. . . are you sure I qualify?

From a spam email I recently received:

Dear Steve,

On behalf of The International Women’s Leadership Association, it is my distinct pleasure to notify you that, in consideration of your contribution to family career, and community, you have been selected as a woman of outstanding leadership.

I had the honor of being invited to speak at the annual symposium for the Wayne Law Review two weeks ago.  The event, which focused on Corporate Counsel as Gatekeepers, was well organized and attended–and also very stimulating.  Speakers included Tony West as a keynote, a few of us academics, and a bunch of current and former practitioners–prosecutors, in-house counsel, and outside counsel.

My presentation focused on a story that bugs me–a story built on an experience I had in practice.  In the story (which modifies the true facts), an executive flagrantly violates a securities trading compliance plan that I drafted in connection with a subsequent transaction that I worked on for the executive’s firm.  Specifically, the executive informs a friend about the transaction the day before it is announced, believing that the friend will never trade on the information.  The friend trades.  The incident results in a stock exchange and Securities and Exchange Commission (SEC) inquiries.  No enforcement is undertaken against the firm.  However, the executive signs a consent decree with–and pays a cash penalty to–the SEC and, together with the firm, suffers public humiliation via a front-page article in the local newspaper (since the SEC would not agree to forego a press release).  This fact pattern gnaws at me because I wonder whether there is anything more legal counsel can do to prevent an executive from violating a compliance policy to the detriment of himself and the firm . . . .

Continue Reading Preventing Client Executives from Violating Compliance Policies and the Law

Earlier this month BLPB editor Ann Lipton wrote about the Delaware Supreme Court opinion in Sanchez regarding director independence (Delaware Supreme Court Discovers the Powers of Friendship).  On the same day as the Del. Sup. Ct. decided Sanchez, it affirmed the dismissal of KKR Financial Holdings shareholders’ challenge to directors’ approval of a buyout.  The transaction was a stock-for-stock merger between KKR & Co. L.P. (“KKR”) and KKR Financial Holdings LLC (“Financial Holdings”). Plaintiffs alleged that the entire fairness standard should apply because KKR was a controlling parent in Financial Holdings.  The controlling parent argument hinged on the facts that:

Financial Holdings’s primary business was financing KKR’s leveraged buyout activities, and instead of having employees manage the company’s day-to-day operations, Financial Holdings was managed by KKR Financial Advisors, an affiliate of KKR, under a contractual management agreement that could only be terminated by Financial Holdings if it paid a termination fee.

Chief Justice Strine, writing an en banc opinion for the Court,  upheld Chancellor Bouchard’s finding that KKR could not be considered a controlling parent where “KKR owned less than 1% of Financial Holdings’s stock, had no right to appoint any directors, and had no contractual right to veto any board action.”

The Delaware Supreme Court upheld the familiar standard of effective control, absent a majority, which focuses on “a combination of potent voting power and management control such that the stockholder could be deemed to have effective control of the board without actually owning a majority of stock.”

Chancellor Bouchard had noted that plaintiff’s complaint stemmed from dissatisfaction at the contractual relationship between KKR and Financial Holdings which limited the growth of Financial holdings.  Chancellor Bouchard wrote:

At bottom, plaintiffs ask the Court to impose fiduciary obligations on a relatively nominal stockholder, not because of any coercive power that stockholder could wield over the board’s ability to independently decide whether or not to approve the merger, but because of pre-existing contractual obligations with that stockholder that constrain the business or strategic options available to the corporation.

 

 

Sometimes a “nothing new” case provides a good reminder of an established standard and provides clear language for recapping the concept to students.  This will become a note case on “effective” control in my ChartaCourse corporations casebook and also a good illustration of the role of private agreements in shaping how legal standards are applied.  

You can read the opinion at: Corwin et al. v. KKR Fin. Holdings et al., No. 629, 2014, 2015 WL 5772262 (Del. Oct. 2, 2015). 

