Following on Joan’s excellent post about networking letters, I wanted to share a few words about thank you letters.

Attorney Kyle Westaway organizes “thank yous” into four levels:

  • Level 1 — Email saying thanks for the time and insight.
  • Level 2 — Level 1 + this is how your insight impacted my life.
  • Level 3 — Handwritten thank you note.
  • Level 4 — Level 3 + a small gift.

This seems right, and Kyle’s entire post is well worth reading at the link above.

A mere thank you e-mail usually isn’t worth much, but it is better than nothing (unless the thank you is typo-riddled, and then it might be worse than nothing). The e-mail is worth more if the author recounts meaningful specifics from your conversation or picks up on a way that he/she might be of assistance.

The handwritten note has made a comeback after interviews, but I don’t think it has had the same resurgence after networking/advice meetings. This is a shame because generally the interviewer is just doing his or her job, while the person who is honoring your networking/advice request is usually the one bestowing a true gift. Due to the relative rarity, I think handwritten notes are even more appreciated after a networking/advice meeting than after an interview. For handwritten notes, I think it is worth investing in personalized stationery and trying to remember to send the notes right away so that the delay is not elongated.  

As to small gifts, those obviously would not be appropriate after an interview, but might be a really nice touch after a networking/advice meeting. If any readers have good thoughts on appropriate small gifts, please share in the comments or over email. I have always had a hard time thinking of these kinds of gifts. Wine seems like a common choice, but it could be risky unless you know the person drinks alcohol.

Finally, this recent article in the Harvard Business Review entitled Stop Making Gratitude All About You struck a chord. The author suggests praising the recipient rather than just describing how the recipient benefited you or made you felt. Of course, praise should be sincere and can be overdone, but I think the author is onto something.

Jamie Dimon (JP Morgan Chase), Warren Buffet (Berkshire Hathaway), Mary Barra (General Motors), Jeff Immet (GE), Larry Fink (Blackrock) and other executives think so and have published a set of “Commonsense Principles of Corporate Governance” for public companies. There are more specifics in the Principles, but the key points cribbed from the front page of the new website are as follows:

Truly independent corporate boards are vital to effective governance, so no board should be beholden to the CEO or management. Every board should meet regularly without the CEO present, and every board should have active and direct engagement with executives below the CEO level;

■ Diverse boards make better decisions, so every board should have members with complementary and diverse skills, backgrounds and experiences. It’s also important to balance wisdom and judgment that accompany experience and tenure with the need for fresh thinking and perspectives of new board members;

■ Every board needs a strong leader who is independent of management. The board’s independent directors usually are in the best position to evaluate whether the roles of chairman and CEO should be separate or combined; and if the board decides on a combined role, it is essential that the board have a strong lead independent director with clearly defined authorities and responsibilities;

■ Our financial markets have become too obsessed with quarterly earnings forecasts. Companies should not feel obligated to provide earnings guidance — and should do so only if they believe that providing such guidance is beneficial to shareholders;

■ A common accounting standard is critical for corporate transparency, so while companies may use non-Generally Accepted Accounting Principles (“GAAP”) to explain and clarify their results, they never should do so in such a way as to obscure GAAP-reported results; and in particular, since stock- or options-based compensation is plainly a cost of doing business, it always should be reflected in non-GAAP measurements of earnings; and

■ Effective governance requires constructive engagement between a company and its shareholders. So the company’s institutional investors making decisions on proxy issues important to long-term value creation should have access to the company, its management and, in some circumstances, the board; similarly, a company, its management and board should have access to institutional investors’ ultimate decision makers on those issues.

I expect that shareholder activists, proxy advisory firms, and corporate governance nerds like myself will scrutinize the specifics against what the signatories’ companies are actually doing. Nonetheless, I commend these business leaders for at least starting a dialogue (even if a lot of the recommendations are basic common sense) and will be following this closely.

There are a number of short articles on benefit corporations in today’s issue of the ABA’s Business Law Today, including one on benefit corporation reporting by me.

My contribution is based on my 2015 West Virginia Law Review article, An Early Report on Benefit Reports, which showed under 10% compliance with benefit corporation reporting, noted problems with the statutory framework, and suggested statutory amendments.

