The Tulane Corporate Law Institute this year was unusually contentious, and that’s because a lot of corporate practitioners – defense side – were unhappy with a number of recent Delaware decisions.

Tornetta v. Musk made headlines because of the colorful personalities involved, but it actually rested on fairly commonplace, well-established Delaware standards of review.  More unsettling, I think, from the corporate bar’s perspective, were decisions like  Sjunde AP-Fonden v. Activision Blizzard (which I blogged about here), Crispo v. Musk (which I blogged about here), and West Palm Beach Firefighters’ Pension Fund v. Moelis & Co. (which I blogged about here), because those cases upset settled expectations of practitioners.  (VC Laster obliquely referred to some of the complaints in his decision denying interlocutory review in TripAdvisor: “Rule 42 does not invite a trial court to consider the level of media attention that a decision has received. That does not mean that the Delaware Supreme Court could not consider it. The justices might conclude that given the media attention and practitioner-driven stormlets over Delaware’s place in the corporate universe, Delaware’s highest court should weigh in. But that is not a consideration that Rule 42 instructs a trial court to take into account.”)

So it was in some sense unsurprising to see the Council of the Corporation Law Section of the Delaware State Bar Association immediately propose some legislative fixes.

Now, with the caveat that these proposals were just released, and I read them quickly, so I reserve the right to be totally wrong in my interpretation/analysis –

For Crispo, the proposal would make it possible for merger partners to specify that lost premium damages are available in the event of a broken deal, and further allow the target to create a shareholder’s representative who can seek lost premium damages on shareholders’ behalf (which, as I blogged, is something companies have sought to arrange through private ordering).

For Activision, the proposal allows boards to approve “substantially final” versions of merger agreements, especially if key terms are not included in the agreement but otherwise available to the board, and that disclosure schedules are not considered to be part of the merger agreement subject to board approval.

I don’t find either of these particularly controversial (though I can imagine classroom hypos that have fun with how far a disclosure schedule can go; it doesn’t strike me as a particularly precise term).  As I previously blogged, in Activision, the violation seemed rather technical in nature, and Crispo just seemed like there was a divergence between the formal requirements of common law contract doctrine and the purposes a merger contract is meant to serve.

It’s the Moelis amendment that’s a bit more striking.  Proposed DGCL §122(18) would allow corporations to:

Make contracts with one or more current or prospective stockholders (or one or more beneficial owners of stock), in its or their capacity as such, in exchange for such minimum consideration as determined by the board of directors (which may include inducing stockholders or beneficial owners of stock to take, or refrain from taking, one or more actions). Without limiting the provisions that may be included in such contracts, the corporation may agree to: (a) restrict or prohibit itself from taking actions specified in the contract, whether or not the taking of such action would require approval of the board of directors under this title, (b) require the approval or consent of one or more persons or bodies before the corporation may take actions specified in the contract (which persons or bodies may include the board of directors or one or more current or future directors, stockholders or beneficial owners of stock of the corporation), and (c) covenant that the corporation or one or more persons or bodies will take, or refrain from taking, actions specified in the contract (which persons or bodies may include the board of directors or one or more current or future directors, stockholders or beneficial owners of stock of the corporation). With respect to all contracts made under this subsection, the corporation shall be subject to the remedies available under the law governing the contract, including for any failure to perform or comply with its agreements under such contract.

In conjunction with this amendment, there’s a new change to DGCL §122(5), as underlined:

Appoint such officers and agents as the business of the corporation requires and to pay or otherwise provide for them suitable compensation; provided that any contract or other appointment or delegation of authority that empowers an officer or agent to act on behalf of the corporation shall be subject to § 141(a) of this title, to the extent it is applicable.

According to the Richards, Layton & Finger memo on the proposed changes, Moelis only held that contractual restrictions on the board’s authority must be contained in preferred shares rather than a separate contract; therefore, these amendments to the DGCL would not substantively affect the extent to which the board can contract out its authority.  Rather, they only have the effect of allowing boards to use ordinary contracts, rather than preferred shares, to make those arrangements.

I am not sure that is an accurate interpretation of Moelis.  VC Laster seemed to leave open the question how far a preferred share issuance could restrict board authority; in footnote 19, he wrote:

Moelis may not be able to get everything he wanted. Even a charter provision cannot override a mandatory feature of the DGCL….This court has indicated that some restrictions on board action could be invalid even if they appear in the charter….Some transactions, like mergers, require a specific sequence of events in which the board initiates action, then the stockholders vote.  It is unclear whether a charter provision could require a stockholder’s pre-approval, before the board could act….Regardless, those issues are for another day….