-Anne Tucker

 

So, my rants about the problem of courts (and others) conflating LLCs and corporations are not new.  Unfortunately for the proper evolution of the law, but good fodder for my posts, I continue to get examples.  We now have a new one that raises the bar a bit.

 A recent case from the United States District Court for the Western District of Pennsylvania continues the trend. The beauty, if one can call it that, of the case is that there are failures to recognize the difference between LLCs and corporations at multiple levels. 

 First, though, let’s recap what LLCs are.  LLCs are limited liability companies, and they are creatures of statute. See, e.g., 6 Del. C. § 18-101, et seq.  As such, they are not corporations, which are creatures of other statutes. Cf., e.g., 8 Del. Code § 101, et. seq. In contrast, LLCs, like corporations and other associations, can be people.  See, e.g.,  Dictionary Act, 1 U.S. Code § 1 (“[The wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”).

Back to our newest example, which I think of as a strikeout. The case was filed by the Pennsylvania General Energy Company, LLC, (PGE), which challenged the “constitutionality, validity and enforceability of an ordinance adopted by Grant Township that established a so-called Community Bill of Rights.” Penn. Gen. Energy Co., LLC, v. Grant Township, C.A. No. 14-209ERIE, at 1 (Oct. 14, 2015, W. Dist. Pa.), available here.   As Judge Baxter explains, “The Ordinance lays out the framers’ beliefs that corporations should not have more rights than the people of its community and that the people have the right to regulate all activities pursuant to a right of local self government.” Id. at 2-3.    

The framers are our first group that does not appear to know that corporations are not the same as LLCs.  Strike one.  Here’s the ordinance (emphasis added): 

Section 3 – Statements of Law -Prohibitions Necessary to Secure the Bill of Rights

(a) It shall be unlawful within Grant Township for any corporation or government to engage in the depositing of waste from oil and gas extraction. 

(b) No permit, license, privilege, charter, or other authority issued by any state or federal entity which would violate the prohibitions of this Ordinance or any rights secured by this Ordinance, the Pennsylvania Constitution, the United States Constitution, or other laws, shall be deemed valid within Grant Township. 

So, unless the city has some definition or the other basis to say that an LLC is a corporation (which I did not see), this Bill of Rights does not apply to LLCs, partnerships, or other unincorporated entities.   

As such, the plaintiff’s first argument, I think, should have been that the statute does not cover us as an LLC at all.  The complaint (here) shows only an argument that LLCs are people  — the argument that PGE was not a corporation was not made.  In fact, the complaint says LLCs are corporations. “The Community Bill of Rights Ordinance purports to strip corporations, such as PGE, of their status as natural persons and declares that corporations do not possess any other legal rights, privileges, power, or protections.” Complaint ¶ 99.  Strike two.  

Finally, Judge Baxter, in what is mostly a reasonable opinion, skips right to equating LLCs and corporations, too. She explains, 

Defendant provides no precedential statute or constitutional provision authorizing its action other than its assertion that Plaintiff has no rights — from contracting to do business in Grant Township to bringing a lawsuit to complain about an ordinance — because it is not a person. This view is contrary to over one hundred years of Supreme Court precedent that establishes that corporations are considered “persons” under the United States Constitution.

Id. at 7-8. An arguably true statement of the law that is wholly irrelevant because plaintiff is not a corporation.  Plaintiff is an LLC, and the this is not transitive. That is, just because both LLCs and corporations can be persons, it does not mean that, therefore, LLCs are corporations.  Strike three.  

All in all, if the Grant Township ordinance has included all entities (or limited the options only to natural persons), then most, if not all, of Judge Baxter’s opinion would be correct.  As it is, it’s just wrong. Absent some other analysis, the ordinance at issue did not apply to the plaintiff at all. I, for one, hope Judge Baxter amends the opinion or the case is appealed so that the court can get it right.  The language here could set a terrible precedent. 

Who am I kidding? It just continues the long line of other terrible precedent. But it should still be fixed.

