The Western Academy of Legal Studies in Business (“WALSB“) Annual Conference will be held in Monterey, CA on March 28-29, 2014.

WALSB president-elect Lydie Pierre-Louis (San Fransisco) provided the information below about the conference:

Invitation:

You may choose to present a scholarly paper (for academics), organize or serve on a panel, or give a presentation on any topic of interest to academics or practitioners in the field of business law (for practitioners).  Registration fee includes a cocktail reception on Friday for registrants and guests, breakfast and light lunch on Saturday for registrants, and a digital copy of the proceedings.  CA CLE is available.

Participation:

Please complete and submit the registration form to our conference program chair, Lydie Pierre-Louis, at lnpierrelouis@usfca.edu.  If you wish to be placed on the program for presentation at the conference, please submit your registration by March 14, 2014. We will receive a confirmation.

Continue Reading WALSB Annual Conference │ Monterey, CA │ March 28-29, 2014

Holly Gregory has a useful post entitled Governance Priorities in 2014 on the Harvard Law School Forum on Corporate Goverance and Financial Regulation.  (As a side note, I was surprised to learn that Holly Gregory, who had been a partner at one of my former firms (Weil Gotshal), had left for Sidley Austin.  This is a huge loss for Weil as she is widely regarded as one of the country’s top corporate governance attorneys).

Go to the link above for the entire post, but the opening few paragraphs are posted below:

As the fallout from the financial crisis recedes and both institutional investors and corporate boards gain experience with expanded corporate governance regulation, the coming year holds some promise of decreased tensions in board-shareholder relations. With governance settling in to a “new normal,” influential shareholders and boards should refocus their attention on the fundamental aspects of their roles as they relate to the creation of long-term value.

Institutional investors and their beneficiaries, and society at large, have a decided interest in the long-term health of the corporation and in the effectiveness of its governing body. Corporate governance is likely to work best in supporting the creation of value when the decision rights and responsibilities of shareholders and boards set out in state corporate law are effectuated.

This article identifies and examines the key areas of focus that institutional investors and boards should prioritize in 2014.

As my wife, kids, and friends will tell you, I sometimes rant about grammar. I’m going to do that now, so excuse yourself now if that kind of thing bothers you.

Don’t worry. I’m not going to lecture you on splitting infinitives or beginning sentences with conjunctions (neither of which is improper, by the way, but never mind . . . ). My latest concern is not a technical grammatical point, but a simple question of proper English usage.

The past tense of the verb “lead” is spelled “led,” not “lead.”

Napoleon leads the troops into battle. (Present tense)

Napoleon led the troops into battle last week. (Past tense). NOT Napoleon lead the troops into battle last week.

People seem to be using “lead” as the past tense more and more. I have seen it not just in student drafts and blog posts, but in newspapers, books, and other sources edited by people who ought to know better. I’m not sure what the problem is; perhaps people are analogizing to the verb “read.” The present tense and past tense of that verb are the same. Or perhaps they are comparing it to the element “lead,” which is also pronounced “led.”

Whatever, the reason, it’s not proper English.

CALI, the Center for Computer-Assisted Legal Instruction, holds an annual Conference for Law School Computing that brings together law professors, law librarians, educational technologists, I.T. directors, and others interested in the application of technology in legal education and the law generally. Attendees range from hard-core techies to unsophisticated neophytes looking for new ideas. I have attended several of these conferences and have always found them informative and enjoyable. (Full disclosure: Until recently, I was a member of CALI’s Board of Directors.)

This year’s conference is June 19-21, at Harvard Law School. That’s in Cambridge, Mass., for those who haven’t heard of the school. (Harvard is my alma mater, but they have encouraged me not to tell anyone.) If you’re a lawyer or law professor interested in bringing legal education or the legal profession into the 21st century, or even if you would settle for bringing it into the late 20th century, this is a great conference.

In addition, if you have an idea for a presentation, I would encourage you to submit a proposal. Unlike many conferences, presentations are not limited to invited speakers. Anyone may submit a proposal. Just follow this link, create an account, and click on the “Propose a Session” link. The deadline is April 4, 2014. One benefit if your proposal is accepted: your conference registration fee is only $95.

