Because I am having significant Internet access issues through the Wi-Fi in Terminal A at the Detroit Metropolitan Airport (where I am waiting to board a flight to France to present a crowdfunding paper later in the week), I am writing a short “preview” post this week. I am typing this on my cell phone. Please forgive typos, etc.

I have promised a number of folks that I would write a post about the food delivery services I have been using for a bit more than a year now–Blue Apron, Plated, and Hello Fresh. My idea is to write about the business model, comparative attributes, legal aspects, and anything else that might make sense. So, I post today to ask you what you want to know. You can suggest a business, legal, or personal topic. Have at it! And if you’d rather PM me, just send an email. I will keep a folder and use your ideas to plan my post.  Or maybe I will end up with enough for more than one post. Who knows?

Anyway, thanks in advance for your ideas. And I apologize for the short post. But this proves to be a good juncture to ask for your input . . . .

To draft end of semester exams.  So while I frantically try to develop fact-patterns that are simple and coherent and yet simultaneously engage a semester’s worth of material, I offer three links that interested me recently.

First, Vice Chancellor Laster’s ruling in Wilkinson v. Schulman (pdf).  In this opinion, VC Laster denied a books and records request on the grounds that the purposes of inspection belonged to Wilkinson’s counsel, and not Wilkinson himself.  Wilkinson had complaints about the company, but the purposes of inspection raised in the demand letter were different, and developed by the attorneys without Wilkinson’s involvement.  As Laster concluded, “Wilkinson simply lent his name to a lawyer-driven effort by entrepreneurial plaintiffs’ counsel.”  This strikes me as the kind of ruling that could have broader implications – we’ll see if future cases pick up these threads.

Second, Bloomberg recently reported on an organization called “Protect Our Pensions,” which purports to be a grassroots effort to fight against fossil fuel divestment, but is in fact industry-backed astroturf.   The reason I find this fascinating is that the standard argument against divestment is that it conveys no new information to the market and therefore will not affect prices.  But the fact that the industry bothered to organize this effort at all tells us that the industry, at least, believes these efforts are having some kind of adverse effect.

Third, Buzzfeed posted an exposé of sexual assaults at Massage Envy franchises across the country.  (Warning for graphic descriptions).  Aside from all of the other issues raised, what struck me was how the franchise model – which allows Massage Envy to use its branding but disclaim responsibility –  appears to have played a role in the cover-ups and lack of response to complaints.  I’m not sure I’d want to use scenarios this fraught in business class, but it would certainly make a change from the standard McDonald’s cases featured in most textbooks to illustrate vicarious and apparent agency theories of liability.

I have written about Etsy in at least three past posts: (1) Etsy becoming a certified B Corp, (2) Etsy going public, and (3) Delaware amending it’s public benefit corporation laws (likely, in part, to help Etsy convert to a PBC, which Etsy would need to do to maintain its certification because it incorporated in a non-constituency statute state that does have a benefit corporation statute (Delaware)).

In May, some questioned whether Etsy would keep its social focus after a “management shakeup.” In September, B Lab granted Etsy an extension on converting to a PBC. That article claims that B Lab would reset the deadline for conversion to 2019, if Etsy re-certified as a B Corp by the end of 2017 and would commit to converting to a PBC.

The 2019 date was 4 years from the 2015 Delaware PBC amendments (instead of 4 years from Etsy’s first certification). One of B Lab’s co-founder reportedly said that the statutory amendments were needed because the original 2013 version of the Delaware PBC law was “perfectly fine for private companies and unworkable for public companies.”

Just a few days ago, however, Etsy announced that it would abandon its B Corp certification and not reincorporate as a Delaware PBC. Josh Silverman (CEO since the May shakeup) is quoted in that New York Times article as saying “Etsy’s greatest potential for impact is helping sellers — many of whom are women running small businesses — increase their sales.” He sounds a lot like Milton Friedman’s article The Social Responsibility of Business is to Increase its Profits. Mr. Silverman also said that Etsy “had the best of intentions, but wasn’t great at tying that [sales] to impact….Being good doesn’t cut the mustard.”