So as I read it, Moelis actually touched upon a couple of different issues.  The first was, how much can corporate governance be privately ordered in a personal contract/stockholder agreement, rather than in a corporate charter (including preferred share classes)?  The second was, what are the fundamentally nondelegable functions of a corporate board, that cannot be restricted at all?

These are both unsettled questions because, usually, if you want that much tailoring, you either form a close corporation or – more likely these days – an LLC.

But proposed Section 122(18) blows past all that – not only does it allow for stockholder agreements to contain the kinds of governance rights previously associated with preferred shares, but it also does not seem to place any limits on the kinds of rights that can be given to stockholders directly in the first place.

We could ask why it matters whether a restriction appears in a stockholder agreement rather than a preferred share issuance.  The most obvious is, if it’s a private company, the stockholder agreement may not be known to the public or even other investors.  And even in a public company, stockholder agreements may be more easily amended than preferred share terms (though I imagine at least some of that difference could be mitigated with careful drafting regarding procedures for amendment of the preferreds).

But I think the broader question is the more interesting one: how much authority must a Delaware corporate board retain?  Or, where is the actual line between a corporation and an LLC?  Or, more generally, whether Delaware is going to be so firmly committed to private ordering in the corporate context that it functionally eliminates the distinction between the two.

And that just begs the question whether we really do need the two forms, or whether instead we should just have “the firm” which is a set of defaults that can be altered by the parties.

(Yes, yes, I know LLCs are taxed differently than corporations, but that’s an IRS choice. It can decide separately which governance arrangements stray so far into the LLC territory that the firm should be taxed like an LLC.  Certainly, I don’t see any reason the label – and not the actual governance arrangements – should drive the taxation determination.)

One major argument in favor of keeping the corporate form “pure” is network benefits.  It’s easier for investors when there’s a basic governance arrangement that’s stable across firms, and that way they can focus on analyzing the substantive nature of the business when making investment decisions.  Writing in 2013, Michael Klausner pointed out that IPO charters demonstrate very little customization, which he took as evidence of the value of these network effects.

I genuinely wonder if that same result would be found today.  Increasingly, companies are going public with shareholder agreements, byzantine multiple-class share structures, forum selection clauses, corporate opportunity waivers – and that doesn’t even count all the private companies with impenetrably complex governance and cash flow rights.

Does that suggest the network effects of the corporate form are overstated?  That’s the challenge that the proposed Section 122(18) poses.

And of course it goes further.  I have written about (and written about) the unsettled definition of what it means to be a controlling stockholder; allowing shareholders complete freedom to take on these kinds of governance powers demands a determination of when the powers are so overweening that the shareholder becomes a fiduciary.  Unless we want to make fiduciary obligations in this context waivable as well – which again brings the corporate form closer to the LLC.

One of the odder things about the proposed legislation is that the amendments to DGCL §122(5) recognize there must be some inherent powers in the board, that cannot be delegated to someone acting on the company’s behalf – like an officer.  This, presumably, is how you reconcile proposed §122(5) with proposed §122(18) – a stockholder, exercising rights under an agreement, is not acting on the corporation’s behalf, and therefore the §141(a) limits do not apply.

But think about the situation in Moelis itself.  There, the stockholder was Ken Moelis, who was also CEO, and also Chair of the Board.  He certainly, by virtue of the stockholder agreement, was a controlling shareholder.  If he exercised his rights under the agreement, would he be acting in his private capacity, or on behalf of the company?  And if on behalf of the company, does that mean §122(5) would kick in, preventing the board from delegating away its §141(a) power?  I’m very confused.

Also, by the way, there’s the bit about remedies.  The Richards, Layton & Finger memo on the proposed changes has this curious comment:

While the plain language of the new subsection would appear to give the board the power to bind the corporation to take fundamental action, such as approving a merger, at the direction of a stockholder, the real-world operation of any provision included in a stockholders’ agreement will be much more limited.  Although an agreement adopted pursuant to new Section 122(18) may require a corporation to cause fundamental action to be taken, nothing in the statute expressly provides that individual directors may be parties to the agreement and expressly bound thereto in their directorial capacities.  For example, fashioning a remedy for a corporation’s failure to cause a merger to occur as required by a stockholders’ agreement due to the failure of stockholders to adopt the merger agreement likely would involve consideration of the principles of preclusion and coercion applicable to termination fees.  While new Section 122(18) recognizes that a stockholder may receive damages if the corporation fails to cause a contractually specified event to occur, the amount of any such damages will be constrained, in most cases involving fundamental corporate actions, by equitable principles.  For example, fashioning a remedy for a corporation’s failure to cause a merger to occur as required by a stockholders’ agreement due to the failure of stockholders to adopt the merger agreement likely would involve consideration of the principles of preclusion and coercion applicable to termination fees.

