Today, I received the position announcement below from my friend Alicia Plerhoples (Georgetown), who is doing exciting things in the social enterprise and nonprofit areas. This is an excellent opportunity, and I think anyone would be fortunate to work with her and her clinic. 

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Georgetown University Law Center –
Graduate Teaching Fellowship, Social Enterprise & Nonprofit Law Clinic

Description of the Clinic

The Social Enterprise & Nonprofit Law Clinic at Georgetown University Law Center offers pro bono corporate and transactional legal services to social enterprises, nonprofit organizations, and select small businesses headquartered in Washington, D.C. and working locally or internationally. Through the Clinic, law students learn to translate theory into practice by engaging in the supervised practice of law for educational credit. The Clinic’s goals are consistent with Georgetown University’s long tradition of public service. The Clinic’s goals are to:

  • Teach law students the materials, expectations, strategies, and methods of transactional lawyering, as well as an appreciation for how transactional law can be used in the public interest.

  • Represent social enterprises and nonprofit organizations in corporate and transactional legal matters.

  • Facilitate the growth of social enterprise in the D.C. area.

    The clinic’s local focus not only allows the Clinic to give back to the community it calls home, but also gives students an opportunity to explore and understand the challenges and strengths of the D.C. community beyond the Georgetown Law campus. As D.C. experiences increasing income inequality, it becomes increasingly important for the Clinic to provide legal assistance to organizations that serve and empower vulnerable D.C. communities. Students are taught how to become partners in enterprise for their clients with the understanding that innovative transactional lawyers understand both the legal and non-legal incentive structures that drive business organizations.

    Description of Fellowship

    The two-year fellowship is an ideal position for a transactional lawyer interested in developing teaching and supervisory abilities in a setting that emphasizes a dual commitment—clinical education of law students and transactional law employed in the public interest. The fellow will have several areas of responsibility, with an increasing role as the fellowship progresses. Over the course of the fellowship, the fellow will: (i) supervise students in representing nonprofit organizations and social enterprises on transactional, operational, and corporate governance matters, (ii) share responsibility for teaching seminar sessions, and (iii) share in the administrative and case handling responsibilities of the Clinic. Fellows also participate in a clinical pedagogy seminar and other activities designed to support an interest in clinical teaching and legal education. Successful completion of the fellowship results in the award of an L.L.M. in Advocacy from Georgetown University. The fellowship start date is August 1, 2017 and the fellowship is for two years, ending July 31, 2019.

    Qualifications

Applicants must have at least 3 years of post J.D. legal experience. Preference will be given to applicants with experience in a transactional area of practice such as nonprofit law and tax, community economic development law, corporate law, intellectual property, real estate, and finance. Applicants with a strong commitment to economic justice are encouraged to apply. Applicants must be admitted or willing to be admitted to the District of Columbia Bar.

Application Process

To apply, send a resume, an official or unofficial law school transcript, and a detailed letter of interest by December 15, 2016. The letter should be no longer than two pages and address a) why you are interested in this fellowship; b) what you can contribute to the Clinic; c) your experience with transactional matters and/or corporate law; and d) anything else that you consider pertinent. Please address your application to Professor Alicia Plerhoples, Georgetown Law, 600 New Jersey Ave., NW, Suite 434, Washington, D.C. 20001, and email it to socialenterprise@law.georgetown.edu. Emailed applications are preferred. More information about the clinic can be found at www.socialenterprise-gulaw.org.

Teaching fellows receive an annual stipend of approximately $53,500 (estimated 2016 taxable salary), health and dental benefits, and all tuition and fees in the LL.M. program. As full-time students, teaching fellows qualify for deferment of their student loans. In addition, teaching fellows may be eligible for loan repayment assistance from their law schools.

The Wells Fargo headlines–fresh from a congressional testimony, a spiraling stock price, and a CEO with $41M less dollars to his name— raise the question of whether this is a case study of corporate governance effectiveness or inefficiency. That the wrong doing (opening an estimated 2M unauthorized customer accounts to manipulate sales figures) was eventually unearthed, employees fired and bonus pay revoked may give some folks confidence in the oversight and accountability structures set up by corporate governance. Michael Hiltzit at the LA Times writes a scathing review of the CEO and the Board of Directors failed oversight on this issue.  