Other than the New York Times article, the press around Etsy’s announcement to let its B corp certification lapse seems to be relatively light. In the short-term at least, this move probably hurts B Lab and the social enterprise community more than it hurts Etsy given how few big companies are certified. In the long-term, however, Etsy may experience significant negative consequences, as it seems that this move to drop its certification is being done in conjunction with Etsy shedding a lot of the culture that made it a beloved company.  

Update: Perhaps Etsy is bracing for competition from Amazon. (Or maybe, and this is complete speculation on my part, Etsy is trying to make itself a more attractive acquisition target for Amazon, if Amazon realizes it cannot replicate Etsy on its own. Now, it is debatable whether Etsy is more valuable with or without its B Corp certification). 

I’m proud to be part of this project and to have written a chapter on corporate social responsibility in Latin America that stemmed from my time in Guatemala two years ago. 

 

2018 SNX (South-North Exchange Conference)

Antigua, Guatemala

May 18-19, 2018

 

From Extraction to Emancipation: Development Reimagined 

 

Call for Papers

 

Sponsored by:

Latina & Latino Critical Legal Theory, Inc. (LatCrit), the UC Davis Journal of International Law and Policy, and _________ [other sponsorships are under consideration, and please suggest your own school or program]

 

In July 2015, a delegation of law professors and lawyers from the United States and Canada traveled to Guatemala to study sustainable development. That study inspired the group to produce an edited volume, to be published in early 2018 by the ABA Section of International Law, that considers Guatemala as a case study to examine broad global themes arising from development practices in emerging economies around the world. The 2018 SNX conference provides an opportunity to continue the discussions and further engage and involve the local victims of unfettered globalization. 

 

This project offers important lessons to policy makers, corporate investors, and affected individuals and communities on strategies to improve distributional justice and respect for the rule of law, including human rights and environmental norms and aspirations. It also connects to such global themes as climate change, labor regimes in the context of trade, and forced migration, all of which have transborder implications and across-border commonalities. 

 

The 2018 SNX conference posits extraction as a metaphor for looking at exploitation from a wider lens. Although the conference is grounded in the Guatemalan experience, we invite speakers from a broader global context whose work is informed by similar experiences. We seek  papers that look at exploitation and resistence from a variety of perspectives and experiences. Particularly, we invite papers across disciplinary boundaries and from all constituencies on the following topics, as well as other topics you might suggest of relevance to the Global South:

 

• Trade/Economies
• Migration—Economic and Refugee
• Human Rights
• Natural Resources and the Environment
• Labor/Precarity
• Globalization
• Women’s Rights
• Violence and Gender Violence
• Children’s Rights
• Poverty/Class
• Corruption/Constitutional Crisis
• Corporate Social Responsibility
• Indigenous Peoples

 

The conference’s proceedings will be held in Spanish and English (with simultaneous translation). 

 

To be considered for participation, please send a brief abstract (not exceeding 500- 600 words) of your presentation and your contact info by December 15, 2017 to: benders@seattleu.edu and to:realdana@ucdavis.edu. Decisions will be announced in December 2017. The UC Davis Journal of International Law and Policy will publish a symposium volume to include selected papers from the conference. Please indicate in your abstract if you are interested in this publication opportunity. 

 

Conference Information: The 2018 SNX will be held at the Posada de Belen facility in Antigua, Guatemala. The organizing committee is currently negotiating a conference rate with a hotel(s) close to our conference venue.

 

Conference Registration fees, to include some meals and in-country transportation, are subject to change, but estimated for now as:

• Participants from the Global North $225
• Student Participants from the Global North $100
• Participants from the Global South $75
• Student Participants from the Global South $25

 

If you have any questions, please contact the program coordinators: Raquel Aldana (UC Davis), Steven Bender(Seattle University), Anibal Rosario Lebron (Howard) anibal.rosario.lebron@gmail.com, Willmai Rivera–Perez (Southern) wrivera-perez@sulc.edu, Yanira Reyes (InterAmerican) reyesyanira@gmail.com, or Sheila Vélez Martínez (Pitt) siv7@pitt.edu.

