Short post today:  I spent Business Organizations today whining that Benefit Corporations dilute the business judgment rule for regular corporations.  I do this, in part, because I hate it, but I also do it because students can see (I think) how the concept of the business judgment rule works in practice. 

I left class to find that Coca-Cola is providing paid leave for new fathers, not just new mothers.  I fully support this, and think it is both wise and moral.  The report notes: 

Coke said one motivation is to help it recruit and retain millennials.

This makes total sense to me. And I think it good business.  But I still hope the reason to say this is that it is (in the Board’s judgment) good business, and not because the board thinks they otherwise need to justify such a decision. 

Institutional investors – often in response to some protest – occasionally choose to divest themselves of investment in industries that they believe are doing some social harm.

That move is a controversial one; many believe it is unlikely to have any impact on the industry, and thus the investors are only harming themselves by depriving themselves of potential profits.

And Marcia here at BLPB has argued that investors (like consumers) are rarely sufficiently committed to these causes – she doubts that “name and shame” policies, which are intended in part to encourage such moves, will have much of an effect in light of investors’ greater desire for return.

Well, here’s one new datapoint:  Calpers is revisiting its policy of refusing to invest in tobacco stocks.  Apparently, its moral commitments can’t quite hold up in the face of the industry’s rising share prices.  Calpers’s official position is apparently that it can do more good by “engaging” rather than by walking away, although when it comes to tobacco – a product that many criticize merely for its existence – it’s hard to see exactly how that happens.

Recently, I have been talking to a few of our law students about jobs, and I have also discussed job negotiations in my MBA negotiations course. 

Here are a few thoughts for law students negotiating their first job. First, take the time to sit and think about what you want in a job. I know this seems simple, but far too many students simply follow their classmates in chasing the most prestigious firms without fully understanding why; those firms may or may not be a good fit, depending on your goals. Talk to a number of people who have worked in jobs you are considering, and interview them about positives and negatives. Second, you have to understand your BATNA (your best alternative to a negotiated agreement). If you only have one offer, and thus no good alternatives to that job, you will be in a very weak negotiating position. As such, it is best to uncover a good, or at least decent, second option, even if it is a job outside law, before negotiating . Third, try to find out, from faculty members or recent graduates, what items may be negotiable at the organization. At larger firms and many government agencies, it seems that salary and benefits are almost always unmovable for entry level lawyers. That said, there are still some items – like practice group and start date – which might be negotiable. Start date can actually be really important. An early start date, if it is allowed (some organizations start all their first years at once), can give you a head start and more individualized senior associate/partner attention before the rest of the class arrives. At smaller firms, salary and benefits may be negotiable. Fourth, and perhaps more important, in all your discussions be respectful. You don’t want to get a reputation of being entitled before you even start with the firm, and again, you need to be realistic about your other options; this is still a buyers’ market. If you fortunate enough to have multiple good offers, you can, respectfully, ask for offer improvement, but if it is your only legitimate offer, asking may not be worth the risk of them pulling the offer. Fifth, once you are in the job, I would focus on making yourself valuable, to the senior associates, partners, and eventually the clients, so that you will be in a powerful negotiating position down the road.

For more general thoughts, watch Deepak Malholtra’s (Harvard Business School) talk on negotiating your job offer.

Five years ago I blogged about Massey Energy, one of most tragic mining disasters in US history. Just a few minutes ago its CEO Donald Blankenship was sentenced to the maximum one year in prison. The prison term is unusual for a corporate executive, but should it be?

The Department of Justice under Eric Holder came under fire for prosecuting thousands of low level mortgage brokers and analysts but no C-Suite individuals after the financial crisis. Perhaps in response to that, the DOJ released the Yates Memo, which I blogged about in September. There are already some interesting takeaways on the Memo, which you can read about here or you can hear about when I present if you attend the International Legal Ethics Conference in New York in July.  