This hit my mailbox this morning.  If the report is correct, we’ll know in a few days whether we have a path to unregistered, broad-based securities crowdfunding in the United States.  More as news is reported . . . .

[Additional information:  Based on the link to the SEC’s notice of meeting in Steve Bradford’s comment to this post, it also appears that the SEC is considering amendments to Rules 147 (intrastate offerings) and 504 (limited offerings under Regulation D of up to $1,000,000).]

I recently spoke at a crowdfunding conference in Germany. One of the professors there made a comment about entrepreneurship in Germany that I thought was interesting.

He indicated that small business entrepreneurs in Germany avoid hiring any employees for as long as possible, to avoid all of the (expensive) rights given to employees under German law.

Another example of the possible unintended consequences of regulation. Regulations intended to protect employees actually keep them from being hired.

The title of my talk at the conference was Regulating Investment Crowdfunding: Small Business Capital Formation and Investor Protection. I discussed how crowdfunding should be regulated, using the U.S. and German regulations as examples. The talk will eventually be posted online; I’ll supply a link when it’s available.

The Second Circuit decision in the Newman case has provoked much discussion of the Supreme Court’s opinion in Dirks and how to interpret the requirements it lays out for tippee liability. But it’s important to remember that Dirks was not writing on a clean slate. This year is the 35th anniversary of the case that preceded Dirks and laid the foundation for the Supreme Court’s insider-trading jurisprudence, Chiarella v. United States.

I realize that this was not the Supreme Court’s first look at insider trading. That honor, arguably, goes to Strong v. Repide, 213 U.S. 419 (1909). But Chiarella was the court’s first discussion of insider trading under Rule 10b-5.

The facts of the Chiarella case are relatively simple. Vincent Chiarella, the defendant in the case, was an employee of Pandick Press, a financial printer. His company was hired to print announcements of takeover bids. Although the identities of the target corporations were concealed in the announcements, Chiarella was able to figure out who they were. He bought stock in the target companies and made a profit of roughly $30,000. He was convicted of a criminal violation of Rule 10b-5, but the Supreme Court overturned his conviction.

It’s important to remember the basic problem Chiarella had to deal with (or perhaps it’s fairer to say the problem as the Chiarella majority constructed it). Rule 10b-5 prohibits securities fraud. People engaged in insider trading don’t usually make false statements and, under the common law, mere silence is not usually fraud. Because of that, the majority in Chiarella rejected the notion that a mere failure to disclose nonpublic information prior to trading violates Rule 10b-5. There’s no fraud.

However, the majority pointed out that a failure to disclose can be fraudulent when the non-disclosing party has a duty to disclose to the other person “because of a fiduciary or other similar relation of trust and confidence between them.” That fiduciary duty, the majority indicated in dictum, does exist in the case of corporate insiders. But Vincent Chiarella was not an insider of the corporations whose stock he traded. Since the government had not otherwise shown that Chiarella violated a fiduciary duty by not disclosing to anyone, he was not liable under Rule 10b-5.

That’s the essence of Chiarella: nondisclosure violates Rule 10b-5 only if there’s a fiduciary duty to disclose. No fiduciary duty, no liability.

Everything that followed—Dirks; O’Hagan; the Second Circuit’s decision in Newman; even the SEC’s Rule 10b5-2—depends on Chiarella. How different things would have been if Justice Blackmun’s dissent had carried a majority. His view was that “persons having access to confidential material information that is not legally available to others” could not trade without liability under Rule 10b-5.

The ultimate irony of Chiarella is that, if the case were tried today, Vincent Chiarella would without a doubt be liable under Rule 10b-5. The Supreme Court’s subsequent decision in United States v. O’Hagan, 521 U.S. 642 (1997) makes it crystal clear that one can be liable for trading on the basis of nonpublic information obtained from one’s employer or client. But the majority in Chiarella refused, on procedural grounds, to reach that question.

