A lawyer representing Fordham Law School Professor (and Riverbed Technology shareholder) Sean Griffith argued in Delaware court that a class action settlement related to Riverbed Technology’s  $3.6 billion sale to private equity firm Thoma Bravo was bad for shareholders and good for the lawyers involved, Reuters reports.  

Prof. Griffith told Reuters that “he has been buying stock of companies that have announced merger deals and intends to object to settlements if he feels the litigation is not serving stockholders.” He asserts that the shareholders’ attorneys “are in cahoots” to reach a settlement, without regard to value.  

This raises some interesting questions of law and policy with regard to the Professor’s role here.  As a shareholder, Griffith has the right to object (assuming his time of ownership satisfies the applicable statute).  But how should a court assess the objection of a shareholder who has admitted that he bought stock for the purpose of objecting to settlements not in the interests of shareholders, when that shareholder has expressed ideological concern about the value of all disclosure-only settlements? 

Is Prof. Griffith’s desire to protect shareholders a desire to enhance short- or long-term wealth of the entity from greedy lawyers and bad managers? Or is it a desire to punish those who abuse class action lawsuits to their own ends? Both would be reasonable motivations (though, for now, I reserve judgment on whether either assessment is accurate), but it seems that the law might view such motivations differently. 

Take, for example, Pillsbury v. Honeywell, Inc., 191 N.W.2d 406 (1971), which strikes me as similar in concept, if not law.  In that case, the court rejected Charles Pillsbury’s request to access the company shareholder list and review books and records of Honeywell.  The request was expressly related to Pillsbury’s anti-war efforts, and Pillsbury made clear that he sought the records because he thought Honeywell’s activities in weapons were immoral.  The court denied access stating that 

petitioner had already formed strong opinions on the immorality and the social and economic wastefulness of war long before he bought stock in Honeywell. His sole motivation was to change Honeywell’s course of business because that course was incompatible with his political views. If unsuccessful, petitioner indicated that he would sell the Honeywell stock.

We do not mean to imply that a shareholder with a bona fide investment interest could not bring this suit if motivated by concern with the long- or short-term economic effects on Honeywell resulting from the production of war munitions. Similarly, this suit might be appropriate when a shareholder has a bona fide concern about the adverse effects of abstention from profitable war contracts on his investment in Honeywell.

If Prof. Griffith is looking to protect the long-term interests of all companies by protecting merging companies from harmful class action settlements, and his mechanism is buying shares in companies that he has reason to believe will merge, then perhaps his Robin Hood-like actions (in that the actions seek to return funds to the rightful owners) have value for shareholder wealth maximization and entity wealth maximization. The fact that he holds out the possibility that he won’t object to settlements where the litigation serves the purposes of the shareholder suggests he might be in this camp.  

But what if he will object to all settlement proposals? Or perhaps all disclosure-only settlement proposals, even where such settlements are allowable under the law?  Does this convert his actions to more of a Charles Pillsbury-like feel in that his actions are about opposing class actions settlements, regardless of whether settlement is in the best interest of the parties? 

Of course, his motivations don’t necessarily matter under current law in this area, but I can’t help but think the motivations will influence how a court views (and eventually decides upon) Prof. Griffith’s objections. And I think they should.  If, in any given case, Prof. Griffith is right that the settlement is not in the best interest of the shareholders, the court should uphold his objections. But, under current law, it’s possible that a disclosure-only settlement might still be the most efficient outcome.  It’s the court’s job to assess that in each case.

As the summer progresses, I have been slowly catching up on all the giant electronic reading pile I slowly built up during the school year. I recently read a very interesting article on personal jurisdiction, of all things. It’s Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of Consent, 36 Cardozo L. Rev. 1343 (2015), available on SSRN here. It’s definitely worth reading, whether you’re a corporate litigator or just interested in corporate law.

Here’s the abstract, which explains the article much better than I could:

In early 2014, the Supreme Court issued a game-changing decision that will likely put corporate registration as a basis for personal jurisdiction center stage in the years to come. In Daimler AG v. Bauman, the Court dramatically reined in general jurisdiction for corporations. The Court in Daimler held that a corporation is subject to general jurisdiction only in situations where it has continuous and systematic general business contacts with the forum such that it is “at home” there. Except in rare circumstances, a corporation is “at home” only in its state of incorporation and the state of its principal place of business. Plaintiffs who are foreclosed by Daimler from arguing continuous and systematic contacts with the forum as a basis for jurisdiction will now look to registration statutes to provide the relevant hook to ground personal jurisdiction over corporations.
 
