Two job announcements, early career and later stage:

Tulane University Law School invites applications from entry-level and early career lateral candidates (less than three years of tenure-track teaching experience) for one or more tenure-track faculty positions.  We welcome applications from candidates with teaching and research interests in all topics, but we are particularly interested in candidates who focus on maritime law and the first year curriculum: civil procedure, contracts, property, and torts. Please direct any questions about this position to Freddy Sourgens at fsourgen@tulane.edu. To learn more about the law school, visit our website at https://law.tulane.edu/. Interested applicants may apply at the following link: http://apply.interfolio.com/150799.

Tulane University is committed to creating a community and culture that foster a sense of belonging for all. We are a recognized employer and educator valuing AA/EEO, Protected Veterans, and Individuals with Disabilities. We encourage all qualified candidates to apply. We are intentionally seeking candidates who contribute to fostering equity, diversity, and inclusion in support of Tulane’s strategic initiatives.  

Also:

Tulane University Law School seeks to fill these faculty positions:

Houck Chair in Environmental Law (and Director of the Center for Environmental Law)
Niels F. Johnsen Chair in Maritime Law
David Boise Distinguished Chair in Law

Position Description:

Tulane University Law School invites nominations and applications for three Chairs in the following areas: Environmental Law; Maritime Law; and Public Law. We seek academic leaders with a record of distinguished scholarship, excellence in teaching, and the demonstrated capacity to direct well-established programs in their respective fields. The appointments will be made at the level of tenured, full professor.

The responsibilities of the chair holders include scholarly research and publication; classroom teaching; and participation in faculty governance. The chair holders are also expected to be actively engaged with faculty both within the Law School and throughout the University, providing leadership for integrative research activities and significant engagement with academic institutions and professional organizations in their respective fields. The chair holders are expected to provide leadership in terms of research, curriculum, and public engagement. Tulane Law School, with world-leading strength in environmental, energy, maritime, as well as international and comparative law, provides the chair holders the unique opportunity and support to lead and expand an already prominent program in these areas. Competitive salary commensurate with experience.

The qualifications required for the chair are:
• Juris Doctor (J.D.) and/or Ph.D. (or equivalent doctoral degree) in Law
• Broad recognition for scholarly distinction
• Established publication record
• Clearly developed long term research agenda
• Extensive teaching experience
• Demonstrated capacity for programmatic leadership

Application Instructions:

Interested candidates should apply through the Interfolio link. Please be prepared to submit your C.V., writing sample, teaching evaluations, and a transcript as part of your application.

All inquiries about the positions should be directed to:

Freddy Sourgens
James McCulloch Chair in Energy Law
Tulane University Law School
fsourgen@tulane.edu

Review of applications will begin in the fall and continue until completion.

Position URL: http://apply.interfolio.com/150805

 

The Southern Illinois University Simmons Law School is searching for three tenure-track professors to join us next fall. The successful candidates will teach doctrinal law courses. Current needs include Criminal Law, Criminal Procedure, Evidence, Business Courses, Contracts, Labor & Employment, Family Law, and Trust & Estates. Other courses are dependent on the needs of the institution and the candidate’s experience. 

See the position description for additional information.

THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW

Location: Columbus, OH

Subjects: Contracts, Intellectual Property, Business Law, Constitutional Law Start Date: August 15, 2025

The Ohio State University Moritz College of Law seeks to hire up to two entry-level or lateral candidates for positions in Private Law (especially contracts, intellectual property, and business law and complementary areas, including securities regulation, corporate finance, and tax) and Public Law (especially constitutional law and complementary areas).

The Ohio State University’s Shared Values include Excellence and Impact, Diversity and Innovation, Inclusion and Equity, Care and Compassion, and Integrity and Respect. Ouruniversity community welcomes differences, encourages open-minded exploration and courageous thinking, and upholds freedom of expression. We define diversity broadly andvalue multiple dimensions of diversity, including, but not limited to, demographic, religion, country of origin, perspective, ability status, and background.