Last week on the blog I featured the smart book Empire of the Fund by sharing excerpts from a conversation with author, Professor William Birdthistle.  In discussing the book, he shared with me some insights on writing a book:  its process, genesis and use in the classroom.  I am fascinated by other’s people writing process in the continual effort to improve my own.

writing a book…

[W]riting a book was more of a challenge than I expected, even though I told myself it was simply a collection of law review articles.  It turns out that the blinking cursor on an empty screen is more taunting when you’re obliged to fill hundreds of pages.  Brief stints of productivity need to be repeated again and again and, until it all exists, nothing really exists.  I developed a convoluted system of drafting notes, then sitting down with a research assistant to record a chat about those notes, then working that recording into an outline.  That process still left me with plenty of writing to do, but I found it much easier to expand, polish, and revise those outlines than to fight the demon blank page.

Talking through your ideas forces you to synthesize the materials. It also retains the humanity behind the arguments.  This method makes a lot of sense when you read Professor Birdthistle’s book because it feels like he is talking to you— just in a way that is smarter, better organized and more pithy than most of us can muster in the average conversation.  His book doesn’t read like the belabored, bloated, and laborious sections that all too often find their way in law review articles (my own included).

genesis for the book…

The contents, to a large extent, have actually come from the classroom — as these materials serve as the syllabus for a seminar I’ve taught for a few years.  The seminar, called Investment Funds, is almost always popular: in a go-go market, all the students want to hear about private equity and hedge funds; then in downturns, I get a sober audience of students who want to know more about their 401(k)s. 

application to broader classes…

I often work this material in to my BusOrg and SecReg classes too: so, I emphasize the role of funds on topics like corporate purpose (does charitable giving look different if the corporate funds might otherwise go to 401(k) holders), proxy contests (in which mutual funds are major institutional investors but often conspicuously absent from these fights), shorting (where the securities are often borrowed from mutual funds and ETFs), and behavioral versus neoclassical theory (quoting heavily from a wonderful disagreement between Judges Easterbrook and Posner in Jones v. Harris before it went to the Supreme Court).  

Since almost all students will soon be figuring out their own 401(k) and mutual fund investments, I’ve found that it’s easy to make business issues far more salient to their lives.  Even to the saints who’ll soon have a 403(b).

the role of behavioral work…

Finally, I highlight Professor Birdthistle’s observations about changes to the corporate law landscape made space for a book like his to contribute, in a serious way, to the academic and popular debate about the efficacy of the mutual fund market.

I’ve been struck by the change in our intellectual and academic disposition towards investing problems.  I’ve been in the academy for a decade now and, when I began, the rational investor model was so thoroughgoing that it was difficult to discuss problems of individual investing.  Many conversations — and job talks — required a first-principles exegesis about how this market might possibly be anything other than highly efficient.  But a tide of behavioral work in recent years has helped explain why investors might struggle, and a good deal of empirical work has concretely shown how they struggle.  So conversations today focus more upon solutions rather than on whether there is even a problem.

To this last point, I wonder what ideas and principles, which seem untouchable today, will give way to the next generation’s breakthrough.  I think is a particularly heartening message for young scholars–not all of the work has been done! Keep at it!  And it is an important message for folks who aren’t writing in the mainstream. For folks who are passionate about their work, but feeling like their ideas aren’t garnering the right cache with the right audiences. This is where you persevere so long as the work is thorough and well researched.  Maybe you and your work are contributing to an important intellectual advancement.  You could be changing the tides in ways that in presently imperceptible, but significant nonetheless.  So as the August submission deadline looms and the summer hours threaten to languish, press on!

Because this post is a compilation of quotes, I now turn to Garrison Keeler to close:

Be well, do good work, and keep in touch.

Anne Tucker*

*Query:  Are the best motivational speeches are the ones you write for yourself?

Registration is now open for the Central States Law Schools Association 2016 Scholarship Conference, which will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND. We invite law faculty from across the country to submit proposals to present papers or works in progress.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.

Please click here to register. The deadline for registration is September 2, 2016.

Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2016 Annual Conference please subscribe to our blog.