On the one hand:

Tech Startups Feel an IPO Chill

Dropbox Inc. had no trouble boosting its valuation to $10 billion from $4 billion early last year, turning the online storage provider’s chief executive into one of Silicon Valley’s newest paper billionaires.

But the euphoria has begun to fade. Investment bankers caution that the San Francisco company might be unable to go public at $10 billion, much less deliver a big pop to recent investors and employees who hoped to strike it rich, according to people familiar with the matter.

BlackRock Inc., which led the $350 million deal that more than doubled Dropbox’s valuation, has cut its estimate of the company’s per-share value by 24%, securities filings show.

Dropbox responds that it is continuing to increase its business, added 500 employees in the past year, including senior executives, and has no need for additional capital from private or public investors.

Still, the company is a portent of wider trouble for startups that found it easy to attract money at sky’s-the-limit valuations in the continuing technology boom.  The market for initial public offerings has turned chilly and inhospitable, largely because technology companies have sought valuations above what public investors are willing to pay….

Many U.S. based companies that went public this year have seen their stock prices suffer, posting a median return of zero compared with their IPO price…..

Since going public in December, online-lending marketplace LendingClub Corp., located 10 blocks from Zenefits in the trendy SoMa district of San Francisco, has seen its valuation shrink from $8.5 billion after its first day of trading to $5.4 billion. The share price has fallen amid concern that competition and regulation threaten LendingClub’s business model of matching borrowers with lenders.

New York City firefighter Brian Gitman bought 250 shares of LendingClub during the IPO and held on to them as the price slid. He regrets it.

Knowing that big-name investors put money into LendingClub when it was private gave Mr. Gitman, 33 years old, a false sense of security, he says. “It feels like that should be like the bumper in bowling,” he says.

meanwhile, in entirely unrelated news:

J.P. Morgan, Motif to Give the Little Guy a Taste of the IPO

A new effort is under way to put the public back in the initial public offering.

J.P. Morgan Chase & Co. and Motif Investing Inc., an online brokerage, are joining in a program to allow individuals to invest as little as $250 in IPOs.

It is the latest of several efforts by banks and brokerage firms—including startup online broker Loyal 3 Holdings Inc., Fidelity Investments andMorgan Stanley—to make the IPO market more accessible to the smallest investors, who can find it almost impossible to buy into new stock offerings.

Since late 2013, at least 17 companies, including four billion-dollar-valued startups, have offered small portions of their IPOs to the public or customers through new online platforms. And more deals of this kind are in the works.

 

This week I thanked the law review editors at the West Virginia Law Review for their hard work on my forthcoming article. They seemed truly grateful for the thanks, which was well deserved, and it made me think that I should thank law review editors more often.

Law review editors put in a tremendous amount of time working on our articles, often well after-hours given all of their other commitments. Even when the process is frustrating, I think we need to be thankful and professional. Also, given that I have had a few rough editing experiences, I now state my preferences up front, which (at least this time) led to better results. 

Somewhat related, over at PrawfsBlawg, Andrew Chongseh Kim has a couple posts on the law review process: one on exploding offers and one on peer review of law review articles.

Personally, I don’t have a problem with exploding offers, and I actually think more law reviews should use them. The submission game incentivizes submission to many journals and trading up multiple times. This process wastes an incredible amount of student editor time and they have every right to effectively shut down the expedite process.

As I have mentioned before, the exclusive submission window is an elegant solution to the expedite problem. Under this strategy, the law review promises a prompt decision and the professor promises to accept the offer if made. The only downside to the exclusive submission window is that the professor usually cannot shop the article during that window, so it slows the submission process. 

Maybe the solution is to allow multiple submissions, but prevent professors from trading-up. If that were the rule, professors would be incentivized to submit only to journals where they would be happy to publish and the process would be faster.

Finally, I can’t have a post about law reviews without asking, again, why more law reviews have not moved to blind review. I cannot think of a good reason, but am I missing something?