Tamara Belinfanti recently posted “Shareholder Cultivation and New Governance” on SSRN.  Here is the abstract:

Several formal proposals have been made to address shareholder short-termism and speculative behavior. These include the imposition of a financial transaction tax, changes to the U.S. capital gains tax rate, and the adoption of an Investor Stewardship Code in the United Kingdom. This Article reverses the focus from looking to top-down solutions to looking at bottom-up grass root solutions that corporations can employ, and in some cases do already employ to achieve substantially the same effect of rewarding certain types of shareholder behavior while dissuading others — a process I refer to as “Shareholder Cultivation.” While many of the techniques and strategies discussed in this Article are not new and in fact many have been used by companies and investor relation professionals for years, the Article is the first to conceptualize a prescriptive framework for assessing which techniques and strategies should be allowed. Additionally, the Article utilizes new governance theory to examine the concept of Shareholder Cultivation with a fresh lens: as a corporate governance benefit.

Hello, everyone.  Stefan put out a call for reasonable facsimiles of business law professors, and I figured I fit the bill.  I’m a Visiting Assistant Professor at Duke Law, currently teaching Securities Litigation.  I’ve arrived here directly from practice: For the past 11 years, I’ve worked as a plaintiff-side securities litigator.

(On my first day of class, I asked how many of my students had done securities litigation work, perhaps as summer associates.  Almost every hand went up.  Then I asked how many had worked plaintiff-side.  The hands went down so quickly I swear I heard whooshing noises.  To be fair, there was one student who’d done plaintiffs’ work – outside the US.)

Anyway, like anyone teaching securities litigation these days, there’s one thing on my mind: Halliburton, where the Supreme Court is being asked to overrule Basic Inc v. Levinson, the case where it endorsed the fraud on the market presumption of reliance for claims brought under Section 10(b) of the Securities Exchange Act.

There’s been a lot of chatter about the possibility that if Basic is overruled, plaintiffs may, in some instances, still be able to obtain a presumption of reliance under Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972) – many of the Halliburton parties and amici seem to assume this is the case, and it’s come up in the blogosphere.

Affiliated Ute holds that when a fraud consists of material omissions rather than affirmative misstatements, reliance may be presumed.

The problem that often seems to be overlooked, though, is that the Affiliated Ute presumption is rebuttable – and specifically, it’s rebuttable upon a showing that disclosure would not have made a difference, because the plaintiff never read the document in which the omission is contained.  See Eckstein v. Balcor Film Investors, 58 F.3d 1162 (7th Cir. 1995); Shores v. Sklar, 647 F.2d 462 (5th Cir. 1981).

Given that, I don’t see how much of a role it can play with respect to substituting for Basic.  Defendants’ obvious ability to rebut the presumption with respect to wide swaths of the class should be enough to defeat class certification.  This is not to say that defendants’ rebuttal arguments should be entertained at class certification; the point is that there will be so many individualized differences among class members regarding what they read or did not read that class certification would usually be inappropriate, just as in any other non-fraud-on-the-market case where a defense applies differently to a significant number of class members (though there is authority the other way, see In re Smith Barney Transfer Agent Litig., 290 F.R.D. 42 (S.D.N.Y. 2013)).

But then I have a long train of speculation as I imagine how this might play out….

[More after the break]

Continue Reading A reasonable facsimile thereof

Recently, I completed reviewing my mid-course student evaluations. 

I have found mid-course evaluations to be quite valuable.  As a student, I remember wishing we had mid-course evaluations so that my comments could be used to improve our class, rather than merely helping the professor improve the course for the next batch of students. 

The mid-course evaluation gives students a chance to voice concerns, anonymously, relatively early in the course.   While professors quickly learn that is likely impossible to please all of their students—some students love the exact same thing that other students hate—trends in mid-course evaluations can alert professors to potential issues and give time to make modifications before the end of the semester.   