Each of the fifty states has a registration statute that requires a corporation doing business in the state to register with the state and appoint an agent for service of process. A considerable number of states interpret their registration statutes as conferring general, or all-purpose, jurisdiction over any corporation that has registered to do business under the state statute. Those states that regard registration as permitting the exercise of general jurisdiction usually justify the assertion of jurisdiction on the basis of consent. That is, by knowingly and voluntarily registering to do business in a state, a corporation has consented to the exercise of all-purpose jurisdiction over it.
 
Registration to do business as a basis for general jurisdiction, however, rests on dubious constitutional footing. Commentators have approached the analysis from a variety of perspectives over the years. The analysis tends to focus on how courts have misread historical precedent and failed to account for the modernization of jurisdictional theory post-International Shoe Co. v. Washington. Largely unexplored, however, is the premise underlying registration-based general jurisdiction: that registration equals consent. In this Article, I argue that general jurisdiction based on registration to do business violates the Due Process Clause because such registration does not actually amount to “consent” as that term is understood in personal jurisdiction jurisprudence. I comprehensively explore why it is that registration cannot fairly be regarded as express (or even implied) consent to personal jurisdiction. First, I look at other forms of consent in the jurisdictional context — forum selection clauses and submission — and analyze the salient differences between these and registration. Second, I examine the nature of the consent that is said to form the basis for general jurisdiction and argue that it is essentially coercive or extorted. Coerced consent, an oxymoron, cannot legitimately form the basis for the assertion of general jurisdiction over a corporation. From there, I situate registration statutes in a larger conversation about general jurisdiction. I maintain that registration-based jurisdiction does not fit well into the landscape of general jurisdiction: it could eliminate the need for minimum contacts altogether; it results in universal and exorbitant jurisdiction; it is conceptually misaligned with doing business as a ground for jurisdiction; and it promotes forum shopping.

The subject is not one that I would be naturally attracted to. I don’t teach civil procedure and I don’t spend a lot of my professional time focusing on litigation issues. But I found Professor Monestier’s article very interesting and enjoyable. Even if you, like me, aren’t a civil procedure junkie, it’s worth checking out.

Caribbean Cruise Line recently won an interesting victory when Florida’s Fourth District Court of Appeal held that it could pursue an unfair trade practices claim against the Better Business Bureau for awarding it an “F” rating.  See Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach County, Inc., 2015 Fla. App. LEXIS 8497 (Fla. Dist. Ct. App. 4th Dist. June 3, 2015).

This was an unusual holding, because BBB ratings are usually treated as protected “opinion” speech under the First Amendment.  Caribbean Cruise Lines got around that, however, by claiming it was not attacking the rating itself, but BBB’s allegedly false representations regarding its methodology for generating the rating.  The court accepted that BBB’s statements about its methodology were factual and, if false, could be the subject of a lawsuit.

If that sounds familiar, it should – it’s exactly the argument that plaintiffs have used in litigation involving mortgage-backed securities.  Numerous plaintiffs have successfully argued that statements regarding appraisals and LTV ratios were false not because the appraisers’ opinions were false, but because the securitizers falsely described the methodology used to reach those opinions. 

Considering the complaints that have been lodged against the BBB, I suppose a decision like this was only a matter of time.  Still, I have to wonder how much this decision will be used to challenge local cartels, versus how much it will be used to flyspeck unfavorable reviewers.

Cynthia Bond, a professor at John Marshall Law School, is surveying law professors on their use of popular culture in teaching. Here’s Professor Bond’s call for participants:

Greetings Law Teacher Colleagues:

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).

To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:

https://www.surveymonkey.com/s/QH3GBZK

Thanks in advance for your time and have a wonderful rest of summer!

Cynthia Bond
The John Marshall Law School
Chicago, Il

The survey only takes a few minutes, so, if you’re a law professor, it won’t take much time to support a colleague’s research.

For a university discussion group this summer, I read William Deresiewicz’s book Excellent Sheep: The Miseducation of the American Elite and the Way to a Meaningful Life (2014).

Deresiewicz, a former Yale English professor, caused quite a stir in higher education circles with his Don’t Send Your Kid to the Ivy League article in the New Republic (and other articles in various outlets), which promoted Excellent Sheep pre-publication.