I’m not sure whether the Yates memo will prevent corporate crime or get the “right” people to go to jail. Actually, I am pretty sure that it won’t. According to news reports, the Massey CEO was unusually involved in daily operations, which made convicting him easier (that along with hours of taped conversations). I do believe that the Yates Memo (if it’s even constitutional) will fundamentally change the relationship between attorneys, compliance officers, and their internal clients. I will blog more about that in coming months. In the meantime, I hope that today’s sentencing provides some measure of comfort to the families of the fallen miners.

I have heard the hype that April is financial literacy month, but I don’t know what that means other than it is a slogan and a headline.  It has a hashtag (#FLM2016), but no consensus definition other than merely understanding how money works.   PBS, the President, the National Council of Financial Educators, Wikipedi and even someone self-titled “RichDad” all weigh in on the definition. This is unhelpful even by law school standards where we teach vague definitions like reasonable and negligent.

A basic internet search also reveals that there aren’t widely adopted standards to demonstrate that a person has achieved financial literacy, and perhaps most strikingly there aren’t comprehensive, free resources from a government agency or reputable third parties (i.e., companies not selling credit management services) to assist interested folks in acquiring the requisite financial information.  There are resources available for children like this learning module hosted by the Federal Reserve Bank: Ella Saves!  These introductory materials serve the goal of educating the next generation of financial consumers against the perils of credit and the need for saving.  But what resources are available for the current generation of financial consumers– those faced with student debt, who had access to large home mortgage loans, who have access to multiple credit cards with large balances and high fees, who are likely tasked with not only saving but investing their savings for retirement through a defined contribution plan? There are a variety of individual tools, articles and books available but if you are a novice and don’t yet know what you need to know, this is both an overwhelming and an inefficient approach to acquiring the knowledge you need.  

For example, through further research I found the Institute for Financial Literacy, a 2002 501(c)(3) focusing on adult financial education. Thank you Financial Literacy!  They publish five standards (note that there is no consensus that these are the right benchmarks for financial literacy) and benchmarks, as well as provide some supporting materials for each one. A main resource they offer though is a listing of other state, federal and nonprofit websites where you can go and research what you don’t know.  Brilliant if you know where to start and what you need to find, unhelpful if not.

My frustration  stems from the belief/observation that this information matters; individual and national financial stability depend upon it.  Why is it so hard to know gauge whether or not I have it and what I need to do to gain it? 

-Anne Tucker

 

AP reported yesterday:

NEW ORLEANS (AP) — A federal judge in New Orleans granted final approval Monday to an estimated $20 billion settlement over the 2010 BP oil spill in the Gulf of Mexico, resolving years of litigation over the worst offshore spill in the nation’s history.

The settlement, first announced in July, includes $5.5 billion in civil Clean Water Act penalties and billions more to cover environmental damage and other claims by the five Gulf states and local governments. The money is to be paid out over roughly 16 years. The U.S. Justice Department has estimated that the settlement will cost the oil giant as much as $20.8 billion, the largest environmental settlement in U.S. history as well as the largest-ever civil settlement with a single entity.

The settlement with the government (private claims remain) reminds me of a post I made almost six years ago, where I argued that it was not the federal government’s job to avoid the harm of such an oil spill, and it was neither advisable nor reasonable to expect that the government could handle such an event.  I explained my thinking: 

Just imagine what would have happened six months [before the oil spill] if the President had suggested a new agency that would be trained and funded to clean up disasters like this, granted the authority to take over an oil well at the first sign of trouble, and this agency would be funded by a large tax on oil companies. You can be sure that the response would have been that the government shouldn’t be in this business because the oil companies are better trained, better prepared, and better able to respond to such problems. I guarantee it.

Yes, perhaps the federal government could have been swifter than it has been, especially with regard to protecting the coast. However, in this situation, President Obama’s primary mistake was likely listening to BP when they said they could, and would, handle the problem. I find it curious that many of the same people who often argue that government should stay out of the way of big businesses now want to lay blame at the feet of a president who did just that.