Actually, the amendment says that any remedies may be available under the law governing the contract.  Nothing in that language would prohibit equitable remedies where available, like specific performance, and courts enforce specific performance obligations against corporations all the time, including where board action (like completing a merger) is required.  I agree that matters requiring a stockholder vote will still require one, but the drafting of 122(18) does not on its face prohibit an order requiring the board perform its own obligations under the agreement.

Instead, the synopsis to proposed 122(18) says:

New § 122(18) does not authorize a corporation to enter into contracts with stockholders or beneficial owners of stock that impose remedies or other consequences against directors if they take, or fail to take, specified actions as required by the contract or that purport to bind the board of directors or individual directors as parties to the contract. Contracts that would impose such remedies or consequences on directors or that would bind directors as parties are subject to existing law. Abercrombie v. Davies, 123 A.2d 893 (Del. Ch. 1956); Chapin v. Benwood Foundation, Inc., 402 A.2d 1205 (Del. Ch. 1979). Instead, new §122(18) authorizes contracts that impose remedies only against the corporation, including as a result of any failure by the corporation, its board of directors, or its current or future directors, stockholders or beneficial owners of stock, to take, or refrain from taking, actions specified in the contract. If an action addressed in a covenant by the corporation requires director or stockholder approval under title 8, that approval must still be obtained in order to effect the action pursuant to title 8. For example, the lack of stockholder approval of an action under title 8 requiring such approval would render specific performance of the covenant unavailable. Moreover, as noted below, even the enforceability of a claim for money damages for breach of the covenant may be subject to equitable review if the making or performance of the contract constitutes a breach of fiduciary duty.

Notice how this says specific performance is not available if stockholder approval is required but lacking?  It conspicuously does not say specific performance is unavailable if only board action is required.  So I am not at all certain how the remedies section of the proposed law squares with the claim that it would not change existing cases like Abercrombie, which holds that stockholder agreements may not significantly limit the ability of directors to exercise their judgment on matters of corporate policy.

I’ll go further – I keep beating this drum about choice of law (wrote a whole paper about it).  Stockholder agreements are subject to ordinary choice of law principles, and proposed §122(18)’s reference to “the law governing the contract” apparently plans to keep it that way.  Which means, we get the possibility of a California law, or Texas law, or whatever other state law, determination of whether specific performance is required.  That sounds … very coherent.

Anyway, the Delaware Supreme Court has increasingly insisted that corporations are just contracts so now we’re really reaching put up or shut up time.  Is there anything left for the corporate form to do?  Or should we all just be teaching the law of the firm?

Dear BLPB Readers:

On April 4, 2024, at 11:30am EST, the American Bar Association’s Banking Law Committee’s New Members Subcommittee will host “A 30-minute in-person and zoom meeting of the Banking Law Committee’s New Members Subcommittee” to discuss the business of banking and careers in banking law.  It’s a free program for ABA members and ABA membership is free for law students!  Here is a flyer with complete details: Download Promo for April 4 ABA session on banking law and careers 

A recent decision from Judge Andrew S. Hanen of the Southern District of Texas found that a pump and dump scheme could not be prosecuted as wire fraud.

I’m trying to wrap my head around it and struggling.  It seems to find that the government could not prosecute a pump and dump scheme because the defendants only wanted to make money and did not want to deprive any specific people of money or property.  The mere fact that the pump and dump scheme occurred through a market and not in direct personal transactions seems to have driven the decision.

Bloomberg’s Matt Levine has covered it.  It also made CNN.  

Notably, the indictment even includes statements that the Defendants said things like “we’re robbing … idiots of their money.”

I have literally no idea if this is correct, I’m putting it forward as a set of facts that I think demonstrates the very complicated era we’re in from a corpgov perspective.

Ike Perlmutter was fired from Disney.  It’s very well known that he generally opposed attempts to diversify the MCU.