The implicit defense raised by Stumpf’s defenders is that the consumer ripoff at the center of the scandal was, in context, trivial — look at how much Wells Fargo has grown under this management. But that’s a reductionist argument. One reason that the scandal looks trivial is that no major executive has been disciplined; so how big could it be? This only underscores the downside of letting executives off scot-free — it makes major failings look minor. The answer is to start threatening the bosses with losing their jobs, or going to jail, and they’ll start to take things seriously. 

Hiltzit and others are calling for the resignation of  Wells Fargo Chairman and CEO John G. Stumpf. 

Whats your vote?  Is the call for resignation an empty symbolism or a necessary consequence of governance?

Anne Tucker

Here we go again: 

Plaintiff seeks to collect the outstanding balance owed from Defendant Healthcare Enterprises, L.L.C. d/b/a Princesse Pharmacy and Defendant Octavio RX, Enterprises, L.L.C., d/b/a Christian’s Pharmacy & Medical Supplies (collectively “Corporate Defendants”) as well as Defendant Christian. (Dkt. No. 13 at 3). Plaintiff alleges that Corporate Defendants “are shell corporations or alter egos of [Defendant] Christian, owner of the different establishments known as Princesse Pharmacy, [and] Christian’s Pharmacy & Medical Supplies.”
Cesar Castillo, INC. v. Healthcare Enterprises, L.L.C., CV 2012-108, 2016 WL 5660437, at *1 (D.V.I. Sept. 27, 2016). 
 
So, the “Corporate Defendants” are actually formed as a limited liability company (LLC).  As so often happens, the court get this wrong. This is one of the challenges that come from veil piercing law that treats all such cases a “piercing the corporate veil” instead of “piercing the entity veil” or piecing the veil of limited liability.”  The court ultimately dismisses the veiling piercing claim as to Christian individually because there were no factual allegations in the complaint sufficient to support veil piercing.  I would have dismissed it for making an impossible assertion.  Following is the from th complaint: 
The defendants Octavio Rx Enterprises, LLC and Healthcare Enterprises, LLC are shell corporations or alter egos of Gerard Christian, owner of the different establishments known as Princesse Pharmacy, Christian’s Pharmacy & Medical Supplies.
These are LLCs, which cannot be “shell corporations.” We’re done.  Furthermore, it’s not at all clear that the Virgin Islands recognize veil piercing for LLCs. I admit, they almost certainly do, as even when statutes don’t mention veil piercing, courts usually adopt it. Still, it would be nice for someone to cite the authority that extend veil piercing to LLCs or state that they are extending the doctrine.  Instead, even the defendant assumes the veil piercing option exists, stating,” [A] court will permit the plaintiff to pierce the corporate veil only when it determines that the corporation is ‘little more than a legal fiction.’ Pearson v. Component Technology Corp., 247 F.3d 471, 485 (3rd Cir.2001).” 
 
This is a case where the complaint gets wrong the entity type, and which then means it messes up how the entity should be analyzed. The defendant’s counsel doesn’t hold the plaintiff accountable. And the court allows it all.  I think the court did get the outcome right, at least.
 
The thing is, though, if even one of these parties got it right, the whole thing probably ends up right. It’s obviously going to be a long road to get this right, but for the record, I am willing to fly to the Virgin Islands to help out.  
 

The Stanford Law Review Online has just released a series of essays on Salman v. United States, scheduled for oral argument on Wednesday.  I plan to blog more about the Salman case as/if I can find time this week, but I wanted you to have this link right away–first thing this morning.  The essays are a veritable insider trading feast and are written by some of the most thoughtful scholars in the area: Jill Fisch, Don Langevoort, Jonathan Macey, Donna Nagy, and Adam Pritchard.  There’s something in at least one of the essays for almost everyone out there.