In this political era where candidates suggest that the government should be in business of building big walls (funded, and perhaps also built, by other governments) and free college tuition, I think it’s worth taking another close look at what we really should expect of government.  (For the record, of the two ideas proposed above, I hate the first idea, and I am skeptical of the second. I appreciate the sentiment behind the free college tuition idea, but highly question the wisdom or feasibility in practice, even if I would prefer that someone else pay my law school loans.) 

The reality is that, where we allow highly specialized industrial activity, we cannot ensure there will be no harm.  We can try create protections, and we can enact penalties for failures to follow the rules and remediate harm. This is not to say everything was done correctly leading up to the Deepwater Horizon spill.  There were significant regulatory failures to accompany BP’s failures. But when we look for solutions, we still need to be realistic about what role the government can and should take. About one thing I am confident: it is still not a good use of government funding to put a fleet of government-funded, oil-well plugging submarines at the ready. 

Imagine this: You open an email message late in the evening from a law review managing editor.  The message includes as an attachment the edited version of an article being published by the law review–or, more precisely–reprinted by the law review.  So far, so good.

But also imagine your surprise when you open the attachment and find that the edits are extensive–more extensive than you had expected.  So, you dig right in to see what’s amiss.  The first three modifications are changes to footnote citations.  They are incorrect edits.  As you review the edited draft, you find that most of the suggested changes are erroneous or unnecessary.  Some are even undesirable or undesired (e.g., edits to the text of quoted passages that deviate from the source quoted).  In frustration, you wonder whether you should complete your review of the edits or just, based on what you’ve read to date, throw in the towel and ask the law review to start all over, reminding the law review managing editor that the article already has been published and, in the process, edited by you and the other journal’s editors and staff.

I experienced a version of this law scholar nightmare recently. What did I do?  I completed my review of the edits (which took six solid hours) and sent the law review managing editor my responses under cover of an email message that explained (1) my likely-to-be-interpreted-as-curt tone and (2) the nature of the changes or reversals of changes I made.  I tried to educate through these materials.  But I was worried that the managing editor (with whom I had exchanged productive emails on other subjects, including the reprint permission and the publication agreement) might be angered by or otherwise negatively predisposed against my comments.

What happened next was absolutely super, however.  Later that day, I received a message from the managing editor reading as follows, in relevant part:

Hello Professor Heminway,

Thank you so much for such a detailed and quick response! I understand your concerns, and we will work through the comments and suggestions that you have made. . . .

Your explanations and feedback throughout this process have been both educational and humbling. I appreciate your attention to detail as well as your willingness to ensure that you thoroughly explain your basis of thought behind certain suggestions and concerns. There’s no doubt that your students have a lot to learn from you. Thank you for everything.

I was blown away.

I offer this correspondence and this entire story not to toot my own horn for having made the right decision to “stick it out” and offer explanations for my dissatisfaction with the draft that was returned to me by the law review.  Rather, having earlier vented here about the law review editorial process and read similar blog critiques written by others (like this one or this one), I want to offer, as Haskell recently did here, a net positive view of the law review editorial experience with a student-edited publication.  Bloggers here and elsewhere have made many suggestions on how the student editorial process may be able to be improved (see, e.g., here, here, and here).  In the mean time, however, I continue to believe that a bit of patience and good communication can extend the learning experience for student editors in meaningful ways.

A while back, I posted about a new split between the Second and Ninth Circuits regarding the ability of plaintiffs to bring a Section 10(b) action based on a failure to disclose required information, even in the absence of allegations that the omitted information rendered the remaining statements misleading.  The Second Circuit is for; the Ninth is against.

At the time, the split was not well-developed; the Second Circuit allowed for the possibility of such claims, but also held that the case before it failed to allege scienter.  And the last time the Second Circuit had allowed similar claims to go forward was in In re Scholastic Corp. Sec. Litig., 252 F.3d 63 (2d Cir. 2001). 

So it wasn’t clear whether the split would have much practical effect. 

Well, the Second Circuit now found a case where scienter was properly alleged – and it reversed a district court’s dismissal of the complaint.  The opinion is a veritable goldmine of interesting nuggets.

[More under the jump]

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