Ohio State prides itself on welcoming a wide range of viewpoints and providing opportunities for all to deepen and develop their intellectual curiosities. As a land-grant university, werecognize and understand that a diverse faculty, staff, and student body in which all may engage in open dialogue, be exposed to new ideas and perspectives, belong, and feel valuedand included is essential to our efforts in meeting our mission of academic excellence and public service.

We invite applicants to share their demonstrated efforts in research, teaching, and/or outreach and engagement that reflect Ohio State’s Shared Values and that might further advance our mission and institutional excellence.

All qualified applicants will receive consideration for employment without regard to age, ancestry, color, disability, ethnicity, gender identity or expression, genetic information,HIV/AIDS status, military status, national origin, race, religion, sex, gender, sexual orientation, pregnancy, protected veteran status, or any other basis under the law.

Candidates should send their materials to Brenda Robinson, Program Coordinator, by email (Robinson.2311@osu.edu). For full consideration, candidates must also apply through Workday (reference number R110475).

 

Previously, I blogged about Mivtachem Insurance v. Furtarom, 54 F.4th 82 (2d Cir. 2022), where the Second Circuit held that false statements about a target company – most of which were included in the acquiring company’s S-4 – were not made “in connection with” sales of the acquirer’s securities, and therefore, purchasers of the acquirer’s stock did not have standing to bring Section 10(b) claims against target company officers.

Inevitably, the same thing came up in a pair of cases about SPACs, where purchasers in the publicly-traded SPAC entity wanted to bring claims based on pre-merger false statements about the target company.  A New York district court, following Frutarom, denied the claims; a California district court rejected the Second Circuit’s reasoning (and dismissed the claims on other grounds, namely, that at the time of the false statements it wasn’t clear that the target company really was going to be a target company).

Anyway, the California case, which involved the Lucid de-SPAC, was just appealed to the Ninth Circuit and the Ninth Circuit … followed the Second Circuit’s rule.  In Max Royal LLC v. Atieva, it held:

As noted above, Blue Chip limits standing to “purchasers or sellers of the stock in question.” 421 U.S. at 742.  Plaintiffs contend that the “stock in question” is “the security about which Plaintiffs allege injury,” and not necessarily a security of the company that made the alleged misrepresentations. Plaintiffs further contend that the “Blue Chip rule merely checks whether plaintiffs allege injury from the purchase or sale of a security” and that standing is determined based on “whether the security plaintiff purchased is sufficiently connected to the misstatement.” For several reasons, we conclude that Plaintiffs’ construction of standing is inconsistent with Blue Chip. …

Plaintiffs ignore the plain language of Blue Chip and assert that Section 10(b) standing extends to any stockowner who claims that the misstatements of another person or company negatively affected the value of the owner’s stock. Under Plaintiffs’ desired formulation of the standard, hypothetical plaintiffs would need only to have purchased a security—any security—to satisfy the purchaser-seller requirement. But Plaintiffs’ interpretation of the securities laws would vastly expand the boundaries of Section 10(b) standing and contradict the express limiting purpose of the Birnbaum Rule. The Supreme Court has cautioned that Section 10(b) does not “provide a cause of action to the world at large,” and “should not be interpreted to provide a private cause of action against the entire marketplace in which the issuing company operates.” Stoneridge, 552 U.S. at 162 (cleaned up) (quoting Blue Chip, 421 U.S. at 733 n.5)….

We agree with the Second Circuit’s reasoning in Menora and likewise reject Plaintiffs’ “sufficiently connected” test. The Supreme Court adopted a bright-line rule for standing—even at the risk of it being “arbitrary” in some cases—to avoid the type of “endless case-by-case” analysis contemplated by Plaintiffs….

It is undisputed that the securities about which Defendants allegedly made misrepresentations were those of Lucid. Under the Birnbaum Rule, Plaintiffs would need to have purchased or sold Lucid stock to have standing to bring this action under Section 10(b). Here, Plaintiffs did not purchase or sell Lucid stock, as Lucid was a privately held company during the relevant period. Plaintiffs purchased CCIV stock, but their complaint does not allege that anyone made misrepresentations about CCIV stock. Because Plaintiffs did not purchase or sell the securities about which the alleged misrepresentations were made, Plaintiffs lack standing under Section 10(b).