I have to say, it pains me that this is even news – that price maintenance as a form of fraud on the market should, I believe, be unexceptionable, indeed, necessary for the theory to function properly.

But the idea has been at least somewhat rejected by the Fifth Circuit – see Greenberg v. Crossroads Sys., 364 F.3d 657 (5th Cir. 2004) – and defendants are vigorously disputing the legitimacy of price maintenance elsewhere.

So it comes as something of a relief that in In re Vivendi, S.A. Sec. Litigation, 2016 U.S. App. LEXIS 17566 (2d Cir. Sept. 27, 2016), the Second Circuit has now joined the Eleventh Circuit, see FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d 1282 (11th Cir. 2011), and the Seventh Circuit, see Glickenhaus & Co. v. Household Int’l, Inc., 787 F.3d 408 (7th Cir. 2015), with a full-throated endorsement of the idea that even if a fraudulent statement does not introduce “new” inflation into a stock’s price – even if it simply maintains existing inflation by confirming an earlier false impression – that too violates Section 10(b) and is actionable using the fraud on the market doctrine. 

Beyond this simple holding, though, there are some interesting nuggets buried in the reasoning that are worth exploring.

First, the Second Circuit discussed the policy reasons for recognizing price maintenance as a form of fraud.  It offered a hypothetical example of a company where – due to its past operating history – investors make certain assumptions about the quality of its products.  Those assumptions are false with respect to a new product.  Under such circumstances, the stock price is inflated, but not because of any fraud by the company.  In that situation, if price maintenance is not actionable, the company would be completely free to fraudulently confirm investors’ false assumptions.

I’d only add to that that there are plenty of situations where the initial inflation might be due not to investors’ faulty assumptions, but due to the company’s own actions.  In FindWhat, for example, the initial inflation was introduced by the company’s own false statements – but the Eleventh Circuit concluded that the original statements were not made with scienter, so they were inactionable.  If price maintenance theory is not accepted, then once a company negligently misinforms the market, it is free to intentionally do so (but see the duty to correct, discussed below).

Similarly, in IBEW Local 98 Pension Fund v. Best Buy Co., 818 F.3d 775 (8th Cir. 2016) (which I previously discussed here, the initial false statements were immunized by the PSLRA’s safe harbor.  If price maintenance theory is not accepted, companies can simply lie via forward looking statements, and use the resulting artificial inflation to lie about related facts.

The second thing worth discussing is that one of Vivendi’s arguments was that even if a statement confirmed previous (false) information, that statement could only have “propped up” the previously-inflated price if silence would have revealed the truth.  That is, in Vivendi’s view, if simply remaining silent would have had the same effect as the confirmatory false statement (and silence was an option, i.e., there were no affirmative disclosure requirements in play), then the statement cannot be said to have impacted price.

That’s an argument that’s been endorsed by Don Langevoort (see Compared to What? Econometric Evidence and the Counterfactual Difficulty, 35 J. Corp. L. 183 (2009); see also Judgment Day for Fraud-on-the-Market: Reflections on Amgen and the Second Coming of Halliburton, 57 Ariz. L. Rev. 37 (2015)), and I’ve also gone back and forth about here and in my essay Searching for Market Efficiency, 57 Ariz. L. Rev. 71 (2015).

But the Second Circuit rejected the silence comparator wholeheartedly.  Part of the reasoning was kind of a burden-shifting idea: we’ll never know what would have happened if the company remained silent, because Vivendi chose to speak.  And Vivendi is responsible for that.

But additionally, the Second Circuit fell back on the point that once a company chooses to speak, it has a duty to speak fully and accurately.  In other words, once Vivendi chose not to remain silent, it did not have the option of failing to reveal the truth.

The reason I find this striking is that it’s a roundabout way of getting at what would have been a much simpler frame: The duty to correct.

The duty to correct is fairly uncontroversial in theory.  See, e.g., Overton v. Todman & Co., 478 F.3d 479 (2d Cir. 2007); Gallagher v. Abbott Labs., 269 F.3d 806 (7th Cir. 2001)).  Once a company knows it has issued false statements, it has a duty to correct them.

