I was going to move on to other topics after two recent posts about Nike’s Kaepernick Ad, but I decided I had a little more to say on the topic.  My prior posts, Nike’s Kaepernick Ad Is the Most Business Judgmenty Thing Ever and Delegation of Board Authority: Nike’s Kaepernick Ad Remains the Most Business Judgmenty Thing Ever explain my view that Nike’s decision to run a controversial ad is the essence of the exercise of business judgment.  Some people seem to believe that by merely making a controversial decision, the board should subject to review and required to justify its actions.  I don’t agree. I need more.   

First, I came across a case (an unreported Delaware case) that had language that was simply too good for me to pass up in this context:

The plaintiffs have pleaded no facts to undermine the presumption that the outside directors of the board . . . failed to fully inform itself in deciding how best to proceed . . . . Instead, the complaint essentially states that the plaintiffs would have run things differently. The business judgment rule, however, is not rebutted by Monday morning quarterbacking. In the absence of well pleaded allegations of director interest or self-dealing, failure to inform themselves, or lack of good faith, the business decisions of the board are not subject to challenge because in hindsight other choices might have been made instead.

In re Affliated Computer Servs., Inc. Shareholders Litig., No. CIV.A. 2821-VCL, 2009 WL 296078, at *10 (Del. Ch. Feb. 6, 2009) (unreported). 
 
Absolutely, positively, spot on.  (I’ll note, again, that Nike’s stock is up, not down since the ad. That shouldn’t matter as to the inquiry, but it further supports why we have the business judgment rule in the first place.) 
 
Next, the good Professor Bainbridge posted yesterday, I hate to break it to Josh Fershee but “Judgmenty” is not a word. He is, of course, correct. But, I couldn’t leave it there. I decided to double down on my use of the admittedly ridiculous “judgmenty.”  My claim:
Ever the good sport, the good professor replied: 

So it appears. 

This past Friday, Burr & Forman LLP and the Clayton Center for Entrepreneurial Law at the University of Tennessee College of Law (including its business law journal, Transactions: The Tennessee Journal of Business Law), cosponsored a conference entittled “Law and Business Tech: Cybersecurity, Blockchain and Electronic Transactions.”  This was, as you may recognize, the second business law conference UT Law sponsored in a week’s time (the first being the Business Law Prof Blog symposium, “Connecting the Threads II,” the week before).  It has been a busy time for business law faculty and students at UT Law!

(Parenthetically, I will note here that one of the attendees at Friday’s event, who also had been at the Business Law Prof blog symposium, came back to this past week’s conference because he was so jazzed up about Marcia’s presentation at the first event–which she mentions here and here.  Thanks, Marcia, for encouraging this interest in blockchain technology in our legal community!)

At Friday’s conference, I moderated and participated in a panel on “The Coming Second Wave of Digital and other Electronic Signatures in Commerce.”  The panelists included Ed Snow of Burr & Forman and Katy Blackwell from SIGNiX.  The panel walked through a history and course of conduct from handwritten signatures to electronic signatures to digital signatures, discussing the transitions from one to another (which are, as yet, incomplete).  Interesting questions emerged as among us as to, e.g., why banking/credit transactions and mergers/acquisitions tend to lag behind in the adoption of new signature technologies.  (Your thoughts are welcomed.)

At the end of the prepared program, my co-panelists asked me to speak about Tennessee’s adoption of a digital signature statute back in the spring.  This was another of the legislative review projects that I have undertaken as a member of the Tennessee Bar Association Business Section Executive Council.  We were given 24-48 hours to comment on a digital signature bill that had been introduced in the Tennessee General Assembly based on an Arizona statute adopted in 2017 (information available here).  Although I personally thought the bill/statutory revision was likely unnecessary and would have preferred to spend more time studying it before commenting on it, two of us on the Executive Council pooled comments on the draft bill, which also received comments from other quarters.  

The ostensible legislative policy was to ensure the enforceability of legally valid and binding transactions occurring in a distributed ledger environment.  Tennessee proponents of the bill wanted to support business in this environment, as I noted in commentary quoted in this article.  With that in mind, two issues were, in the short time we had, important.

Continue Reading Electronic and Digital Signatures – A New Area for Statutory Activity

From a naming brainstorm at a talk
Patrick Perkins, Unsplash

This is the format of an ideal blog post. The most important part of writing an ideal blog post is to, you know, actually write it. Your thoughts are brilliant, I’m sure, but when you keep them within your head you miss out on the discussions that your ideas could generate, that could subsequently help shape your own thoughts further.

Continue Reading The ideal blog post

Back when the CBS Board first decided to revolt against its controlling shareholder, Shari Redstone, I posted a collection of immediate thoughts.  My final one was:

[T]here’s a subtext in all of this, and it’s that Shari Redstone in particular is an untutored interloper, interfering in a business that she knows little about having finally managed to wrest control from her ailing – and often-estranged – father….It’s hard not to wonder about something of a gendered undercurrent in this kind of commentary, and that, in turn, taints CBS’s general depiction of Shari Redstone as a gossipy – and they don’t use that word but that is the implication when they allege that Redstone basically is saying mean things about people – busybody in corporate affairs.

In light of what transpired and came to light since then, I’m going to emphasize that point again.  Because there’s even more evidence today that the Board’s hostility to Redstone – and its support of Moonves – was tainted by (what I assume was unconscious) bias.  And now, after an expensive and pointless legal battle, terrible publicity, and a general waste of corporate resources, we have a cautionary tale about how sexism distorts and inhibits business judgment.

[More under the jump]

Continue Reading Let’s talk more about CBS