No, not that conference, although I suppose that one’s nice too.  

In (very) loose association with that other conference, Tulane hosted a corporate academic conference, made possible by the generous donation of one of our alums, Gordon Gamm, and his wife Grace.

The academic conference, which took place on Saturday, April 1 immediately following the Tulane Corporate Law Institute, was great fun, and allowed me to reconnect with old friends and make some new ones.  It was structured on the theme of Navigating Federalism in Corporate and Securities Law, and featured presentations by 11 corporate and securities scholars (including me!).  

Discussion ranged from how to encourage retail shareholders to exercise their corporate voting rights to whether to redesign the internal affairs doctrine to controlling corporate political spending to issues of SEC regulatory capture and the intensity of its enforcement efforts to – of course – how, and even whether, we should distinguish corporate law from securities law.  Most of the papers were in draft form and are not yet publicly available, but a few are up, including Ed Rock’s and Daniel Rubenfeld’s Defusing the Antitrust Threat to Institutional Involvement in Corporate Governance, Robert Jackson’s, Robert Bishop’s, and Joshua’s Mitts’s Activist Directors and Information Leakage, J.W. Verret’s Uber-Ized Corporate Law, and my own Reviving Reliance.  

It was genuinely a lively and productive day, capped with a (naturally – this is New Orleans) mouthwatering dinner at Emeril’s Delmonico.

I am so grateful to everyone for making it such a special event.  And fingers crossed, we’ll be able to host a similar conference next year, also timed to follow the Corporate Law Institute.  With any luck, it can become a regular annual event. 

The full program is here.  

The Washington Post reports: 

Back in 2015, Salesforce CEO Marc Benioff admitted something many CEOs wouldn’t: The company had found a pay gap between the men and women who worked for the cloud computing giant, and it was spending $3 million to fix it. Now after acquisitions and rampant growth at the company brought in 7,000 new employees in the past year, he’s doing it again, announcing Tuesday that the company has spent another $3 million to adjust for a pay gap that affects 11 percent of its more than 25,000 employees.

In an interview with The Washington Post, Benioff said he believed the re-opened gap was largely because of the company’s acquisitive streak — it bought 14 companies in its last fiscal year, the largest in its history. When companies acquire others, Benioff said, “you buy their pay practices, and this pay practice — of, basically, gender discrimination — is quite dramatic through our industry and other industries,” he said.

If one cares about equal pay, and I think people should (beyond just today), one needs to account for it in the purchase price of another entity.  This is a great reminder about the due diligence process. We need to think about all the things that matter to our clients (and ask them what those things are). The cost of implementing those things that matter, in addition to all the traditional things we worry about in an acquisition, should be accounted for if we want to maximize benefit for clients.   

From time to time, we at the BLPB offer our views on publishing with law reviews.  The excellent, the good, the bad, the ugly–apparently, we have seen it all (or at least close to it).  See, e.g., Marcia’s post from last year that includes links to many of these prior posts.  This post carries forward that tradition.  

Two-and-a-half years ago, I published a post entitled Nightmare in Law Review Land . . . . That post included the two standard instructions that I routinely give to law reviews when I submit stack-check drafts.

The first is to leave in the automatic footnote cross-referencing that I have used in the draft until we finalize the article.  The second is to notify me if the staff believes that new footnote citations or citation parentheticals need to be added (specifically noting that I will handle those additions myself).

For the most part, this has worked well for me.  Recently, however, I received the following response to the second instruction:

Thank you for your notes. As part of our editing process, we add any needed citations and parentheticals. We build in time to do this and tend to be fairly thorough. If there are questions regarding sources or an individual has trouble finding sources, our Lead Article Editor (who will serve as your main contact) will reach out to ask you for assistance. As a general rule, our journal does tend to add a large number of parentheticals. I only mention this because it has sometimes caught Authors off guard in the past and I thought it would be worth mentioning on the front end. You will have two opportunites to review the parentheticals and added citations over the next few months to ensure they are consistent with your work.

I should have pushed back.  I didn’t.  The result?  I got back a draft with a bunch of new, bungled footnote citations and parentheticals.  It took me hours to run down the new sources cited and consider  them.  I responded with significant edits in the draft and the following comments in my cover message, in pertinent part (edited to omit a few typos):

[F]ootnote citations were frequently inserted in places (especially in the introduction and other areas in which I have provided a “roadmap”—a summary of where the text will go next) where I do not believe they are needed. I have left specific comments in each place, although I fear they may not be well enough developed. But ask questions where you have them.

Relatedly, the citations inserted for a number of these new footnotes supported principles other than those in the cited sentence. . . .  In each case, I tried to go find the material being referenced in the cited source and evaluate whether it supported the stated principle. Then, if I found a disconnect, I suggested in the margin an alternative footnote. . . .  [I]f you decide under your editorial guidelines that a citation is required, please use the alternative I provided. . . .

Also, parentheticals were added in places where they are not required, e.g., in general citations to cases . . . .  I took them out. If you require parenthetical in these places, please just ask and I will supply them. The parentheticals that were added were either so general that they were unhelpful or included inapposite information.