We look forward to seeing you in Grand Forks!

Sincerely,

The 2016 CSLSA Board
For more information about CSLSA, visit our website at http://cslsa.us/ or contact a board member.

Today I will pose a simple question: Is Entity Type Material?  

Of course, context matters, so here’s where this is coming from: On July 1, 2016, Canterbury Park Holding Corporation filed an 8-K making the following announcement: 

SHAKOPEE, Minnesota (July 1, 2016) – Canterbury Park Holding Corporation, a Minnesota corporation (Nasdaq Global Market: CPHC) (the “Company”), today announced that it has completed its previously announced reorganization of the Company’s business into a holding company structure (the “Reorganization”), pursuant to which a recently-formed Minnesota corporation with the same name, Canterbury Park Holding Company (“New Canterbury”), has replaced the Company as the publicly held corporation owned by the Company’s shareholders. At the market open today, July 1, 2016, the shares of common stock of New Canterbury will commence trading on the Nasdaq Global Market under the ticker symbol “CPHC,” the same ticker symbol previously used by the Company.

As a result of the Reorganization, the Company has been merged into a limited liability company subsidiary, Canterbury Park Entertainment LLC. In addition, the Company’s shareholders have automatically become shareholders of New Canterbury on a one-for-one basis, holding the same number of New Canterbury shares and the same ownership percentage after the Reorganization as they held immediately prior to the Reorganization. The business operations, directors and executive officers of the company will not change as a result of the Reorganization.

The exhibits list, though, provides: 

Exhibit No.
Description
2.1
Agreement and Plan of Merger, dated March 1, 2016, among Canterbury Park Holding Corporation, a Minnesota corporation, New Canterbury Park Holding Corporation, a Minnesota corporation, Canterbury Park Entertainment LLC, a Minnesota limited liability corporation. (Incorporated by reference to Exhibit 2.1 to the Registration Statement on Form S-4 (File No. 333-210877) filed with the SEC on April 22, 2016.)

A what?  You probably guessed it: a “Minnesota limited liability corporation.” No, it’s a limited liability company, as properly noted in the press release. 

Okay, so I suspect it’s not really material to the SEC or most other investors in the sense that this is a mistake, as long as the filing and exhibit are otherwise accurate. I looked at the May 27, 2016, DEF 14A, which did list the LLC correctly.  However, in searching that document I found this was part of the 14A:

GGCP Holdings is a Delaware limited liability corporation having its principal business office at 140 Greenwich Avenue, Greenwich, CT 06830.

Sigh.  Well, it may not matter to the SEC, but it’s material to me.  

 

As an adjunct to my posts (here and here) on law placement cover letters, I commend to you this blog post on networking letters, correspondence that seeks to establish a career or job-related connection–maybe even a longer-term relationship–rather than apply for a specific position.  Truth be told, in some form or another, four of the five tips in the post also apply to job-seeking cover letters.  The outlier?  Tip #2: “Don’t ask for an interview or a job.”

My take on the relevance of the other four tips for job placement cover letters is as follows:

  1. Respect your reader’s time.  Always a good idea when you are asking for anything.  Do not demand.  Ask graciously.  But also be careful not to fall over yourself in being respectful.  It’s just not attractive.  It’s usually sufficient to use a pair of sentences like these after making an “ask” to show your respect:  “I know that you have a busy schedule.  Accordingly, if this request is unduly burdensome, please just let me know.”
  2. Sell your strengths.  This is important and seems obvious.  But folks still miss this prompt!  Why would someone want to meet with a person they don’t know well or at all unless the person was interesting to them in some respect?  As readers may recall, I recommend using the PAR method in sharing professional and personal strengths–using a short, pointed narrative, rather than merely describing knowledge, experience, or skills with adjectives and adverbs.
  3. Consider the timing of your letter.  I just had a request from a student on this very issue–when to get back in touch with folks he had positive connections with last year who asked him to “stay in touch” about his permanent job search.  These questions (as to timing) are highly contextual and can be tough to navigate.  I recommend consulting with multiple people to get their views about particularly sticky timing questions.  For example, with respect to my student, the timing of/participation of the firms in on-campus interviews plays a role.  So, I recommended that he also consult with folks in our Career Services office.
  4. Stick to it.  The advice the blog post author (Miriam Salpeter) gives here is dead-on right.  Key sentence: “You don’t want to stalk the person, but it’s okay to touch base a few times before you consider the door closed.”  Again, I advise using advisors from various “walks” to help determine what crosses the line.  It’s very important to those consultations that the letter writer keep accurate and complete records of contacts with the proposed letter recipient and others in the same workplace that can be shared with the consultants so that they can best advise. 

