I was reading an article on securities crowdfunding in China and came across this description of Chinese practice:

Generally, in China, equity-based crowdfunding capital-seekers rely on the strength of experienced, leading investors to advise “follow-up” investors in locating investment projects. Leading investors are usually professionals with rich experience in private offerings and label themselves as holding innovative techniques in investment strategies and possessing sound insights. On the contrary, follow-up investors usually do not have even basic financial skills, but they do ordinarily control certain financial resources for investment. When a leading investor selects a target investment project through an equity-based crowdfunding platform, the leading investor usually invests personal funds into the project. Crowdfunding capital- seekers then take advantage of the leading investor’s funds to market the project to follow-up investors.

(This is from a recent article by Tianlong Hu and Dong Yang, The People’s Funding of China: Legal Developments of Equity Crowdfunding-Progress, Proposals, and Prospects, 83 U. CIN. L. REV. 445 (2014).)

This is not unique to China. Private offerings to accredited investors in the United States often follow a similar path. Smaller investors are more likely to commit once a well-known, sophisticated investor has made a commitment. But the article made me wonder if we could use that structure to create a new securities offering exemption—one that responds to some of the policy concerns people have about the existing exemptions.

Most unregistered primary offerings of securities in the United States are pursuant to Rule 506 of Regulation D, the regulatory safe harbor for the private offering exemption in the Securities Act. Offerings pursuant to Rule 506, either by law [Rule 506(c)] or for practical reasons [Rule 506(b)], are limited to “accredited investors,” a defined term.

Many people have argued that the definition of accredited investor in Regulation D is too broad. Some of the investors covered by the definition are sophisticated institutional investors who clearly can fend for themselves. But the definition also includes many unsophisticated individuals who meet relatively low net worth and income requirements. Many of these investors, it is argued, cannot adequately evaluate the merits and risks of Rule 506 private offerings.

On the other hand, some people have complained that limiting these offerings to accredited investors privileges wealthy people at the expense of “ordinary” investors. Rich people have the opportunity to participate in these sometimes-lucrative offerings, but the rest of us cannot. That was one of the arguments for the not-yet-implemented section 4(a)(6) crowdfunding exemption added by the JOBS Act.

One way to resolve the tension between these two arguments, and deal with both concerns, would be to allow unsophisticated investors to invest in an offering only after a sophisticated investor has made a commitment. Ordinary investors might not be able to protect themselves, but they could free ride on the sophisticated investor’s evaluation of the offering.

We could create a new category of super-accredited investors, consisting only of institutions or individuals who clearly have the sophistication to protect themselves. Once one of those investors purchases a significant stake in an offering, other investors could purchase on the same terms.

For example, if Startup Corporation wanted to raise $50 million in an unregistered offering, it could first sell $10 million of the securities to a large venture capital firm. After that, it would be free to sell the remaining $40 million on the same terms to any investor, accredited or non-accredited, wealthy or not.

The lead investor’s evaluation of the offering wouldn’t completely protect the other investors. In particular, the lead investor’s tolerance for risk might be much higher than most ordinary investors’. But lead investor’s evaluation would help protect against fraud and overreaching by the issuer.

The exemption would have to include some additional requirements to make sure that the other investors can reasonably rely on the lead investor’s decision to invest:

1. No conflicts of interest. The lead investor could not have a relationship to the issuer. Otherwise, the lead investor’s decision to invest might be due to that relationship, not because it believes the investment is a good one.

2. Minimum Investment. There should be a minimum investment requirement for the lead investor, to give the lead investor sufficient incentive to review the deal. To take an extreme example, a lead investor’s decision to invest $1 in a $50 million offering tells us little about the quality of the deal.

3. Same Terms. The lead investor must be investing on the same terms as the subsequent investors. The lead investor’s decision that an investment is worthwhile offers no protection at all to subsequent investors if those subsequent investors are getting a materially different deal.

4. Exit. If the lead investor’s decision to invest provides a signal to the other investors, so does the lead investor’s decision to exit the investment. At a minimum, the lead investor should have to disclose to the other investors when it sells. And, if the issuer is repurchasing the lead investor’s securities, we might want to impose a requirement that the issuer also offer to repurchase the securities of the other investors who purchased in the exempted offering.

This is just a sketch of what such an exemption would look like, about as far as one can go in a blog post. The proposed exemption would not be perfect. It wouldn’t guarantee that investors were getting a good deal, or even that the offering was not fraudulent. But even registration can’t do that. And I think the proposal is a nice compromise between investor protection and capital formation concerns.

There have been a few recent articles in the news discussing diversity – or its lack – among lawyers.

First, Deborah Rhode writes in the Washington Post that law is one of the whitest professions.  People of color make up one fifth of law school grads but only 7 percent of law firm partners – and those numbers drop to 2 or 3 percent in BigLaw.  She argues that among other barriers, unconscious bias still plays a role in hindering the advancement of African American lawyers.  She also points out that women, as well, struggle to make partner – perhaps reflecting the difficulty that women have walking the tightrope of being aggressive enough to do their jobs, but not so aggressive that they come off as unfeminine.

Picking up on these themes, the American Lawyer recently published a report on how BigLaw is failing women.  Sometimes, these failures are attributed to demanding work schedules that make it difficult for women to shoulder responsibilities for childcare – which is why one law firm was recently profiled in the New York Times for hiring mainly women, and allowing them to adjust their schedules around their parenting responsibilities.  But flexible work schedules aren’t always a step in the right direction; this article about the lack of women’s advancement in consulting makes two important points.  First, “family-friendly” policies that allow women to work flexible schedules may undermine their advancement by signaling a lack of commitment to the firm, and second, that many people continue to harbor biases against women – including the assumption that women with children are not fully committed to work – regardless of the hours they keep.  The article suggests that instead of adopting flexible work schedules, firms should simply not require long hours of any employees – a suggestion that, not surprisingly, firms are not anxious to adopt.

Based on my law firm experience, these themes resonate.  I saw very, very few nonwhite lawyers.  There were also far fewer women partners than men partners.  (One thing I remember: in group meetings, men routinely talked over and interrupted the women, making it very difficult even for women partners to have their voices heard.) 

I don’t know what the solution is, but I do think the issues are real ones.  And, as Rhode points out, because lawyers often have critical roles in society – in government, and other policymaking roles – it’s important that the profession be welcoming to all.

This week, while preparing for and attending the National Business Law Scholars Conference, I have had to deal with a Tennessee corporate law “brushfire” of sorts generated by a Nashville Business Journal (NBJ) article published earlier this week.  The article, written by a Nashville lawyer, took a somewhat alarmist–and substantively inaccurate–view of a recent addition to the Tennessee Business Corporation Act drafted by the Business Entity Study Committee (BESC) of the Tennessee Bar Association, of which I am a member (and about which I have written here in the past, including here, here, and here).  Specifically, the author asserted that Tennessee’s adoption of the text of Model Business Corporation Act Section 14.09 creates new liability for Tennessee corporate directors–especially directors of insolvent Tennessee corporations.  Somewhat predictably, calls and emails from directors, executives, and the Tennessee Secretary of State’s office (which, itself, received many calls) ensued.

By design, and (we believe) by effect, the statutory section at issue clarifies the duties of directors of dissolved Tennessee corporations and establishes a safe harbor from liability.  Accordingly, the drafting team from the BESC (me included) believed we had to jump in and correct the mischaracterizations in the article, which the author apparently was unwilling to retract or self-correct.  The NBJ, greatly to its credit, understood our concerns and published a rebuttal from the BESC chair, which the BESC collaborated in drafting and co-signed.  In addition, the Chattanooga Times Free Press published an article that outlines the debate (in which the BESC chair and I am quoted).

So, folks do pay attention to corporate law–and they think it matters! Unfortunately, sometimes, they get it wrong. This leads to a number of lessons . . . .  Apropos of that thought, it’s important that a lawyer measure twice and cut once, especially when writing a critical exposé intended and destined to receive attention from an important audience–one personally affected by the contents of the exposé.  Moreover, the need for experienced corporate legal counsel–lawyers steeped in the structure and function of corporate law–continues to be important in the drafting of, and public education regarding, complex corporate legal rules.

The New Yorker recently ran an interesting article entitled Patagonia’s Anti-Growth Strategy. Patagonia is a certified B corporation and a California benefit corporation.

As a customer, Patagonia is my favorite company for casual/outdoor clothing, and one of my favorite companies in any industry. Initially, I thought Patagonia’s clothes were insanely expensive, but their clothes have been much cheaper on a “cost-per-wear” basis than any other clothes I have bought. In an age of cheap products and rampant consumerism, Patagonia is striking a chord with those who wish to buy fewer, quality products.

A taste of the article follows, but go read the entire thing.

The company’s anti-materialistic stance ramped up on Black Friday, 2011, with a memorable full-page advertisement in the Times that read, “Don’t Buy This Jacket.” The ad’s text broke down the environmental costs of the company’s top-selling R2 fleece sweater and asked consumers to think twice before buying it or any other product. The attention the ad received helped to bump Patagonia’s 2012 sales significantly. . . . Patagonia is trying second-hand-clothing sales at its shop in Portland, Oregon, and has made product repair and recycling a growing part of its business model. It recently invested in Yerdle—a Web startup whose stated mission is to reduce new-product purchases by twenty-five per cent—as a way for people, and even the company itself, to swap or give away used Patagonia gear.

Despite being a customer for about two decades, I haven’t needed the Patagonia repair services yet, but I love the idea.  

As the article above mentions, “[a]ll of this would be jet fuel for the engines of modern cynicism, if not for the fact that Patagonia, a privately owned corporation now in its fifth decade, has a distinguished record of environmental philanthropy and investment.” Patagonia may eventually experience mission drift, but the trust they have created with their customers is invaluable. While Patagonia’s anti-consumerism stance may seem to be against the firm’s self-interest, “anti-consumerism is clearly helping to build the Patagonia brand. Indeed, the company is seeing double-digit annual growth.”

Patagonia’s founder Yvon Chouinard has two books worth reading by those interested in social business: Let My People Go Surfing and The Responsible Company.

Greetings from Havana. I spent 3 days last week with the Florida bar learning about the Cuban legal system and foreign investment from local and Canadian lawyers and a Cuban-based American reporter. I have spent the past several days looking at art from over 40 countries at the Biennal. My internet is spotty and I’m typing this on my phone so please excuse any spacing issues. Only 5 percent of people have internet access so a hotel lobby is prized real estate.
Over the next few months I will be researching about Cuba, foreign investment, and the human rights implications. I have a particular interest in this because for many years pre-academy I had to ensure that my former company and its subsidiaries did not violate the law by doing business with Cuba. Although the embargo is still in place, more and more US companies are applying every day for OFAC licenses to enter the Cuban market.
If you have any insight/opinions on the pros/cons of bilateral investment treaties (there are already dozens with Cuba), whether Cuba will follow the VietNam model for modernizing its economy, or whether foreign investment can spur human rights reforms or just perpetuate the status quo let me know in the comments or via email at mnarine@stu.edu. For those who follow the Cuba issue, the US Congress has been busy this week proposing and passing legislation on doing business with the island.
Next week when I have a more stable internet connection I’ll give you my impressions on doing business in Cuba. In the meantime, adios.

I just signed up for the SEALSB Annual Conference, which will be held in Atlanta, GA from November 12 through 14. I have attended and presented at the SEALSB Annual Conference each of the past two years. Both years we had a good group of professors.

The paper presentations are not limited by legal subject area, and the presentations in past years have covered issues in corporate governance, constitutional law, employment law, international law, sports and the law, franchise law, and other areas.

The conference is intended for “teachers and scholars in the fields of business law, legal environment, and law-related courses outside of professional law schools.” Most participants teach legal studies in business schools. I am told that those who interested in or exploring teaching legal studies outside of a law school are also welcome.

Conference registration information is available here. 

I just returned early Monday from this year’s Law and Society Association conference.  I presented my paper on LLC operating agreements as contracts–about which I later will blog here–on a panel as part of a CRN (Collaborative Research Network) on corporate and securities law.  I enjoyed the conference and being in Seattle (a city I rarely get a chance to visit).

I noticed something in a number of the sessions I attended, however, that I want to share here.  A number of scholars referenced, in their presentations or in comments to the presentations of others, “shareholder primacy.”  As I listened, it was clear these folks were referring to the prioritizing of shareholder interests–especially financial interests–ahead of the interests of other stakeholders in corporate decision-making, rather than the elements of corporate control (few as there are) enjoyed by shareholders.  As I began to recognize this, several things happened in rapid succession.

First, I remembered David Millon’s recent paper on this subject, which (among other things) tells a history of the use of the “shareholder primacy” term.  It’s well worth a read.  Or a re-read!

Second, I remembered Steve Bainbridge’s earlier work on this same topic. Ditto on that paper; read it or re-read it.  His chart in Figure 1 of that paper is an amazing visual summary.

Third, and largely as a result of those two papers, I wondered why we use the same term for these two aspects of corporate modeling (whether you label them them radical versus traditional shareholder primacy, shareholder protection versus monitoring, corporate ends versus means, or anything else).  It’s confusing!  I kept wanting to interrupt, as folks were using “shareholder primacy,” to ask: “which kind?” to move my understanding and analysis further forward faster.

Here’s my pitch.  I advocate moving away from using the term “shareholder primacy” when a more specific term is available.  In the alternative, I advise defining the use of “shareholder primacy” in context when it is used, whether orally or in writing.  Am I alone in being unsettled by this?   Am I being too pedantic or controlling in my advocated solution or advice?  I welcome your views.

Yesterday Martin Lipton, of Wachtell, Lipton, Rosen & Katz, posted “Dealing with Activist Hedge Funds” at the Harvard Law School Forum on Corporate Governance and Financial Reform. This is more like a checklist included at the end of a treatise than a typical blog post and it promises many different uses from new associate training to inclusion in a corporate governance seminar syllabus  (CHECK!), to helping clients understand the landscape of activist hedge funds.  The post summarized common activist attack methods like proxy fights, withhold votes, proxy resolutions, and PR campaigns, etc.  It also provides a company/target defense checklist addressing major categories of action such as:

  • Creating designated corporate teams
  • Shareholder relations
  • Board of Director management strategies
  • Stock & financial monitoring

Additionally, the post categorizes, in some detail, the various response options available to targets as well as documents the shifting landscape of hedge fund activism: 

Many major activist attacks involve a network of activist investors (“wolf pack”) which supports the lead activist hedge fund, but attempts to avoid the disclosure and other laws and regulations that would hinder or prevent the attack if they were, or were deemed to be, a “group” that is acting in concert. Not infrequently, at the fringe of the wolf pack are some of the leading institutional investors, not actively joining in the attack, but letting the leader of the pack know that it can count on them in a proxy fight. The outcome of a proxy contest at most of the larger public companies is often, as a practical matter, determined by the votes of the three major passive investors: BlackRock, State Street and Vanguard. Major investment banks, law firms, proxy solicitors, and public relations advisors are now representing activist hedge funds and eagerly soliciting their business.

No question is this making my corporate governance seminar syllabus. I am so excited by this post that I am sharing it wholesale and encourage you to do so some productive procrastination or downtime between tasks by reading this article.

-Anne Tucker

NPR recently posted a story titled, Nonacademic Skills Are Key To Success. But What Should We Call Them? The story, by Anya Kamenetz, is about labeling non-cognitive skills (or skill areas) that are important — I would argue essential — to success.  The listed areas are as follows: (1) character, (2) non-cognitive traits and habits, (3) social and emotional skills, (4) growth mindset, (5) 21st Century skills, (6) soft skills, and (7) grit.  

Ms. Kamenetz explains:

More and more people in education agree on the importance of learning stuff other than academics.

But no one agrees on what to call that “stuff”.

There are least seven major overlapping terms in play. New ones are being coined all the time. This bagginess bugs me, as a member of the education media. It bugs researchers and policymakers too.

“Basically we’re trying to explain student success educationally or in the labor market with skills not directly measured by standardized tests,” says Martin West, at the Harvard Graduate School of Education. “The problem is, you go to meetings and everyone spends the first two hours complaining and arguing about semantics.”

 

Whatever you call it, it matters.  

Beyond the semantics, it would be easy to debate the relative importance of these areas, and I am not sure I’d organize (or label) my own list in this way, but the concept behind the story is critically important to legal education.  As we in law schools strive to prepare practice-ready lawyers (at least, that’s a primary focus of those with whom I have taught), I have often noticed that the skills students lack are often not information based.  Many times, it’s that students have a hard time with deadlines, responsiveness, accountability, and thoroughness. 

Though it’s less true today that it may have been ten, twenty, and thirty years ago, it’s easy to get caught up in the idea that students might not have been taught how to draft a complaint, or file a motion, or create an LLC.  These are all things a lawyer should be able to do, of course, but I am finding that just showing students how to file a motion or form an LLC does not mean they are ready to actually do it.  That is, I am confident that some students I have taught how to form an LLC (and did well in my class) would not be ready to do that on their own. And I know some students who weren’t in my class and have never seen an LLC statute who would be ready to figure it out. Why?  Life skills.  

Anyone who worked in a BigLaw job saw people who were clearly not cut out to do the job, even though the folks there come with a very serious pedigree. I sure saw people who couldn’t (or wouldn’t) do the work.  I worked with some truly brilliant and wonderful people, and I worked with some folks who had no idea (or at least no interest) in doing the work required.  For that matter, I also worked with some brilliant and wonderful partners, and just a couple smart partners who did good work but seemed committed to making people cry.  (That’s for a different post). 

How, in addition to cognitive skills, do we teach deadlines, responsiveness, accountability, and thoroughness? I think it’s through clinics and externship, as part of it, but it’s also through committed efforts in courses throughout the curriculum.  We often teach first-year students about hard deadlines in their writing course, and we do it to some degree with rigid exam schedules, but that lacks the constant nature of deadlines (and moving parts) we see in practice. We can do it in other classes, with additional assignments, and I think it’s worth trying. 

For my seminar courses, I have added small assignments and I don’t remind people. They do it, or they don’t. When students ask for an extension or change in their assignment date, I allow it if it fits my schedule and the class schedule. I’ll decline or add a penalty if it causes others a problem. (They know this up front.)  It allows me to have conversations throughout the course about the importance of deadlines, and to talk more realistically about how things work in the real world.  I know I’m not solving everything, but I do think talking about these things candidly forces students to engage with these life skills in a way that might not otherwise.  

It’s easy to think a lot of the life skills are things you have or you don’t, but that’s not true.  They just come to some people more easily. Others can be taught, if they want to be. For those who want to learn, I think it’s our job to teach them.  And for those who don’t want or care to learn these skills, if we offer the education, it’s one less thing they can blame when they’re shown the door or otherwise don’t get what they want.  

[Author’s note:  My colleague Steve Bradford’s post “Practice-Ready” Law Graduates? is a worthwhile companion to this post.]