 

A recent Pennsylvania opinion makes all sorts of mistakes with regard to a single-member limited liability company (LLC), but in dissent, at least some of the key issues are correctly framed. In an unreported opinion, the court considered whether a company (WIT Strategy) that required an individual to form an LLC as a predicate to payment was an employee eligible for unemployment compensation. WIT Strategy v. Unemployment Compensation Board of Review, 2017 WL 5661148, at *1 (Pa. Cmwlth. 2017).  The majority explained the test for whether the worker was an employee as follows:

The burden to overcome the ‘strong presumption’ that a worker is an employee rests with the employer. To prevail, an employer must prove: (i) the worker performed his job free from the employer’s control and direction, and (ii) the worker, operating as an independent tradesman, professional or businessman, did or could perform the work for others, not just the employer.

Id. at *3. (quoting Quality Care Options v. Unemployment Comp. Bd. of Review, 57 A.3d 655, 659-60 (Pa. Cmwlth. 2012) (citations omitted; emphasis added)).

As to the first prong, the Unemployment Compensation Board of Review (UCBR) determined, and the court confirmed, that WIT Strategy had retained control over the claimant consistent with the type of control one exerts over an employee.  I might disagree with the assessment, but the test is correct, and the analysis reasonable, if not clearly correct.  Assessment of the second prong, though, is flawed.  

The court quotes the UCBR’s conclusions:

The [UCBR] does not find that [C]laimant was operating a trade or business, customarily or otherwise. The only reason [C]laimant formed the LLC was because WIT required it, claiming that it needed to pay [C]laimant through the LLC. WIT also claimed that doing so was a ‘common agency model’ for its kind of agency. The [UCBR] does not credit WIT’s testimony. Rather, although [C]laimant did perform two projects for other entities, each for under $600 [.00], there is no evidence that [C]laimant solicited business through her LLC since its inception in 2013 through her termination in 2015. [C]laimant worked for WIT 40 hours per week and did not have employees of the LLC to solicit business for her. Further, although WIT claimed that all its team members were required to have additional clients through their LLCs to share with it, WIT did not prove that [C]laimant had such clients. As [C]laimant did not operate a trade or business, but rather the LLC was formed as a type of shell corporation, the fact that [C]laimant was the single-member owner is not dispositive. [C]laimant was not customarily engaged in a trade, occupation, profession or business.

Id. at *4 (emphasis and modification in original).
 
Enter President Judge Mary Hannah Leavitt.  In dissent, Judge Leavitt writes what should be the majority opinion.  First, she notes that “quality control” is not the same thing as control by an employer.  I think her analysis of the control prong is the better one, but again, reasonable minds can assess these facts differently. As the second prong, Judge Leavitt also quote the UCBR, then proceeds to assess it correctly. She explains: 
The legal form by which Claimant provided public relations and communications services to WIT-provided clients and to her own clients is irrelevant. A sole proprietor may establish a single-member LLC for many reasons, the obvious being a desire to limit individual liability. It is not known what the Board meant by a “shell corporation,” and there is no evidence on this point. A limited liability company is not even a corporation. The Pennsylvania Associations Code provides as follows:
One or more persons may act as organizers to form a limited liability company ….
15 Pa. C.S. § 8821. A single-member LLC, such as Jilletante Creative, is a perfectly lawful and valid alternative to a sole proprietorship.
Claimant continued to operate as an LLC even after her separation from WIT. The record includes Claimant’s two-page detailed proposal to a potential client on “Jilletante Creative, LLC” letterhead, signed as “Jilletante Creative, LLC; By: Jillian Ivey, sole member.” R.R. 10a-11a. Jilletante Creative is not a sham or “shell” corporation, and characterizing it as such is a red herring in the analysis of whether Claimant worked for WIT clients as an employee of WIT or as an independent contractor.
Id. at *12 (Leavitt, Pres. J, dissenting). Yes!   “It is not known what the Board meant by a ‘shell corporation,’ and there is no evidence on this point. A limited liability company is not even a corporation.” This is exactly right. Further, there is nothing wrong with an LLC serving one client. Whether its because it is a requirements contract (e.g., I will do as much work for you as you require) or simply that the LLC’s owner is comfortable with the revenue coming from a single client, having only one client does not make you an employee.  
 
As a side note, as someone who has worked both for a law firm and a public relations agency, it is not at all uncommon for people in each profession to work as independent contractors.  A lawyer can be a solo and work for one client, or that lawyer can be hired an brought into the firm or in-house.  Same with PR professionals.  They may work as employees, but it is not uncommon to work as an independent contractor, in part to maintain the flexibility of work location, hours, and manner in which the work is completed.  
 
