Below is a call for papers that I received by e-mail earlier today.  

RESEARCH COLLOQUIUM: CALL FOR PAPERS

Law and Ethics of Big Data

April 17 & 18, 2015

Indiana University- Bloomington, IN.

Abstract Submission Deadline: January 17, 2015

A research colloquium, “Law and Ethics of Big Data,” co-hosted by Professor Angie Raymond of Indiana University and Janine Hiller of Virginia Tech, is sponsored by the Center for Business Intelligence and Analytics in the Pamplin College of Business, Virginia Tech; the Kelley School of Business at Indiana University; and the Poynter Center for the Study of Ethics and American Institutions at Indiana University.

Up to six invitations for research presentation slots will be extended based on this call for papers. In order to receive consideration, researchers are invited to submit an abstract by January 17, 2015.

Continue Reading Law and Ethics of Big Data│Bloomington, IN│April 17-18, 2015

In Business Organizations today, I spent some time reviewing the differences between varying entity types.  I made the point that courts often make mistakes on this front, especially with LLCs and corporations, and it reminded me I needed to follow up on my own pet LLC protection project. 

Over the years, I have taken more than a passing interest in how often courts refer to (and ultimately treat) LLCs. I have this thing where I think LLCs are not treated as well doctrinally as they should. In February of this month, I made the argument,  Courts Should Get the Doctrinal Distinction Between LLCs and Corporations, and I have made other similar arguments (here, here, and here).  

As part of this I committed to noting when courts refer to LLCs as “limited liability corporations” and not “limited liability companies,” as they should.  Almost one year ago, I noted this continuing theme, repeating the search I did for a 2011 article, where I found in a May 2011 search of Westlaw’s “ALLCASES” database that there were 2,773 documents with the phrase “limited liability corporation,” in describing an LLC. (That article is here.)  Things are not getting much better.  Since Oct. 15, 2013, there have been 410 more cases making that same mistake. Just since my February 4, 2014 post, reference above, there have been 300 of those cases.  

As I read through some of these cases, many of which don’t seem to turn on whether the entity is a limited liability company or a corporation, I have noticed that some of the cases may have an entity structure issue that no one is raising.  That’s a failure of at least one of the parties, and potentially the court.  I plan to follow up with a few example of such cases, but for now, I’ll part with my familiar refrain: as long as courts keeping describing limited liability companies as corporations, I’ll keep pointing it out.

 

I typically teach Corporate Finance as a planning and drafting course to 3L law students in the fall semester each academic year.  (See my part of this transcription for some details.)  This year is no different in that regard.  I really like my Corporate Finance class this fall.  The students all seem pretty motivated (although not in every class meeting) and are asking relevant “how to” questions in class.

I am in the midst of teaching my unit on convertible, exchangeable, and derivative instruments at the moment.  This semester, I am teaching that unit in three 75-minute parts (after teaching one 75-minute class on hybrid instruments).  The first part is an introduction to the instruments themselves.  What are they and how do they operate?  Where are the provisions authorizing them in state corporate law statutes?  What do they look like and what are the key components of the operative (conversion, exchange, or exercise) provisions?  The second part is a dive into the poison pill as an intriguing example.  The third part is a look at common litigation issues affecting parties’ rights under these kinds of instruments (focusing on things like the characterization of transactions not expressly provided for in determining the applicability and effect of antidilution adjustment provisions and interactions between conversion and redemption provisions). 

I really enjoy teaching this part of the course, but I keep feeling like I am missing something.  Do any of you teach planning and drafting in a corporate finance context?  Do you focus on these instruments?  If so, what topics do you teach and hone in on?  I am writing a casebook for use in this kind of course and would love to make it relevant to as many folks as possible.  Please respond in the comments here or in an email message.  I would appreciate your feedback and guidance.

While you are at it (or even if you’re not), I also would be grateful if folks would weigh in on whether hybrid instruments should be taught separately from or together with convertibles, exchangeables, and derivatives.  Do you/would you teach convertibles, exchangeables, and derivatives as a type of hybrid instrument? Or would you call an instrument “hybrid” only if it, e.g., combines core elements of debt and equity at the same time?  I look forward to reading what you have to say on any of this.

The following announcement comes to us from Alicia Plerhoples (Georgetown).  The 14th annual transactional clinic conference will be held at UMKC School of Law in Kansas City, Missouri and the Ewing Marion Kauffman Foundation is serving as a host partner. Proposals are due by December 15, 2014 and more information about the conference is available after the break.

14TH ANNUAL TRANSACTIONAL CLINICAL CONFERENCE

CALL FOR PROPOSALS, PAPERS, & PANELISTS

Teaching and Writing Methods of the Transactional Clinician

This year’s conference theme is Teaching and Writing Methods of the Transactional Clinician. The conference will have two tracks: (1) a “Nuts & Bolts” Teacher Workshop and (2) a “Pen & Paper” Scholarship Workshop. The Planning Committee seeks proposals for (1) presentations, (2) papers, and (3) panelists as outlined below.   

Continue Reading 14th Annual Transactional Clinic Conference – April 24, 2015

928 days.

That’s how long we’ve been waiting for the SEC’s exemption for crowdfunded securities offerings.