Nelson Peltz has teamed with Ike Perlmutter in his Disney proxy contest.  Nelson Peltz is a Trump supporter.  He’s also friends with Elon Musk, who has increasingly become a right wing culture warrior.

Disney has long been in the crosshairs of the right.  We all know about the fight with DeSantis and Don’t Say Gay; we also know that a Disney shareholder accused the company of abandoning shareholder value in order to promote a political agenda.

Elon Musk is furious about Disney pulling ads from ex-Twitter, and has openly criticized Disney’s diversity priorities.  He’s even bankrolling a suit by Gina Carano, alleging that Disney discriminated against her due to her conservative politics.

Bill Ackman has also criticized Disney for pulling ads from Twitter, specifically connecting that decision to the proxy fight with Peltz, and arguing that Peltz can right the ship.  

ISS is also a right wing target, on accusations that it recommends in favor of “woke” corporate governance instead of sticking to shareholder value.

ISS – I have to assume responding to this complaint – is creating a new “ESG skeptic” voting template, to go along with its other templates like Climate, Catholic, and SRI.

Glass Lewis recommended that shareholders vote for the Disney slate, against Nelson Peltz.  The Wall Street Journal recently published a fairly searing indictment of Peltz’s Trian fund.  And Jeffrey Sonnenfeld of the Yale School of Management, along with Steven Tian of the Yale Chief Executive Leadership Institute, argue that Trian has destroyed value at the companies where Peltz has won board seats.  

ISS just recommended in favor of Peltz in his bid for a Disney board seat.

I have no idea if ISS’s recommendation had anything to do with politics.  Certainly, it offered very plausible reasons for backing Trian, and the proxy fight itself does not involve (explicit) political accusations either way, notwithstanding Ackman’s hints.

But everything surrounding corpgov is so politicized these days that it’s impossible not to ask whether ISS thought that endorsing Peltz would help mitigate some of the right wing criticism.

I guess my point is, whether it’s a sign of the times or not, it is very hard to evaluate shareholder value in a manner that’s divorced from the political environment.  In the end, companies make money by appealing to popular tastes.  Politicians have every incentive to insist that their side is the “popular” one, and therefore that any appeals to other audiences must be unpopular, and therefore unprofitable.  Profitability is now a proxy for political popularity.  And when politicians threaten to legislate those preferences – functionally a legal dictate as to what is and is not profitable – we can’t tell if corporate actors are responding to the regulatory threats or their own independent judgment.

Edit 3/23: Remember how I said the fight does not involve (explicit) political accusations? Turns out, not so much: ‘Why do I need an all-Black cast?’ Disney criticizes Peltz remarks

Please note that the deadline for submission of proposals for the National Business Law Scholars Conference has been extended to April 1!  The revised Call for Papers follows.  I hope to see many of you there.

+++++

 National Business Law Scholars Conference (NBLSC) 
June 24-25, 2024 
Call for Papers 

The National Business Law Scholars Conference (NBLSC) will be held on Monday and Tuesday, June 24-25, 2024, at The University of California, Davis School of Law. 

This is the fifteenth meeting of the NBLSC, an annual conference that draws legal scholars from across the United States and around the world. We welcome all scholarly submissions relating to business law. Junior scholars and those considering entering the academy are especially encouraged to participate. If you are thinking about entering the academy and would like to receive informal mentoring and learn more about job market dynamics, please let us know when you make your submission. 

Submission Guidelines: 

Please fill out this form to register and submit an abstract by Monday, April 1, 2024. Please be prepared to include in your submission the following information about you and your work: 

• Name 
• E-mail address 
• Institutional Affiliation & Title 
• Paper title 
• Paper description/abstract 
• Keywords (3-5 words) 
• Dietary restrictions 
• Mobility restrictions 

If you have any questions, concerns, or special requests regarding the schedule, please email Professor Eric C. Chaffee at eric.chaffee@case.edu. We will respond to submissions with notifications of acceptance a few weeks after the submission deadline. We anticipate the conference schedule will be circulated in late April. 