In the unemployment compensation context, what constitutes an employee can often be different than what one might deem an employee in the agency context. And that’s okay. Sometimes we craft different definitions for different purposes or policy goals.  But disregarding an entity as a “shell” merely because there is only one member is wrong because the law says it is wrong.  If a state wants to outlaw single-member entities, they can (they’d be wrong to do so, but that’s a different discussion).  But as long as the law allows it, the courts should respect it.  
 
Furthermore, when a person creates an LLC, they are actively engaging in the process of defining their relationship with others. I can come up with scenarios where maybe the existence of an LLC should be disregarded in the employment analysis, but more often than not the use of an LLC in the relationship should be compelling evidence of the type of relationship the parties have.  
 
Although this opinion still gets it wrong, there is hope. The dissent has set forth a proper path, and I can only hope others will follow. 
 
 

Friend-of-the-BLPB Ben Edwards penned a nifty op ed that was published yesterday (Sunday, November 26) in The Wall Street Journal.  (Sorry.  It’s behind a firewall, available only to subscribers.)  It covers a subject near and dear to my heart and does so in a novel way.  Specifically, in the WSJ piece (entitled “Immigrants Need Better Protection—From Their Lawyers”) Ben deftly describes the extremely low quality representation that immigrants receive in the United States, notes the market’s inability to self-correct to remedy the situation, shares his view that “the best solution–a right to immigration counsel similar to the right to a criminal defense lawyer–” is unlikely to attract and sustain the necessary legislative support, and proposes a novel second-best solution to the problem.

In a forthcoming article in the Washington and Lee Law Review, I argue that requiring disclosure of immigration lawyers’ track records could improve the market for representation. It almost certainly would drive some of the worst out of business. Who wouldn’t shop around after discovering a lawyer ranked in the bottom 10% by client outcomes? Although no lawyer should be expected to win them all, immigrants should get nervous if their lawyer always loses.

Ben uses the concept of a prospectus as his template reference point for the disclosure concept he describes in the article–unsurprising, perhaps, given his professional practice experience as a business litigator and the fact that his academic endeavors leverage that practice experience.  The title of the article is: The Professional Prospectus: A Call for Effective Professional Disclosure.  

I became aware of the many problems that immigrants have in securing adequate legal representation back in 1990.  Susan Akram (now Director of the International Human Rights Clinic at the Boston University School of Law, but then the Executive Director of the Political Asylum/Immigration Representation (PAIR) Project in Boston) came to the Skadden, Arps office in Boston, where I then was an Associate, and informed us about the particular difficulties in securing representation for asylees, whose chances of success in proving and prevailing in their asylum applications was almost nil without representation and relatively high with pro bono representation.  I left the room knowing I needed to help.  

The situation then described continues to exist today.  Ben notes in the WSJ op ed that

the best immigration lawyers may struggle to make a living because their corner-cutting competitors depress the price of services. That’s part of why many talented practitioners choose to abandon immigration law. This has led to a shortage of representation. One 2015 study found that only 37% of people in removal proceedings have lawyers.

He also relates that “[p]ro bono lawyers—who handle less than 10% of cases—win about 90% of the asylum claims they file.”

Over the years, working with the PAIR Project, I was proud to represent or assist in representing refugees from Somalia, Zaire (now the Democratic Republic of the Congo), Haiti, Burma (now Myanmar), and Ethiopia.  My Somali client married a U.S. citizen, became a permanent legal resident, and later became a U.S. citizen.  The daughter of the Zairean couple I worked with–who was separated from her parents in the journey to the U.S. but eventually reunited with them here with my assistance (and Senator Ted Kennedy’s help) is a nurse.  There are other stories, of course, as well.  Although I have lost track of many of the clients and their families over time, the pride in helping them has not diminished.

Ben’s professional prospectus idea has merit in the immigration lawyering context.  In my view, it is unlikely, alone, to completely solve the problem, and it may have trouble getting traction in the communities that would be responsible for its promotion and implementation.  But it is a step in the right direction in ensuring that immigrants get meaningful representation in navigating our complex legal waters, which currently are populated by too many sharks.