As another interview season is on the horizon (although interviewing never seems to stop these days, does it?), some of this advice may come in handy for folks soon.  I also recommend in this regard, btw, Haskell Murray’s great post on resumes and interviews.  I cite to it in my initial cover letter post, but I want to note its value again here.

Thanks to Jim Levy for this post on the Legal Skills Prof Blog that alerted me to the networking letter piece.

You may have seen the news that Gretchen Carlson, a former Fox News anchor, is suing Roger Ailes, the Fox News Chair and CEO, for sexual harassment and retaliation.   One of the interesting things about the case is that – like a lot of people – Carlson has an arbitration clause in her contract requiring her to arbitrate all claims arising out of her employment

So how is she able to bring this case?

Well, Carlson is suing Ailes personally – not Fox News.  Her argument is that her arbitration agreement is with Fox News alone; Ailes is not a signatory to the agreement, and cannot benefit from it.

I first have to note that this argument is only available to Carlson at all because Ailes is wealthy, and (I assume) covered by insurance; most employees in similar situations don’t have the option of suing only their harasser (rather than their employer), because most individual harassers are likely to be judgment proof.

Beyond that, is Carlson right?  Is this a way around her arbitration agreement?

Well, according to Richard Frankel, there is a split of authority as to whether arbitration agreements to extend to agents of the signatories in their individual capacities, even when those agents were never parties to the agreement.  See Richard Frankel, The Arbitration Clause as Super Contract, 91 Wash. U. L. Rev. 531 (2014).  So there’s a real question as to whether Ailes has the right to enforce Carlson’s arbitration agreement, even though he was not a party to it.

Carlson’s attorneys are not giving up the fight so quickly, though.  They claim – with at least some support, see Arnold v. Arnold Corp., 920 F.2d 1269 (6th Cir. 1990) – that even when arbitration clauses extend to corporate agents, they only extend to actions taken by the agent in their capacity as agent; they do not cover actions taken by the agent on their own behalf.   In this case, Carlson’s attorneys apparently intend to claim that Ailes was not acting on Fox News’s behalf when he harassed Carlson, even though he may have been an agent of Fox for the purposes of retaliation.  Thus, the former claims need not be arbitrated, even if the latter claims must be.

Now, at least some courts have endorsed a concept of “concerted misconduct” that might preclude this kind of claim-splitting.  See Christopher Driskill, Note, A Dangerous Doctrine: The Case Against Using Concerted-Misconduct Estoppel to Compel Arbitration, 60 Ala. L. Rev. 443 (2009).   But more generally, I am concerned about the argument that employees are acting for their own gratification, and not on behalf of the employer, when they harass.  Courts have long been suspicious of respondeat superior in the context of harassment claims, suggesting (as Carlson apparently intends to argue) that harassment represents a personal frolic rather than a mechanism for maintaining institutional barriers to the advancement of underprivileged groups.  See Burlington Indus. v. Ellerth, 524 U.S. 742 (1998).  That means that a court could accept Carlson’s argument – particularly a court hostile to arbitration clauses – but perversely end up creating a lot of mischief for the many employees who rely on respondeat superior for any relief at all.

That said, there’s another aspect to this dispute that I find interesting.  According to the rumour mill, Roger Ailes has long been targeted for ouster by Rupert Murdoch’s sons.  If Fox News had been named as a defendant in Carlson’s suit, the company might have been forced to close ranks around Ailes.  But – ironically – because Fox News is not a defendant, the company appears to have the option of leaving Ailes twisting in the wind, and Murdoch’s sons in particular may use the lawsuit as an excuse to get rid of Ailes once and for all.