Conference Organizers: 

Afra Afsharipour (University of California, Davis, School of Law) 
Tony Casey (The University of Chicago Law School) 
Eric C. Chaffee (Case Western Reserve University School of Law) 
Steven Davidoff Solomon (University of California, Berkeley School of Law) 
Benjamin Edwards (University of Nevada, Las Vegas Boyd School of Law) 
Joan MacLeod Heminway (The University of Tennessee College of Law) 
Nicole Iannarone (Drexel University Thomas R. Kline School of Law) 
Kristin N. Johnson (Emory University School of Law) 
Elizabeth Pollman (University of Pennsylvania Carey Law School) 
Jeff Schwartz (University of Utah S.J. Quinney College of Law) 
Megan Wischmeier Shaner (University of Oklahoma College of Law) 

Sometimes, the scholarly enterprise offers one the opportunity to deeply learn while sharing embedded knowledge.  I never thought that my 2022 Southeastern Association of Law Schools discussion group on Elon Musk and the Law would turn into such a rich learning experience.  But it did.  

In organizing the group, I knew folks would focus on all things Twitter (especially as the year proceeded).  But because of the kind offer of the Stetson Law Review to host a symposium featuring the work of the group and publish the proceedings, I was able to dig in a bit deeper in my work, which focused on visioning what it would be like to represent Elon Musk.  The resulting article, “Representing Eline Musk,” can be found here.  The SSRN abstract follows.

What would it be like to represent Elon Musk on business law matters or work with him in representing a business he manages or controls? This article approaches that issue as a function of professional responsibility and practice norms applied in the context of publicly available information about Elon Musk and his business-related escapades. Specifically, the article provides a sketch of Elon Musk and considers that depiction through a professional conduct lens, commenting on the challenges of representing or working with someone with attributes and behaviors substantially like those recognized in Elon Musk.

Ultimately (and perhaps unsurprisingly, for those who have followed Elon Musk’s interactions with the law in a business setting), the article concludes that representing Elon Musk or one of his controlled businesses would be a tough professional assignment, raising both typical and atypical professional responsibility issues. Taking on an engagement in which Elon Musk is the client or a control person would require deliberate lawyer leadership, including (among other things) patience, mental toughness, and empathy. As a result, the lawyer would be required not only to have the required legal expertise, sensitivity to professional conduct regulation, and practical experience to carry out the representation, but also to understand and know how to employ their talent, personality, character strengths, and leadership style in a demanding and mutable lawyering context.

The well-considered comments of so many folks helped to move this work along.  While my author footnote mentions some, it could not mention all.  As I thought through issues of client wealth, power, mental health, and neurobiological status, those who know more than I–personally and professionally–were essential to my assessments. 

I know that there is a lot more that can (and should) be written on representing clients in the varied lot of personal circumstances that life presents.  I hope that I presented my thoughts in this piece in a way that is sensitive to the myriad issues involved in describing and considering client attributes and conditions.  I also hope this work will encourage more reflection and writing on related issues.

On March 12, Chancellor McCormick issued a revised appraisal opinion in HBK Master Fund v. Pivotal Software, amending her calculations to award the petitioners 44 cents above deal price, rather than 17 cents below, as she had originally.  

But I somehow missed the original opinion, so my first read was the amended one.  Forgive me if this is old hat by now, but it was new to me, so.

The case involved a buyout of Pivotal by its sister company, VMWare, both controlled by Dell Technologies.  That raised the question whether the use of MFW procedures required deference to the deal price, in the same way it does in other kinds of appraisal actions.  Chancellor McCormick held no, because, critically, with a controlling shareholder, there can be no real market test – there are no other potential bidders, and even the shares themselves may trade at a discount to reflect the controller’s ability to extract rents.  Thus, the underpinning of cases like Dell v. Magnetar, 177 A.3d 1 (2017), is absent.

But that’s actually not what stood out to me. 

As is the usual course with these things, Chancellor McCormick began with a standard discussion of the process by which the deal was negotiated.  Along the way, she singled out the conduct of Marcy Klevorn, who was one member of a two-person Pivotal special committee, and who also held positions at Ford.  Here is what McCormick said:

Around this time, the Pivotal Special Committee decided not to canvas the market for other potential bidders….

One of the two Pivotal Special Committee members, Klevorn, was missing in action through much of this process.

  • She missed the October 8, 2018 Board meeting. She later testified that her absence was likely due to separate duties at Ford.
  • She missed the January 28, 2019 Board meeting.112 Klevorn testified that she was “probably traveling[.]”
  • She arrived late to the March 15, 2019 Board meeting. She could not recall why.
  • She missed the March 22, 2019 Board meeting. She could not recall why.
  • She left early from the April 9, 2019 Board meeting due to a “prior engagement[.]” At this meeting, Lankton provided an update to the rest of the Board on the merger.