That CCIV later acquired Lucid does not change our analysis.

One interesting point about the Ninth Circuit’s reasoning is that the court added, “If Congress wants to treat SPAC acquisitions differently than traditional mergers, it has the authority to do so.”

Except the SEC, anyway, did do so – inapplicable to this transaction, but applicable to transactions going forward, the SEC adopted new rules requiring target company officers to sign the registration statement issued in connection with the de-SPAC transaction.  And in the adopting release, it said:

Given that the target company therefore is, in substance, an “issuer” of securities in a de-SPAC transaction regardless of transaction structure, the Commission proposed to amend Instruction 1 to the signatures section of both Form S-4 and Form F-4 to require that, when the SPAC would be the issuer filing the registration statement for a de-SPAC transaction, the term “registrant” would mean not only the SPAC but also the target company….

As discussed in more detail below, it is our view that in a de-SPAC transaction the target company is an issuer of securities under section 2(a)(4) of the Securities Act, and, therefore, the target company along with its required officers and directors must sign a registration statement filed by a SPAC or another shell company for the de-SPAC transaction, because both in substance and by operation of new Securities Act Rule 145a, the target company is issuing or proposing to issue securities in a de-SPAC transaction, regardless of the transaction structure….

Now, the SEC was explicitly contemplating Section 11 liability, not 10(b) liability, and it therefore was talking about the S-4 rather than statements made outside the securities filings, but that might be the kind of thing that … informs … a court’s analysis, no?

I also wonder how this reasoning impacts SEC v. Panuwat, i.e., the “shadow” insider trading case, which I previously blogged about here.  That case also involved information about one company being used to trade in the securities of another company – and after trial, a jury found the trader liable.  I assume Panuwat will cite Max Royal on appeal, though I suppose the Ninth Circuit might limit its holding to private Section 10(b) actions.

Anyway, here’s Marc Steinberg and Antonio R. Partida criticizing Frutarom. 

Wendy Gerwick Couture has posted a thoughtful article entitled, Nevadaware Divergence in Corporate Law.  It’s available here.  She presents some new perspectives on Nevada corporate law and emphasizes that Nevada has adopted a different policy balance than Delaware. She does this through three thorough sections analyzing exculpation, appraisal, and freeze-out mergers under both Nevada and Delaware law.  

This detailed focus gives some real insights.  She recognizes that many of the claims about Nevada exculpating for breaches of the duty of loyalty are overstated.  Nevada exculpates for breach of fiduciary duty under a single standard.  To the extent that any breach of the duty of loyalty involves any intentional misconduct, it would not be exculpated under Nevada law. It’s a much narrower category–unintentional breaches of the duty of loyalty–that may be exculpated under Nevada law.

She also recognizes that burden of proof differences in exculpation may shift outcomes.  Delaware places the burden of proof on a party seeking exculpation.  Nevada places the burden of proof on the party aiming to impose monetary liability.  This difference undoubtedly shifts litigation costs for many disputes.

If you’re interested in TripAdvisor case or other comparative corporate law issues, her work helps bring real light to these issues.  Ultimately, I agree with her that Nevada has struck a different balance than Delaware to prioritize avoiding the negative effects of litigation over maximizing deterrence and ensuring compensation for all possible wrongs.  Depending on what the Delaware Supreme Court does in the TripAdvisor case, I expect that Delaware and other courts might soon look to her work here to help understand Nevada law.

Cornell Law Review will be hosting its 2024 symposium, Mass Torts Inferno: New Battle Lines in the Resolution Debate, on September 20, 2024 in Ithaca, New York. Modern mass torts involve hundreds of thousands of victims affected by various types of tortious conduct ranging from sexual abuse and asbestos exposure to opioid trafficking. This symposium brings together diverse scholars to address the new, non-class aggregate litigation strategy that is reshaping the field. It also seeks to create a dialogue among scholars and practitioners of tort law, bankruptcy law, civil procedure, and constitutional law. The law review is proud to partner with Andrew Bradt, Sergio Campos, Zachary Clopton, Alexandra Lahav, and Samir Parikh to present this event.  

For those interested in attending, please contact Griffin Perrault at gp344@cornell.edu.