The JOBS Act, which authorized the crowdfunding exemption, was signed by President Obama on April 5, 2012. The act required the SEC to enact the necessary rules within 270 days. The SEC has now missed that deadline, December 31, 2012, by 658 days.

To put it in context, when the JOBS Act passed, I had three grandchildren. I now have six. I may have great grandchildren by the time the SEC acts.

The 270-day deadline was unrealistic, given the time required to draft rules from scratch and the delay imposed by the notice-and-comment requirements of the Administrative Procedure Act. But the SEC finally proposed the rules on October 23, 2013, almost a year ago. The deadline for commenting on the proposal expired last February and the SEC still hasn’t done anything. It’s getting a little ridiculous.

I’m on record that the crowdfunding exemption passed by Congress is unlikely to be very useful. (See my article analyzing the JOBS Act’s crowdfunding provisions.) But we won’t know until we actually have a crowdfunding exemption. At the SEC’s current rate of progress, some new technology may have supplanted the Internet before that happens, and we’ll have to start all over again.

The Columbia Journalism Review blog reports:

Since 2008, one particular federal government agency has aggressively investigated leaks to the media, examining some one million emails sent by nearly 300 members of its staff, interviewing some 100 of its own employees and trolling the phone records of scores more.  It’s not the CIA, the Department of Justice or the National Security Agency.

It’s the Securities and Exchange Commission. …

All that effort was for naught. Despite the time and resources that have been poured into them, none of the SEC’s eight investigations in the past six years have uncovered the leakers.…

The article further points out that the SEC’s pursuit of leakers has ramped up in the wake of the financial crisis, and it has no problem with leaks (if you call them “leaks”) when the leaks make the agency look good.

The SEC’s argument is that it needs to protect against the release of market moving information, and I’m quite sympathetic to that point, but the leaks involved here seem to be at least in part about concealing internal problems or dissension within the agency.  

Considering how at least two Commissioners have recently spoken out about their dissatisfaction with the SEC’s enforcement efforts (not to mention the best SEC speech ever), I tend to be sympathetic to the argument that sunlight – or at least less intimidation – is in order.

(Also, if they can’t catch their own leakers…. )

256px-Alison_Lundergan_Grimes

(Photo courtesy of Wikimedia Commons, by Patrick Delahanty from Louisville, United States)

Alison Lundergan Grimes and I both graduated from Rhodes College, a small liberal arts college in Memphis, TN. I have not spoken to Alison since college, so I was surprised to see her mentioned on CNN a number of weeks ago as the democratic nominee for U.S. Senator from Kentucky. Since then, she has been in the news quite a bit. She will face Minority Leader Mitch McConnell, in what has turned into one of the hotter Senate races this year.    

Even in college I did not know Alison well, but we did take a public speaking class together. Alison was the type of student who was often in a suit and pearls in class, while I wore flip flops year-round and whatever wrinkled, Goodwill-purchased clothes were the most clean. She was a Chi Omega (easily the most refined group on campus), and I was a part of the football team for all four years (if there was a rowdier group on campus than the football team, it was the rugby club, which I joined because my playing time on the football team was minimal).

The public speaking class that Alison and I took together was definitely one of the most practical classes I took. Each student gave short speeches almost every day, and we were video-taped. We then watched and critiqued the videos as a class. Almost all of us had at least a few nervous habits, but we all appeared to break them after our nervous habits were seen on the screen and pointed out in front of the entire class. It was all quite embarrassing, but effective. I think there were only about a dozen of us in the class, which made this sort of personal attention possible. Our final exam was a presentation to an audience of 100 or more people, and our professor had lined up enough options for each of us, which must have taken a lot of time to organize. 

I had some opportunities to do public speaking in law school. I know those who competed in moot court and trial advocacy had even more opportunities, but I think we should try to give our students even more chances to hone their public speaking skills. Regardless of post-graduation job, almost all students will need public speaking skills, even if their audiences are small. I try to include student presentations in as many of my classes as I practically can.   

While we can all work public speaking into at least some of our classes, a required class fully dedicated to public speaking might be worthwhile. Do any law schools do this? I know public speaking is usually a part of a legal writing or litigation class, but I have not heard of a required course devoted specifically to public speaking.

Update: I should note that Alison is also legally trained. She is a graduate of American University’s Washington College of Law.

I plan to write a more traditional blog post later if I have time, but I am in the midst of midterm grading hell. I was amused today in class when a student compared the drama of the Francis v. United Jersey Bank case with the bankruptcy, bank, and mortgage fraud convictions of husband and wife Joe and Teresa Guidice from the reality TV hit the Real Housewives of New Jersey.

I had provided some color commentary courtesy of Reinier Kraakman and Jay Kesten’s The Story of Francis v. United Jersey Bank: When a Good Story Makes Bad Law, and apparently Mrs. Pritchard’s defenses reminded the student of Teresa Guidice’s pleas of ignorance. Other than being stories about New Jersey fraudsters, there aren’t a lot of similarities between the cases. Based on my quick skim of the indictment I don’t think that Teresa served on the board of any of the companies at issue–Joe apparently had an LLC and was the sole member, and the vast majority of the counts against the couple relate to their individual criminal conduct. In addition, Teresa is also going to jail, and no one suffered that fate in United Jersey. But luckily, she may see a big payday from a purported book deal and reality TV show spinoff after she’s out, possibly disproving the adage that crime doesn’t pay.