So, through April 2019, Klevorn missed, was late for, or left early from each Pivotal Board and Special Committee meetings. Klevorn testified that being on the Pivotal Special Committee was “a lot of work and I don’t know, to be honest, how I felt about it at the time.”

…

The Pivotal Special Committee met on July 31, 2019. Klevorn joined the meeting late because she was busy with a meeting at Ford.

…

The next day, the Pivotal Special Committee held a meeting to decide whether to counteroffer, accompanied by Morgan Stanley, Mee, and other members of Pivotal leadership.  Klevorn attended, reluctantly. A few days prior, Klevorn’s assistant asked her if she could attend that meeting from 5:30 p.m. to 7:00 p.m. Klevorn responded, “[u]gh. Was planning to do a bunch of returns at [S]omerset. I thought it was at 2???” After her assistant responded about the timing, Klevorn replied, “[l]ife ruiner. Ok.”

On August 14, 2019, the VMware Special Committee made what it termed a “best and final offer” of $15.00 per share.  The Pivotal Special Committee held a meeting to consider it; Klevorn was absent.

Oof.

Did Klevorn’s neglect have a bearing on the outcome?  Reader, it did not.  After McCormick explained why MFW procedures could not cleanse the transaction, she pretty much moved on from any discussion of this particular process, except to briefly note that Klevorn’s absence called into doubt certain base projections – which McCormick ended up accepting anyway.  (Op. at 88-89).  Sure, I suppose Klevorn’s conduct could have had some kind of influence on McCormick’s thought process, but if so, it’s not explicit in the opinion.

Why am I mentioning this? 

Because a while ago, Edward Rock argued that Delaware’s courts operate more through parables of “good” and “bad” boards, reputational sanctions, and public shaming, than through actual interference with business decisions.  And though I can think of a certain billionaire, now 25% poorer, who might disagree with that assessment, McCormick’s somewhat gratuitous swipes at Klevorn (“life ruiner”) would seem to bear out the thesis.

If you don’t want to serve on a special committee, don’t do it.  At the very least, don’t put it in an email/text.

For a long time, compensated non-attorney representatives (NARs) have been a blight on FINRA’s securities arbitration forum.  PIABA released a report highlighting problems with these groups in 2017.  After considering the issue, FINRA moved to largely ban non-attorneys from representing investors in securities arbitration.  The proposed rule change expressly permits law school clinics or their equivalent to continue to appear on behalf of investors.  The proposal was even approved by the SEC’s Division of Trading and Markets on January 18, 2024 pursuant to its delegated authority. 

Despite the lack of any opposition in the comment file, an unknown SEC Commissioner blocked the rule from going into effect under “Rule 431 of the Commission’s Rules of Practice” on January 19, 2024.  That rule provides that:

An action made pursuant to delegated authority shall have immediate effect and be deemed the action of the Commission. Upon filing with the Commission of a notice of intention to petition for review, or upon notice to the Secretary of the vote of a Commissioner that a matter be reviewed, an action made pursuant to delegated authority shall be stayed until the Commission orders otherwise. . . .

As it stands, the change has been indefinitely delayed.  Compensated NARs cause problems for investors because they operate in lieu of attorneys without being bound by the ethical constraints governing attorneys.  As one comment letter explained, this ethics gap leads to major problems.  The NARs charge non-refundable up-front fees and settle cases without client approval.  St. John’s Securities Arbitration Clinic has filed multiple letters in support of addressing this problem.  As a 2017 letter from St. John’s explained:

NARs are not governed by the same constraints governing attorneys. Most notably, there are no ethical rules limiting the conduct of the NARs. Individuals who fail to receive competent representation from an NAR may have no recourse.

If an incompetent attorney botches a case, the client has a claim for malpractice.  When an incompetent NAR does the same, the client cannot bring a professional malpractice claim because the NAR owes no professional ethical duties.

Hopefully, the SEC will allow the rule change to go into effect.

Dear BLPB Readers,

I wanted to share that the Journal of Financial Market Infrastructures (where I’m an Associate Editor), in addition to the Bank for International Settlements Innovation Hub, and Quinan & Associates will host a seminar, The Evolution of Financial Markets: Digital Money and Atomic Settlement, on March 19th.  It will be on the early side for those in the U.S., but it looks really interesting!  A pdf flyer of the event is below.  

Download Joint-Seminar-Agenda-Flyer