Here, the plaintiffs must have proven that Vivendi was aware of the fraud – we wouldn’t even be discussing price maintenance if it was unaware – so presumably, Vivendi did not have an option of remaining silent; it was legally obligated to confess.

But the duty to correct has always been a bit tough to parse, if for no other reason than it is difficult to pinpoint which person precisely in the corporation has that duty.  See United States v. Schiff, 602 F.3d 152 (3d Cir. 2010); but see Barrie v Intervoice-Brite, 409 F.3d 653 (5th Cir. 2005).  In Vivendi, the jury found the corporate defendant liable but absolved the individual ones, which renders the problem more complex.

Moreover, it’s not clear how the duty to correct comes into play if the original statements were immunized – like, say, via the PSLRA safe harbor.

So rather than discuss whether Vivendi had an affirmative duty to speak once it realized that earlier statements were false, the Second Circuit instead simply said that the confirmatory statements were themselves the equivalent of half-truths that gave rise to a duty of a full confession.  As the Second Circuit put it, “in suggesting that, had it remained silent, the misconception‐induced (whether or not fraud‐induced) inflation would have persisted in the market price, Vivendi assumes it is even relevant what would have happened had it chosen not to speak. Yet in framing the argument this way, Vivendi misunderstands the nature of the obligations a company takes upon itself at the moment it chooses, even without obligation, to speak. It is well‐established precedent in this Circuit that ‘once a company speaks on an issue or topic, there is a duty to tell the whole truth…’”

In any event, the upshot is: Price maintenance as an argument solidly prevails; we’ll see if defendants have better luck with their opposition in other circuits.

JLSE

The Journal of Legal Studies Education (“JLSE“) is accepting article and case study submissions. The JLSE is a peer-reviewed legal journal focused on pedagogy. In 2015, I published a case study with the JLSE, had an excellent experience, and received helpful comments from the reviewers. The announcement is below:

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The Journal of Legal Studies Education is seeking submissions of manuscripts. The JLSE publishes refereed articles, teaching tips, and review of books.  Manuscripts must relate to teaching, research, or related disciplines such as business ethics, business and society, public policy and individual areas of business law related specialties. The Editorial Board selects high quality manuscripts that are of interest to a substantial portion of its readers. 

The JLSE is a double-blind peer-reviewed journal.

Please submit directly to Stephanie Greene, JLSE Editor-in-Chief, at stephanie.greene@bc.edu.

 

Stephanie M. Greene

Chair, Business Law Department

Professor, Business Law

Carroll School of Management

Boston College

Chestnut Hill, MA 02467

Proposal Due October 7, 2016

The Anti-Corruption Law Interest Group of the American Society of International Lawyers Law (ASIL)
 
Invites you to Attend and/or Submit a Proposal for its Winter Conference in Miami
 
Controlling Corruption:  Possibilities, Practical Suggestions & Best Practices
 
January 13-14, 2017, at the University of Miami, Coral Gables, Florida
Co-sponsored by:
The Business Ethics Program, University of Miami School of Business Administration,
The Zicklin Center for Business Ethics Research, Wharton, University of Pennsylvania,
University of Richmond School of Law and Bentley University
 
The conference will examine the state of international and domestic efforts to reduce corruption, with a focus on practical applications and emerging best practices.  We invite proposals for papers that approach the topic with fresh perspectives that promote productive action.   The goal of the conference is to help develop publishable papers and to foster dialogue between academics and practitioners engaged in anti-corruption and compliance efforts.
 