I am not sure my tone was right on the message.  But I admit that I was frustrated and disappointed–maybe more with myself than with the law review students who worked on editing the article–when I wrote the message.  My time in cross-checking all those faulty citations and parentheticals was entirely wasted.  I could easily have added some footnotes and parentheticals where I had missed including them in the draft I submitted, as necessary or desired.  It would have taken a lot less time (more like ten, instead of thirty, hours).

Have any of you had this same issue with law review editors?  I originally experienced this years ago, which led to my standard instruction.  But it seems the problem persists.  So, it must have something to do with the way law review editors are instructed–or instruct each other.  Perhaps that instruction requires more thought . . . .

At any rate, since I started issuing my two standard instructions, I have had fewer dissatisfying experiences.  I plan to continue with the practice of including them when I submit draft articles for review.  And I guess next time a law review insists in response on supplying new footnotes and parentheticals, I will send the editors a link to this post . . . .

UCLA School of Law, in conjunction with the University of Richmond School of Law, Boston University School of Law, and University of Illinois College of Law, invites submissions for the Fifth Annual Workshop for Corporate & Securities Litigation. This workshop will be held on October 20-21, 2017 at UCLA School of Law in Los Angeles, California.

Overview

This annual workshop brings together scholars focused on corporate and securities litigation to present their scholarly works. Papers addressing any aspect of corporate and securities litigation or enforcement are eligible. Appropriate topics include, but are not limited to, securities class actions, fiduciary duty litigation, or comparative approaches to business litigation. We welcome scholars working in a variety of methodologies, as well as both completed papers and works-in-progress at any stage.

Authors whose papers are selected will be invited to present their work at a workshop hosted by UCLA School of Law on October 20-21, 2017.  Hotel costs will be covered. Participants will pay for their own travel and other expenses.

Submissions

If you are interested in participating, please send the paper you would like to present, or an abstract of the paper, to corpandseclitigation@gmail.com by Friday, May 26, 2017. Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified by late June. 

Questions

Any questions concerning the workshop should be directed to the organizers: Jim Park (James.park@law.ucla.edu), Jessica Erickson (jerickso@richmond.edu), David Webber (dhwebber@bu.edu) and Verity Winship (vwinship@illinois.edu).

The big news in securities litigation this week is that the Supreme Court has agreed to resolve the circuit split over whether a failure to disclose required information can function as a misleading omission for purposes of Section 10(b).

I’ve blogged about this split before; basically, my take is that courts are wary of omissions liability not simply because they distrust securities litigation in general, but because they are concerned about further blurring the line between fraud claims and claims for mismanagement.

Which, fortuitously, happens to be the subject of my new article, forthcoming in the Fordham Law Review and just posted to SSRN.  I argue that courts are using issues like puffery, loss causation/damages, and omissions liability to draw distinctions between fraud claims and mismanagement claims and – further – to sketch out a (relatively narrow) view of the proper role of shareholders within the corporate governance structure.  I hastily amended the piece before posting to account for the cert grant; my quick prediction is that if the Supreme Court does permit omitted information to serve as the basis of a Section 10(b) claim, lower courts – concerned about this fraud/mismanagement line – will find themselves narrowing the scope of what counts as a required disclosure in the first place, which will then impact not only private plaintiffs, but potentially also government enforcement efforts.

As Professor Steve Bainbridge and others reported last May, SSRN was sold to Elsevier. 

Until a few weeks ago, I hadn’t noticed much of a difference, except for an improved layout on the article pages.

After posting my American Business Law Journal (“ABLJ”) article, however, I got an e-mail that my article had been taken down. They claimed that the copyright was held by the ABLJ, which is simply incorrect, as my contract with Wiley (the publisher of the ABLJ) clearly states “The Author retains ownership of the copyright in the Article,” and the contract explicity allows me to post the article (including on SSRN) with citation. (Section 2.1)

I sent SSRN my contract and waited a number of days without a response. I then called SSRN’s help line and received an apology, but the person did not have the ability to post my article even though she said that they had received the contract and that everything was cleared. The article is now up (and went up shortly after my phone call to SSRN), unless they have already taken it down again.

The whole thing was quite a hassle, and I am not quite sure why they flagged this article.

I do generally find SSRN useful, and in the grand scheme of things this is not a huge deal, but if anyone has a better alternative, I may be willing to try it.

I only had 2 relevant SSRN postings in my Twitter feed the past 7 days, so I’m starting with 3 additional items I just pulled from “SSRN Top Downloads For Corporate Governance Network … for all papers first announced in the last 60 days” (available here).

more than 80% of IROs [Investor relations officers] report that they conduct private ‘call-backs’ with sell-side analysts and institutional investors following public earnings conference calls

https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2934937

Bargains between those who control corporations and those who control government institutions to benefit themselves ….

https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2909183

Lack of comparability due to the lack of reporting standards is the primary impediment to the use of ESG [environmental, social and governance] information.

https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2925310

And here are the Tweets: