The following comes to us from Lee Epstein, Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis.

The 14th annual workshop on Conducting Empirical Legal Scholarship, co-taught by Lee Epstein and Andrew D. Martin, will run from June 15-June 17 at Washington University in St. Louis. The workshop is for law school faculty, lawyers, political science faculty, and graduate students interested in learning about empirical research and how to evaluate empirical work. It provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data.

Participants need no background or knowledge of statistics to enroll in the workshop. Registration is here. For more information, please contact Lee Epstein.

I attended this workshop a few years ago, and thought it was excellent.

As I have previously mentioned, unlike law schools, business schools appear to hire virtually year-round.  While most of the business schools have filled their open positions by this late date, there have been some recently posted positions. 

Bentley University (full-time, non-tenure track) (posted 3/9/15)

Central State University (assistant) (posted 3/5/15)

Lincoln Memorial University (assistant, instructional faculty) (posted 4/1/15)

Quinnipiac University (full-time, non-tenure track) (posted 4/7/15)

Saint Mary’s College of California (full-time, visiting professor) (posted 4/9/15)

Sam Houston State (tenure-track assistant) (posted 5/19/15)

University of Houston-Clear Lake (tenure-track assistant) (posted 2/24/15)

University of Louisiana-Lafayette (assistant professor) (received 4/21/15)

University of Wisconsin – La Crosse (tenure-track assistant) (priority 3/23/15)

University of Wisconsin – Milwaukee (full-time, non-tenure track) (posted 3/19/15)

Western Carolina University (assistant, non-tenure track) (posted 3/6/15)

It’s that time of year again where I have my business associations students pretend to be shareholders and draft proposals. I blogged about this topic last semester here. Most of this semester’s proposals related to environmental, social and governance factors. In the real world, a record 433 ESG proposals have been filed this year, and the breakdown as of mid-February was as follows according to As You Sow:

Environment/Climate Change- 27%

Political Activity- 26%

Human Rights/Labor-15%

Sustainability-12%

Diversity-9%

Animals-2%

Summaries of some of the student proposals are below (my apologies if my truncated descriptions make their proposals less clear): 

1) Netflix-follow the UN Guiding Principles on Business and Human Rights and the core standards of the International Labour Organization

2) Luxottica- separate Chair and CEO

3) DineEquity- issue quarterly reports on efforts to combat childhood obesity and the links to financial risks to the company

4) Starbucks- provide additional disclosure of risks related to declines in consumer spending and decreases in wages

5) Chipotle- issue executive compensation/pay disparity report

6) Citrix Systems-add board diversity

7) Dunkin Donuts- eliminate the use of Styrofoam cups

8) Campbell Soup- issue sustainability report

9) Shake Shack- issue sustainability report

10) Starbucks- separate Chair and CEO

11) Hyatt Hotels- institute a tobacco-free workplace

12) Burger King- eliminate GMO in food

13) McDonalds- provide more transparency on menu changes

14) Google-disclose more on political expenditures

15) WWE- institute funding cap

One proposal that generated some discussion in class today related to a consumer products company. As I skimmed the first two lines of the proposal to end animal testing last night, I realized that one of my friends was in-house counsel at the company. I immediately reached out to her telling her that my students noted that the company used to be ”cruelty-free,” but now tested on animals in China.  She responded that the Chinese government required animal testing on these products, and thus they were complying with applicable regulations. My students, however, believed that the company should, like their competitors, work with the Chinese government to change the law or should pull out of China.  Are my students naïve? Do companies actually have the kind of leverage to cause the Chinese government to change their laws? Or would companies fail their shareholders by pulling out of a market with a billion potential customers? This led to a robust debate, which unfortunately we could not finish.

I look forward to Tuesday’s class when we will continue these discussions and I will show them the sobering statistics of how often these proposals tend to fail. Hopefully we can also touch on the Third Circuit decision, which may be out on the Wal-Mart/Trinity Church shareholder proposal issue.These are certainly exciting times to be teaching about business associations and corporate governance.

For thirty years, I have had a pet peeve about the media’s routine reporting on mergers and acquisitions.  I have kept this to myself, for the most part, other than scattered comments to law practice colleagues and law students over the years.  Today, I go public with this veritable thorn in my side.

From many press reports (which commonly characterize business combinations as mergers), you would think that every business combination is structured as a merger.  I know I am being picky here (since there are both legal and non-legal common parlance definitions of the verb “merge”).  But a merger, to a business lawyer, is a particular form of business combination, to be distinguished from a stock purchase, asset purchase, consolidation, or statutory share exchange transaction.

The distinction is meaningful to business lawyers for whom the implications of deal type are well known.  However, imho, it also can be meaningful to others with an interest in the transaction, assuming the implications of the deal structure are understood by the journalist and conveyed accurately to readers.  For instance, the existence (or lack) of shareholder approval requirements and appraisal rights, the need for contractual consents, permit or license transfers or applications, or regulatory approvals, the tax treatment, etc. may differ based on the transaction structure.

Continue Reading Media Coverage of Business Combinations

In December, 2014 the Second Circuit in US v. Newman addressed liability of remote tippees.  In Newman, a lawyer told a friend who told a roommate information regarding the sale of SPSS Inc. to IBM that found its way into later trades by a cohort of analysts at hedge funds and investment firms. (Op. at 5-7).  The Second Circuit in  Newman  vacated insider trading convictions and narrowed the standard for “improper benefit”, reconsideration of which was denied last week, and thus stands pending review by the U.S. Supreme Court.  To qualify as an improper benefit under Newman, there must be proof of a meaningfully close relationship, where the “the personal benefit received in exchange for confidential information must be of some consequence.” (Op. at 22).  Newman also made clear that liability standards are the same whether the tippee’s liability arises under the classical or the misappropriate theories. (Op. at 11).

Judge Jed S. Rakoff, of Federal District Court in Manhattan, issued an order denying a motion to dismiss the SEC’s civil charges against Daryl Payton and Benjamin Durrant III, defendants in Newman who received their information from the roommate of the friend of the lawyer.  This is the first case to examine the impact of the Newman opinion in the civil context.  Judge Rakoff wrote:

Significantly while a person is guilty of criminal insider trading only if that person committed the offense “willfully,” i.e., knowingly and purposely, a person may be civilly liable if that person committed the offense recklessly, that is, in heedless disregard of the probable consequences.  (Op. at 2)

 Judge Rakoff concluded that the SEC’s “Amended Complaint more than sufficiently alleges that defendants knew or recklessly disregarded that Martin received a personal benefit in disclosing information to Conradt, and that Martin in doing so breached a duty of trust and confidence to the owner of the information. (Op. at 16).

Peter J. Henning, a professor at Wayne State University Law School, writes in his article in the DealB%k that:

Judge Rakoff’s analysis provides at least some guidance on how to assess the new landscape under the Newman opinion. Courts tend to apply securities law decisions interchangeably in criminal and civil cases, so the Justice Department can cite his opinion as a favorable precedent in other cases involving tippees. 

This and other insider trading enforcement actions by the SEC can be tracked here.

-Anne Tucker

So, Duke is the 2015 NCAA Men’s Basketball champion. As a Michigan State basketball fan, this was at least mildly gratifying because the Spartans final losses the past two seasons have been to the eventual champion. (MSU’s final two losses this season: Wisconsin and Duke.) Hardly the same as winning the whole thing, but after a loss, one takes what one can get. 

This semester I am teaching Sports Law for the first time, and it has been an interesting and rewarding experience. As our recent guest, Marc Edelman, recently noted, there is a lot going on right now in college sports (there probably always is), with questions about paying NCAA players and players’ rights to unionize, among other things, leading the way.  

I am a big fan of college sports, and I generally prefer college sports to professional sports. I don’t, however, have any illusion that big-time college sports are, in any real sense, pure or amateur. (For that matter, I don’t know what “pure” means, but I hear complaints that colleges sports are “no longer pure,” so it appears there is some benchmark somewhere.)  College sports are a modified form of professional sports or, as the term I used to hear from time to time in other contexts, semi-pro sports.

What College Sports Are

College sports, in the simplest sense, are highly talented young people competing on behalf of educational institutions in exchange for the opportunity to pursue a mostly funded college education, if they so choose and can make it fit in with their athletic obligations.  The athletes are compensated for their efforts with opportunities that are varied and wide ranging, depending on the athlete and the institution for which they compete.  

Obviously, the experience for the high-profile college athlete — generally football and men’s and women’s basketball — is different from that of the less-watched sports, such as gymnastics, track, and golf.  But in all instances, the athletes represent their institution on and off the field, and they all have significant obligations that come along with their participation on their team. (Not all athletes have full or even partial scholarships, which can vary the obligations, though often all athletes have similar requirements.)

(To read more, please click below)

Continue Reading Time to Grow Up: the Business of College Sports, Men’s Basketball Edition

Yesterday was the third anniversary of the JOBS Act. President Obama signed it into law on April 5, 2012. The JOBS Act, as regular readers of this blog know, requires the SEC to adopt rules to enact an exemption for crowdfunded securities offerings. The statutory deadline for the SEC to do so was December 31, 2012. The SEC proposed the required rules on October 23, 2013, but it still has not adopted them.

It is now

  • 1096 days since Congress passed the JOBS Act
  • 826 days since the deadline for the SEC to adopt the required rules
  • 530 days since the SEC proposed the rules

. . . and still no crowdfunding exemption.

If I treated my tax returns like the SEC has treated the crowdfunding rules, I would be in jail.

SEC Chair Mary Jo White has recently said that the SEC hopes to finalize the rules by the end of the year. I certainly hope so.

Recently, I received the following conference announcement via e-mail:

———–

Understanding the Modern Company

Organised by the Department of Law, Queen Mary University of London,

in cooperation with University College London

Saturday 9 May 2015, 09.00 to 17.00

Centre for Commercial Law Studies

Queen Mary University of London

67-69 Lincoln’s Inn Fields

London WC2A 3JB

From their origin in medieval times to their modern incarnation as transnational bodies that traverse nations, the company remains an important, yet highly misunderstood entity. It is perhaps not surprising then that understanding what a company is and to whom it is accountable remains a persistent and enduring debate across the globe.

Today, the company is viewed in a variety, and often contradictory, ways. Some see it as a public body; others view it as a system of private ordering, while still others see it as a hybrid between these two views. Companies have also been characterized as the property of their shareholders, a network, a team, and even akin to a natural person. Yet the precise nature of the company and its role in society remain a modern mystery.

This conference brings together a wealth of scholars from around the world to explore the nature and function of companies. By drawing from different backgrounds and perspectives, the aim of this conference is to develop a normative approach to understanding the modern company.

SPEAKERS

Professor William Bratton, University of Pennsylvania

Professor Christopher Bruner, Washington & Lee University

Professor Karin Buhmann, Roskilde University

Dr Barnali Choudhury, Queen Mary University of London

Professor Janet Dine, Queen Mary University of London

Professor Luca Enriques, University of Oxford

Professor Brandon Garrett, University of Virginia

Professor Martin Gelter, Fordham Law School

Professor Paddy Ireland, University of Bristol

Dr Dionysia Katelouzou, King’s College London

Professor Andrew Keay, University of Leeds

Professor Ian Lee, University of Toronto

Dr Marc Moore, University of Cambridge

Dr Martin Petrin, University College London

Professor Beate Sjåfjell, University of Oslo

Professor Lynn Stout, Cornell University

To register, please visit: www.bit.ly/QM-Modern-Company

Emory Law School seeks an Assistant Director of the Center for Transactional Law and Practice to teach in and share the administrative duties associated with running the largest program in the Law School.  Each candidate should have a J.D. or comparable law degree and substantial experience as an attorney practicing or teaching transactional law.  Significant contacts in the Atlanta legal community are a plus.

Initially, the Assistant Director will be responsible for leading the charge to further develop the Deal Skills curriculum.  (In Deal Skills – one of Emory Law’s signature core transactional skills courses – students are introduced to the business and legal issues common to commercial transactions.)  The Assistant Director will co-teach at least one section of Deal Skills each semester, supervise the current Deal Skills adjuncts, and recruit, train, and evaluate the performance of new adjunct professors teaching the other sections of Deal Skills.

As the faculty advisor for Emory Law’s Transactional Law Program Negotiation Team, the Assistant Director will identify appropriate competitions, select team members, recruit coaches, and supervise both the drafting and negotiation components of each competition.  The Assistant Director will also serve as the host of the Southeast Regional LawMeets® Competition held at Emory every other year.

Additionally, the Assistant Director will be responsible for the creation of two to three new capstone courses for the transactional law program.  (A capstone course is a small, hands-on seminar in a specific transactional law topic such as mergers and acquisitions or commercial real estate transactions.)  The Assistant Director will identify specific educational needs, recruit adjunct faculty, assist with curriculum design, and monitor the adjuncts’ performance.  

Besides the specific duties described above, the Assistant Director will assist the Executive Director with the administration of the transactional law program and the Transactional Law and Skills Certificate program.  This will involve publicizing the program to prospective and current students, monitoring the curriculum to assure that students are able to satisfy the requirements of the Certificate, and counselling students regarding their coursework and careers.  The Assistant Director can also expect to participate in strategic planning, marketing, fundraising, alumni outreach, and a wide variety of other leadership tasks.

APPLICATION PROCEDURE:  

Emory University is an equal opportunity employer, committed to diversifying its faculty and staff.  Members of under-represented groups are encouraged to apply.  For more information about the transactional law program and the Transactional Law and Skills Certificate Program, please visit our website at:  

http://law.emory.edu/academics/academic-programs/center-for-transactional-law-and-practice/index/

To apply, please mail or e-mail a cover letter and resumé to: 

 

Kevin Moody

Emory University Law School

1301 Clifton Road, N.E.

Atlanta, GA  30322-2770

sue.payne@emory.edu.

 

APPLICATION DEADLINE:  April 30, 2015

 

[Hat tip to Bobby Ahdieh for this post]