Deresiewicz’s attack on the ivy league can be summarized as follows:

  • Encourages a system that leads to resume-padding instead of authentic learning and service
  • Too much focus on future financial success and not enough focus on life’s big questions
  • Not enough socioeconomic diversity
  • Faculty preoccupied with research and do not spend enough time on teaching/service
  • Risk-taking is not encouraged; error for margin for students is too small
  • Coursework not rigorous enough
  • Students are kept doing busy-work rather than allowed to explore
  • Encourages a system that can lead to depression, isolation, etc. 

Deresiewicz taught at Yale for 10 years and was supposedly denied tenure in 2008. When I found out that Deresiewicz’s was denied tenure, I was tempted to write off his book as sour grapes, but I think it best to evaluate his claims on their own merit.

In my view, Deresiewicz doesn’t bring much new to the conversation, and a number of his challenges to the ivy league could be brought against many colleges and universities. His proposed solution is for students to consider attending a small liberal arts college (where teaching is still a priority) or a state school (where there is much more true diversity). Deresiewicz, however, seems to underestimate the value of connections, brand, resources, and opportunities at ivy league schools. 

Deresiewicz also laments the dwindling interest in the liberal arts and the increasing focus on majors that are more directly profession-focused (like economics and finance). While Deresiewicz seems to realize the risk in turning down an ivy league education and also choosing a major like History or English, he does not seem to fully realize how some students simply cannot afford those risks. While return on investment should certainly not be the only focus in choosing a school and a major, it is rightfully important to many.

Personally, I don’t think the entire 242-page book was worth the read. There simply was not much new, aside from a few glimpses behind the curtain at Yale. If I had it to do over again, I probably would have just stuck with Deresiewicz’s article and the responses (e.g., here and here).

TEXAS A&M UNIVERSITY SCHOOL OF LAW seeks to expand its academic program and its strong commitment to scholarship by hiring multiple exceptional faculty candidates for tenure-track or tenured positions, with rank dependent on qualifications and experience.  Candidates must have a J.D. degree or its equivalent.  Preference will be given to those with demonstrated outstanding scholarly achievement and strong classroom teaching skills.  Successful candidates will be expected to teach and engage in research and service.  While the law school welcomes applications in all subject areas, it particularly invites applications from:

1)    Candidates who are interested in building synergies with Texas A&M University’s Mays Business School, with an emphasis on scholars engaged in international business law who focus on cross-border transactions, trade, and economic law (finance, investments, dispute resolution, etc.);

2)    Candidates who are interested in building synergies with the broad mission of Texas A&M University’s College of Agricultural and Life Sciences, which include but are not limited to scholars engaged in agricultural law (including regulatory issues surrounding agriculture), rural law, community development law, food law, ecosystem sciences, and forensic evidence; and

3)    Visionary leaders in experiential education interested in guiding our existing Intellectual Property and Technology Law Clinic (with concentrations in both trademarks and patents), Entrepreneurship Law Clinic, Family Law and Benefits Clinic, Employment Mediation Clinic, Wills & Estates Clinic, Innocence Clinic, Externship Program, Equal Justice/Pro Bono Program, and Advocacy Program, with a particular emphasis on candidates who may have an interest in participating in our Intellectual Property and Technology Law Clinic or developing an Immigration Law Clinic.

Texas A&M University is a tier one research institution and American Association of Universities member.  The university consists of 16 colleges and schools that collectively rank among the top 20 higher education institutions nationwide in terms of research and development expenditures.  As part of its commitment to continue building on its tradition of excellence in scholarship, teaching, and public service, Texas A&M acquired the law school from Texas Wesleyan University in August of 2013.  Since that time, the law school has embarked on a program of investment that increased its entering class credentials and financial aid budgets, while shrinking the class size; hired eleven new faculty members, including nine prominent lateral hires; improved its physical facility; and substantially increased its career services, admissions, and student services staff. 

Texas A&M School of Law is located in the heart of downtown Fort Worth, one of the largest and fastest growing cities in the country.  The Fort Worth/Dallas area, with a total population in excess of six million people, offers a low cost of living, a strong economy, and access to world-class museums, restaurants, entertainment, and outdoor activities.

As an Equal Opportunity Employer, Texas A&M welcomes applications from a broad spectrum of qualified individuals who will enhance the rich diversity of the university’s academic community. Applicants should email a résumé and cover letter indicating research and teaching interests to Professor Timothy Mulvaney, Chair of the Faculty Appointments Committee, at appointments@law.tamu.edu.  Alternatively, résumés can be mailed to Professor Mulvaney at Texas A&M University School of Law, 1515 Commerce Street, Fort Worth, Texas 76102-6509.

The following comes to us from Dorothy Brown, Vice Provost for Academic Affairs & Professor of Law at Emory University School of Law:

We are conducting searches in two areas: health law and business law. We are looking for a senior health law scholar with a national reputation in health care regulation who is interested in helping to build a multidisciplinary health law, policy & management center, in cooperation with other Emory divisions including our School of Medicine, School of Public Health, and the nearby Center for Disease Control. In addition, we are looking for a junior (no more than 2-3 years of teaching experience) in Business law. Please feel free to contact me [at dorothy.brown@emory.edu] if you are interested or know of others who might be interested in being considered.

 

For a number of years now, I have been using group (3-person teams) oral midterm examinations in my Business Associations course.  I have found these examinations to be an effective and rewarding assessment tool based on my teaching and learning objectives for this course.  At the invitation of the Saint Louis University Law Journal, as part of a featured edition of the journal on teaching business associations law, I prepared a short article giving folks the “why, how, and what” of my experience in taking this approach to midterm assessment.  The article was recently published, and I have posted it to SSRN.  The abstract reads as follows:

I focus in this Article on a particular way to assess student learning in a Business Associations course. Those of us involved in legal education for the past few years know that “assessment” has been a buzzword . . . or a bugaboo . . . or both. The American Bar Association (ABA) has focused law schools on assessment (institutional and pedagogical), and that focus is not, in my view, misplaced. Until relatively recently, much of student assessment in law school doctrinal courses was rote behavior, seemingly driven by heuristics and resulting in something constituting (or at least resembling) information cascades or other herding behaviors.

In the fall of 2011, I began offering an oral midterm examination to students in my Business Associations course as an additional assessment tool. This Article explains why I started (and have continued) down that path, how I designed that examination, and what I have learned by using this assessment method for three years. Although some (probably most) will not want to do in their Business Associations courses exactly what I have done in mine (as to the midterm examination or any other aspects of the course described in this Article), I am providing this information to give readers ideas for, or courage to make positive changes in, their own teaching (for a course on business associations or anything else).

You may think I am crazy (even–or especially–after reading this article).  Regardless, I do hope the article sparks something positive in you regarding your teaching in Business Associations or some other course.  Since I am working on finishing a long-overdue book on teaching business associations for Aspen this summer, I would welcome your honest reactions to the article and your additional thoughts on assessment or other aspects of teaching Business Associations.

The West Virginia Constitution provides for corporations in Article XI, and states the traditional understanding related to liability: 

11-2.  Corporate liability for indebtedness.

      The stockholders of all corporations and joint-stock companies, except banks and banking institutions, created by laws of this state, shall be liable for the indebtedness of such corporations to the amount of their stock subscribed and unpaid, and no more. 

So, suppose that one seeks to pierce the corporate veil.  Does this provision allow for that? Typically, common law allowed veil piercing and constitutions often provide that something that existed in common law remains (which appears to be the case here).  I guess, then, veil piercing is okay, though I think one could argue that a constitutional basis for limited liability should be stronger than a statutory one. 

The better argument, I think, is that veil piercing disregards the entity.  Thus, the constitutional protection does not connect, because there is no corporation.  If we thought of things this way, we’d probably be more reluctant to veil pierce, because it would be a judicial statement that the corporation that was purportedly formed does not exist because of the failures of those in charge of the entity.

Where the shareholders truly don’t intend to have an entity, I am okay with this, but that’s really the rarity.  Where there is fraud, prove fraud. Where there is a constitutional protection for limited liability, the respect for the entity should be exceedingly strong.  Stronger than the common law standard.

I am not arguing that a constitutional right to limited liability is a good idea — I’m currently agnostic on that.  I’m questioning whether constitutional corporate status changing the veil piercing calculation.  I am thinking yes, but I am not sure to what degree.   I plan to give this some more thought, but I welcome comments on how constitutional limited liability status (once it exists) should change veil piercing analysis.