CornellPoster2024

Mississippi College School of Law invites applications from entry-level candidates for multiple tenure-track faculty positions expected to begin in July 2025. Our search will focus primarily on candidates with an interest in teaching one or more of the following subject areas: Real Property, Intellectual Property, Sports/Entertainment Law, and Cyber Law/Law & Technology.

We seek candidates with a distinguished academic background (having earned a J.D. and/or Ph.D.), a commitment to excellence in teaching, and a demonstrated commitment to scholarly research and publication. We particularly encourage applications from candidates who will enrich the diversity of our faculty. We will consider candidates listed in the AALS-distributed FAR, as well as those who apply directly.

Applications should include a cover letter, curriculum vitae, a scholarly research agenda, the names and contact information of three references, and teaching evaluations (if available). Applications should submitted using the following link: https://www.mc.edu/offices/human-resources/employment?rID[32]=389.

I am please to be able to publish this post authored by our former BLPB editor/co-blogger Stefan Padfield.  We miss his voice here, but he is doing good work in his current role, as this post shows!  Thanks for contributing this, Stefan.

+++++

On November 14, 2023, the National Center for Public Policy Research (NCPPR) – where I work – submitted a shareholder proposal to Johnson & Johnson that sought disclosures related to overboarding. (For the uninitiated, overboarding refers to the issue of corporate directors sitting on too many boards but can also be extended, as it is here, to other commitments.) On March 1, 2024, the SEC staff informed J&J that no action would be recommended against the company by the staff if J&J excluded NCPPR’s proposal. This no-action relief arguably represents a change in the long-standing SEC practice of supporting proposals related to overboarding and is thus worthy of further examination. (The underlying documents can be accessed here; the SEC staff also granted no-action relief to Verizon and Lowe’s on the same proposal.)

By way of background, the SEC staff is on record as saying that an overboarding proposal “relates to director qualifications.” Accordingly, the SEC staff has stated in the past that it does “not believe that [a company] may omit [such a] proposal from its proxy materials in reliance on rule 14a-8(i)(7)” as improperly relating to the ordinary business of the company.

Admittedly, our proposal was unique in that it asked directors to “disclose their expected allocation of hours among all formal commitments set forth in the director’s official bio, with allocation being permissible “on a weekly, monthly, or annual basis.” And perhaps this is sufficient for some to categorize our proposal as excludable micromanagement, as the SEC staff did. However, there is a good argument to be made that “the SEC has incorrectly applied the micromanagement rule to exclude disclosure proposals.” More generally, the active shareholder proponent just quoted also noted in the same piece the SEC’s heavy and arguably excessive reliance on the micromanagement exclusion this season:

In reality, the most significant substantive development in the Rule 14a-8 process in the last two seasons has been largely ignored in the anti-shareholder furor. Far from representing a system unfairly tilted toward proponents, the SEC is more readily concurring with issuers’ increasingly aggressive use of the micromanagement exclusion…. According to preliminary calculations by the Shareholder Rights Group, in 2023, micromanagement arguments accounted for 8 out of 27, or 30%, of successful Rule 14a-8(i)(7) requests. In 2024 so far, micromanagement arguments have accounted for 25 of 56, or 44.6%, of winning requests based on the ordinary business/micromanagement rule.

Regardless, in addition to prior no-action decisions that deemed overboarding proposals nonexcludable, we later submitted a similar proposal to Verizon and added the following stakeholder perspectives to urge the SEC staff to reconsider its conclusion in Johnson & Johnson:

  • Weil, Gotshal & Manges LLP: “The board should assess whether directors that may be overcommitted have sufficient time and ability to take on the significant tasks relating to public company directorship.” (Emphasis added.)
  • Wachtell, Lipton, Rosen & Katz: “As board responsibilities grow, so has the focus on director bandwidth; directors should be realistic about their bandwidth when considering new opportunities for board service.”
  • Vanguard: “The role of public company directors is complex and time-consuming, and the funds believe that directors should maintain sufficient capacity to effectively carry out their responsibilities to shareholders. For this reason, the funds look for directors to appropriately limit their board and other commitments to ensure that they are accessible and responsive to both routine and unexpected board matters …. The funds look for boards to have in place policies regarding director commitments and capacity and to disclose such policies (and any potential exceptions) to shareholders ….” (Emphasis added.)
  • The Conference Board: “[W]hile adopting an overboarding policy can be useful, it is more important for boards to have candid conversations about their evolving time requirements and the ability of directors to devote the time necessary to the role…. In light of expanding workloads, boards should take a fresh look at the time commitments expected of directors …. Overboarding policies are now a predominant practice, embraced by three-quarters of the S&P 500 and over half the Russell 3000 and supported by the proxy advisory firms. But policies alone are insufficient. As part of the annual evaluation process, directors should assess their ability, both on an individual and collective level, to dedicate the necessary time to fulfill their responsibilities effectively and make informed decisions.” (Emphasis added.)
  • State Street: “[I]n its Summary of Material Changes to State Street Global Advisors’ 2023 Proxy Voting and Engagement Guidelines, State Street[i] indicates that starting in 2024 for companies in the S&P 500, it will no longer use numerical limits to identify overcommitted directors and instead ‘require that companies themselves address this issue in their internal policy on director time commitments and that the policy be publicly disclosed.’” (Emphasis added.)

Furthermore, the need for the requested disclosure can be demonstrated by looking at the bio of a director at CVS, where our proposal was unopposed: J. Scott Kirby. Doing so reveals the following nine commitments.

  1. Director, CVS
  2. CEO, United Airlines
  3. Director, United Airlines
  4. Executive Committee, United Airlines Board
  5. Finance Committee, United Airlines Board
  6. Director, SONIFI Solutions
  7. Chairman, Star Alliance Chief Executive Board
  8. Member, Board of Governors of the International Air Transport Association
  9. Director, U.S. Air Force Academy Foundation

Suffice it to say, many would presume that Mr. Kirby would more than have his hands full simply as CEO of United Airlines. Accordingly, it seems a small thing for CVS shareholders to ask for an estimate of how exactly there will be enough hours in the day for Mr. Kirby to juggle these nine commitments without depriving CVS of the critical attention he is being nominated to provide as director. And to the extent some might argue that listing committee assignments as discrete commitments improperly inflates the perceived workload, we say: (1) either the discrete commitment is material or the disclosure of that commitment in the official bio is misleading; (2) a company is free to attribute zero hours to any disclosed commitment, and is thereby free to clarify for shareholders that, for example, membership on the finance committee is a nominal position.

Given the ever-increasing responsibilities of corporate directors, as well as generally increasing demands on their time, limiting oversight of overboarding to counting board seats and CEO spots is unsustainable. Accordingly, we will likely be submitting a similar proposal next season and urging the SEC staff to reconsider its conclusion in Johnson & Johnson. Asking prospective directors how they intend to allocate their hours among their often numerous commitments should not be viewed as improper micromanagement but rather basic accountability fully within the ambit of shareholders to request.

_____

[i] Our overboarding proposal at CVS was apparently defeated by a vote of 97% against. In light of the comments here by State Street and the preceding comments by Vanguard, it would be interesting to see how those asset managers voted (assuming they hold shares in CVS).

ST. JOHN’S UNIVERSITY SCHOOL OF LAW seeks entry-level and lateral candidates to join our dynamic faculty. We are deeply committed to equity, inclusion, and anti-racism, and are particularly interested in candidates who will enrich the diversity of our faculty. We are open to a variety of teaching and scholarly interests including Business and Transactional Law, Constitutional Law, Dispute Resolution, Environmental Law, Race and the Law, and Technology and the Law and have a special interest in Trusts and Estates.

St. John’s Law School is located in New York City in the borough of Queens, one of the most diverse urban communities in the United States. We are part of St. John’s University, a Catholic, Vincentian, metropolitan, and global institution with campuses in New York, Rome, and Paris. The Law School and University are committed to academic excellence and to providing an education for all people, especially those lacking economic, physical, or social advantages.  Many St. John’s Law students are the first in their families to attend law school; many are the first in their families to attend college. By providing our graduates with the skills and values to successfully participate in a global legal profession, the Law School serves as an engine of social mobility and fulfills the University’s broader Vincentian mission to aid those in need.