     Topics might include, but are not limited to:
·       The Mossack Fonseca (Panama) Papers, Evidence of Corruption and Resulting Enforcement Action
·       The future of the UK Bribery Act
·       “Goals Gone Wild”:  Rethinking Incentives to Combat Corruption
·       Data-driven Compliance
·       Business Continuity Plan & Global Practices
·       Driving a Culture of Compliance from the Top/Down
·       The McDonnell Fallout on Compliance and Enforcement 
Conference Format:
·       Starts at 1 pm, Friday, January 13, panels and presentations until 6 pm
·       Continues on Saturday, 9 am – late afternoon
·       Hotel block reserved for participants for Friday and Saturday nights; can be extended for early arrival and/or late departure based on availability
Important Dates: 
·       October 7, 2016:    Two page proposal and CV to Ms. Ginny Ryan,vryan@bus.miami.edu
·       October 15, 2016:   Invitations to participate will be extended
·       December 1, 2016:  Five page paper due, which will be circulated to co-panelists for their review, comment, etc.  
 
Should you have any questions, please feel free to contact Ginny Ryan at 305-284-6648. Many thanks.

On Monday, Doug Moll posted a great question about RUPA 404(e), which also got some great comments. I started to write a reply comment, but it got so long, I though it worked better as a separate post.  Doug asks the following (whole post here):

Under the “cabining in” language of RUPA (1997), the action has to fit within § 404(b) to be considered a breach of the duty of loyalty.  Section 404(b)(1) prevents the “appropriation of a partnership opportunity.”  When a partner attempts to block the partnership from taking an opportunity to protect the partner’s own related business, can it be argued that the partner is, at least indirectly, seeking to appropriate the opportunity for himself?

Alternatively, might the partner’s vote violate the § 404(b)(3) obligation to “refrain from competing with the partnership”?

Here’s where I come out it: 

As I think about it, I am with Frank Snyder’s comment that “a partner is entitled to pursue her own interests in voting her partnership interest, unless there’s some agreement to the contrary.”  I also think, though, that § 404(e) sanctions self-interested votes, subject to “the obligation of good faith and fair dealing” required under § 404(d).  

So, I am not that troubled by the example from the comments that Doug cites, though I see where his concern comes from. To repeat the comment:  

For example, a partner who, with consent, owns a shopping center may, under subsection (e), legitimately vote against a proposal by the partnership to open a competing shopping center.

First, because it’s clear that the partner first got consent to own the shopping center, the partner is not competing with the partnership, as I see it. Actually, the partnership wants to compete with the existing center, which one partner owns with consent of the partnership. As such, because of the consent, I don’t think § 404(b)(3) is a concern here. Section 404(e) says a self-interested vote is permissible, so the question is whether such a vote is consistent with the obligation of good faith and fair dealing from § 404(d). 

Given that the partnership consented to ownership of the shopping center, it seems that the rest of the partnership would reasonably expect that the partner would not be excited to create a competitive shopping center. With this knowledge on both sides, it seems to me that casting a vote against a new shopping center can occur in good faith and mean the partner dealt fairly. The rest of the partnership can still proceed with the plan if they have enough votes under the partnership agreement, and if not (e.g., unanimous vote was needed), too bad.  

Even without disclosure and consent, this might be permissible.  Suppose existing partnership A owns a car dealership. The dealership was a Pontiac, Oldsmobile, and Saturn, dealer, and they are done and new use for the property will be needed. Suppose that one of the partners also owns a shopping center with another group of people, as part of partnership B. Should that partner be precluded from voting against converting the dealership in partnership A to a shopping center?  I don’t think so.

In addition, Gottacker v. Monnier, 697 N.W.2d 436 (Wis. 2005) provides an interesting LLC parallel to this situation.  Under the Wisconsin LLC act, the court says:

We determine that the WLLCL does not preclude members with a material conflict of interest from voting their ownership interest with respect to a given matter. Rather, it prohibits members with a material conflict of interest from acting in a manner that constitutes a willful failure to deal fairly with the LLC or its other members. We interpret this requirement to mean that members with a material conflict of interest may not willfully act or fail to act in a manner that will have the effect of injuring the LLC or its other members. This inquiry contemplates both the conduct along with the end result, which we view as intertwined. The inquiry also contemplates a determination of the purpose of the LLC and the justified expectations of the parties.