Mid-course evaluations can also be used as a teaching tool—modeling the proper way to seek and evaluate advice.  The class period after I administer the mid-course evaluation, I take a few minutes to explain to the class what (if any) changes I plan to make on their advice and why I chose not to follow some of their advice (for example, even if a number of students dislike group work, I explain why we are going to continue with some group exercises).  The students may not agree with my reasonsing, but they seem to appreciate the explanations.    

The mid-course evaluations only take a total of about 10 minutes of class time (5 minutes for the students to fill out the sheets and 5 minutes to review in the next class).  I simply ask: What is working well? What is not working well? Other comments?  Every semester I get some students complaining about how difficult the course is and other “I don’t want to eat my vegetables” comments, but I also usually get some useful information. 

For those of you who don’t already do mid-course evaluations, I suggest giving it a try.   

I typically leave introductions to the bloggers themselves, but let me just say that we here at the BLPB are very much looking forward to having Ann Lipton guest blog with us for the next four weeks.  Professor Lipton is currently at Duke Law, and her primary focus is on federal securities regulation and complex civil litigation.  You can find her full profile here.  Welcome, Ann!

From an e-mail I received from the production manager of The Business Lawyer:

The Editorial Board of The Business Lawyer is soliciting submission of articles and essays for Volumes 69 and 70. TBL is the flagship scholarly journal of the American Bar Association  Section of Business Law. It reaches 40,000 readers on a quarterly basis. Authors must submit exclusively to the journal and submissions are peer-reviewed. We generally give authors a response in about two weeks. TBL provides a good forum to reframe scholarly articles published elsewhere for an audience of judges and practitioners. Past authors include Lucian Bebchuk, Barbara Black, Bernie Black, Starvros Gadinis, Joe Grundfest, Henry Hu, Roberta Karmel,  Jonathan Lipson, Vice Chancellor Leo Strine, Guhan Subramanian, and former Chief Justice of the Delaware Supreme Court Justice Norman Veasey.

Articles should be submitted to Diane Babal, Production Manager, at diane.babal@americanbar.org. Questions about submissions can be addressed to Associate Editor-in-Chief, Professor Gregory Duhl, at gregory.duhl@wmitchell.edu

Update: I am told that submitted articles should be between 20 and 100 double-spaced pages, including footnotes. 

Last night I attended a forum organized by the Ladies Empowerment and Action Program (LEAP). The panel featured female entrepreneurs from the culinary industry.  Some were chefs, some owned restarurnts, some sold products, and others blogged and educated the public, but their stories were remarkably similar. They told the audience of business students and budding entrepreneurs that they generally didn’t like partners, were wary of investors because they tended to exert too much control over their vision, and that they wished that they had better financial advisors who cared about them and understood their business.  

One panelist, who had received $500,000 in capital from an investor, indicated that she was glad that she had been advised to enter into her contract as though she may end up in litigation.  As a former litigator who now teaches both civil procedure and business associations, I both agree and disagree with that advice.  As a naïve newbie litigator in a large New York firm, I used to joke with the corporate associates that the only reason I needed to understand how their deals were done was so that I could understand how to defend them went they fell apart and the litigation ensued. Now that I am older and wiser I try to focus my students on considering an exit strategy of course, but also on how to ask the right questions so that the parties never have to consider litigation.

Many of my students will likely advise small and midsized businesses as well as large corporations and that’s part of the reason that I stress the importance of a baseline level of understanding of finance and accounting. But how will we prepare them to counsel entrepreneurs who may not see the value in partners or understand how startup capital works?  Perhaps that’s not the job of a lawyer but if the issue comes up, will our graduates know how to provide balanced arguments for  their clients? How will we prepare our students to add value so that accountants don’t provide the (potentially wrong) legal advice to these entrepreneurs or so that their clients don’t just turn to LegalZoom, which reportedly sets up 20% of the LLCs in California? In essence, how do we teach our students to think like business people and lawyers?

Although clinics where students advise entrepreneurs or small businesses are expensive, and skills-based transactions courses aren’t as plentiful as they should be in law schools, these are good starts. I currently try to integrate drafting, negotiation and role-play into my classes when appropriate, but would welcome additional ideas that work.