Celebrating its 100th anniversary in 2025, St. John’s Law School is proud of its vibrant student body, high bar passage and employment rates, and influential legal scholarship. Faculty publish critically-acclaimed books with academic and trade presses and place articles in prestigious journals. They also extend their scholarly reach by writing regularly for mainstream audiences and engaging in extensive law reform efforts at the state, federal, and international levels. Finally, St. John’s Law boasts a close-knit and supportive community among faculty, students, alumni, and staff.

Under the leadership of our new dean, Jelani Jefferson Exum, we look forward to a future that builds upon the school’s strong foundations and moves St. John’s Law into its next century of mission-focused impact and prominence.

Below are some links about St. John’s and our surrounding communities –

www.stjohns.edu/who-we-are/history-and-facts

www.nycgovparks.org/highlights/visit-queens

In compliance with New York City’s Pay Transparency Act, the annual hire-on rate for entry-level assistant professors is $140,000 – $150,000, plus additional compensation in the form of summer research stipends and supplemental publication awards.  Compensation for lateral candidates coming from faculty positions at other law schools is commensurate with the candidate’s experience. St. John’s considers factors such as (but not limited to) scope and responsibilities of the position, candidate’s work experience, education/training, key skills, and internal peer equity, as well as market and organizational considerations.

Entry-level and tenure-track candidates should have demonstrated potential for high scholarly achievement, teaching excellence, service, and a record of contributing to supportive and inclusive communities.

We will consider candidates listed in the AALS FAR, as well as those who apply directly. Applications should include a cover letter, curriculum vitae, writing sample, a research agenda, the names of three references, and teaching evaluations (if available). Please send these materials in a single PDF to Claire Pollicino, Director of Special Projects, at lawfac@stjohns.edu. Inquiries (but not application materials) may also be directed to Professor Elaine M. Chiu, Chair, Faculty Appointments Committee at chiue1@stjohns.edu.

St. John’s University is an Equal Opportunity Employer that does not discriminate on the basis of race, color, national or ethnic origin, sex (including sexual harassment and sexual violence), sexual orientation, gender identity and gender expression, disability, religion, age, status in the uniformed services of the United States (including veteran status), marital status, status as a victim of domestic violence, citizenship status, genetic predisposition, carrier status, or any other classification protected under federal, state, or local law.

Dear BLPB Readers:

“SOUTHWESTERN LAW SCHOOL in Los Angeles invites applications for the following positions:

• Multiple full-time entry-level and lateral tenure/tenure-track positions. Our primary curricular needs include Business Associations, Evidence, and Property. When selecting candidates to interview, we also will consider whether they might also contribute in the following areas: Administrative Law, Contracts, Copyright, Business/Corporate/Entrepreneurship electives; Cyberlaw/Technology/Privacy, Entertainment Law, Family Law, International Business Transactions, Professional Responsibility, and Wills & Trusts.

•  Multiple full-time entry-level or experienced Associate Professors of Academic Success and Bar Preparation

•  Multiple full-time entry-level or experienced Associate Professors or Professors of Legal Analysis, Writing, and Skills.

Attached are the ads for each position.

Founded in 1911, Southwestern is an ABA-accredited, independent law school located in the center of Los Angeles. Our mission includes educating lawyers ready to serve clients, the profession, and our society with excellence, empowering students to reach their potential, cultivating inclusion and belonging, and shaping the law and public policy through teaching, scholarship, and service.

To apply, please send your CV, professional references, research agenda, and preferred areas of teaching via email to academicadmin@swlaw.edu and put “Faculty Application” in the email subject line. Review of applications will begin in mid-August. Initial interviews will be held via Zoom, and callback interviews will be held in person.”

Ads for each position are below:

Doctrinal (Tenure-track) Faculty position: Download Doctrinal (Tenure-Track) Faculty Position Ad (1)

Legal Writing (LAWS) Faculty position: Download Legal Writing (LAWS) Faculty Position Ad

Academic Success and Bar Programs Faculty position: Download Academic Success and Bar Programs Faculty Position Ad