Id. ¶ 31. In that case, two members effectively transferred property from one entity to another, leaving a third member out. There was no question they were conflicted in their votes, but the test was not whether they could act vote in a conflicted manner (as they did). Instead, the question was whether they dealt fairly and in good faith, which had to be decided on remand (the court said they did).  In assessing whether the entity or other members are injured, then, as long at the voting was done consistent with the organizing agreement, I think the test is whether the partner in question is getting something unfairly to the detriment of the other members. 

Lastly, to Doug’s example, in the comments to his post, he said:  “[W]hen I vote to, for example, block the partnership from raising the rent on a property that I originally leased several years ago from the partnership (and with the partnership’s permission), it is hard for me to understand why that vote should not be considered a breach of duty.” It seems to me that should not be a breach of fiduciary duty unless it violates some express agreement to the contrary. 

There can be good faith and fair dealing under § 404(d) in such a case, and the partnership agreed to the terms up front. The question to me is simply, what kind of vote is needed to raise the rent? Again, if it requires unanimous consent, that’s the partnership’s problem. They could have changed that when they originally agree to the deal.  If it’s majority vote, the other partners can change the rent despite the conflicted partner’s no vote.  I see no need to protect this kind of transaction with mandatory fiduciary duties. There’s not a disclosure or fair dealing problem to me, so I would sanction it, and I think that’s the specific intent of § 404(e).

I admit, I am sometimes amazed at how much of a contractarian I have become. 

 

As law professor, most of my students are Millennials. What does that mean?  Well, Neil Howe and William Strauss, in their book Generations: The History of America’s Future, 1584 to 2069, published in 1991, defined Millennials as those born between 1982 and 2004. I’ll go with that.  As one who is firmly part of Generation X (the age group and not the band, though that would be cool), I’m curious. It seems that some people think so.  I don’t think Gen Xers think of themselves as such very often. 

What made me think of this?  A political ad from NextGen Climate, funded by hedge fund billionaire/environmental activist Tom Steyer, apparently seeks to generate more support for Hillary Clinton by targeting Gary Johnson. The ad is below.  The ad begins: “Thinking about voting for Gary Johnson? In case you missed it, climate change will cost millennials over $8 billion if no one does anything about it.”

 

 That’s just weird to me.  I know it’s trying to motivate that age group of voters, but I am not sure many Millennials would think of themselves as such.  That is — does it resonate at all to have this ad targeted at them in that way? 

I guess age-group labels like this are thrown around a lot, and I just forgot.  The ABA has a mentoring article from 2004 called Generation X and The Millennials: What You Need to Know About Mentoring the New Generations.  It’s for “Boomers” who have to deal with us Gen Xers and Millennials. The piece makes some pretty bold assertions (some of which certainly aren’t true twelve years later). For example:

All Millennials have one thing in common: They are new to the professional workplace. Therefore, they are definitely in need of mentoring, no matter how smart and confident they are. And they’ll respond well to the personal attention. Because they appreciate structure and stability, mentoring Millennials should be more formal, with set meetings and a more authoritative attitude on the mentor’s part.  

Perhaps most of that is right.  There is some value here, even though my experience is that formal mentoring is not always well received. Then again, maybe that’s my bias. After all, “members of Generation X dislike authority and rigid work requirements. An effective mentoring relationship with them must be as hands-off as possible. . . .Gen Xers work best when they’re given the desired outcome and then turned loose to figure out how to achieve it.” I don’t know about the first part, but last two sentences are definitely me.  

So, while I find the description of Millennials a little overbearing, as I think about it, it explains a lot. I think a lot of us from the Gen X world can’t understand why we can’t tell students what we want and have them come back with a solution.  That’s what WE do, not necessarily what they do (unless we make it clear that’s what we want).  

I don’t like broad generalizations of groups, but I have to admit that the 2004 article’s suggestions for working with Millennials is actually consistent with a lot of what I have been doing (and working toward). I just never thought of it as trying to reach Millennials.  I thought of it as trying to reach students.  Turns out, in most cases, that’s the same thing.  

I remain skeptical of the likely efficacy of the ad, but maybe there’s more here than I originally thought.  Still, I’m not sure an anti-Gary Johnson ad gets anyone very far right about now.