmatively involved in misconduct; (2)
        when the CCO engages in efforts to obstruct or mislead the SEC; or (3) when
        the CCO exhibits “a wholesale failure to carry out his or her responsibilities.” What does “wholesale failure” mean here? It’s not totally clear. In the past, the SEC has sought to impose personal liability on CCOs for compliance failures and proceeded under a negligence standard–exposing a CCO to liability if they negligently performed their duties.

        Figuring out when you should and shouldn’t hold CCOs personally liable is challenging. I’ll confess that my initial instinct is to lean toward personal liability so that someone at these financial services firms will take compliance seriously. Lourie makes a compelling case that putting too much liability on CCOs may turn them into self-protective box checkers and deter people from taking the role. It could also drive up the costs associated with having a CCO. How much insurance will you need to buy to manage the risk that someone at Wells Fargo will do something illegal? I don’t know, but it’s probably a large number.

        Lourie argues for a clear shift to a recklessness standard for personal liability for CCOs. He also details a number of enforcement actions where the CCO’s conduct rose to that level. Reserving personal liability for these more egregious violations may be a better fit. Of course, narrowing CCO personal liability doesn’t mean that the SEC cannot still drop the hammer on misbehaving firms. Some subset of the CCOs getting dragged in personally now may be the ones had the bad luck to accept a job with a firm full of scofflaws.

        At the annual meeting of the Association of American Law Schools earlier this month, the Section on Agency, Partnerships, LLCs, and Unincorporated Associations (for which I was the outgoing Chair) focused its principal panel on the intersection of the section’s mandate with technology. As might be expected, blockchains and generative artificial intelligence (AI) were a core focus. It was exciting to hear about some of the work being done in this space.

        I was reminded as I was listening to the speakers about an article that I knew was forthcoming. I checked in with the author this past week and it has, in fact, now been published. The article is Zhaoyi Li‘s Artificial Fiduciaries, available here through the Washington and Lee Law Review and here on SSRN. Here’s the SSRN abstract.

        The rapid development of technology in the last decade has affected all levels of society. Corporate governance has not been immune to these changes. In the future, Artificial Intelligence (“AI”) fiduciaries may be technologically capable of serving as independent corporate directors. This could be an effective way to address the challenge of the absence of truly independent directors in the traditional governance framework. Artificial fiduciaries could also offer a way to mitigate agency costs and improve overall corporate governance. However, traditional corporate law lacks solutions for coping with the integration of AI into corporate governance.

        Currently, there is little scholarship discussing the intersection of AI and corporate governance. Because the impact of technology on corporate governance is inevitable, jurisdictions with a robust corporate focus (such as Delaware) will likely have to amend their corporate laws. This Article introduces the theory of artificial fiduciaries and offers a novel interpretation of traditional fiduciary duties. It aims to harmonize the long‑established duties of loyalty and care with the fast‑paced technological advancements of the modern era. The discussion extends beyond the question of whether AI is more than a mere tool and scrutinizes the anticipated critiques of AI’s alleged faults—including issues of bias, the “black box” problem, and concerns related to the “superdirector.” It also explores the “human in the loop” option in the context of artificial fiduciaries. This comprehensive analysis not only highlights AI’s pivotal role in driving the evolution of traditional corporate governance toward an innovative technological framework but also delineates clear trajectories and presents a strategic blueprint for technological governance’s forthcoming evolution.

        Those of us who teach and write about corporate governance will face questions about the use of AI in corporate governance in our work. Professor Li’s article is one that may help us to answer some of those questions–or at least enable us to probe them more deeply. Among other things, I am sure that I will be referring students to it, since this is a hot topic of discussion for them as well as for those of us working in the law teaching trenches.