Over at The Volokh Conspiracy, Jonathan Adler has posted “Does West Virginia v. EPA Doom the SEC’s Climate Disclosure Rule?” Here is a brief excerpt:

One regulatory proposal sure to get additional scrutiny in the wake of WVA v. EPA is the Security and Exchange Commission’s proposal to “enhance and standardize climate-related disclosures for investors.” In today’s Wall Street Journal, former SEC Commissioner Paul Atkins and former OIRA Administrator Paul Ray make the case that the SEC’s proposal is likely to be struck down in light of the WVA decision. According to Atkins and Ray, the SEC is seeking to repurpose pre-existing statutory authority to address a new concern outside of the SEC’s core expertise. In other words, it is seeking to pour new wine out of old bottles, and this is something the Court rejected in WVA (as well as in its decision invalidating the OSHA test-or-vax mandate)….

More broadly, WVA v. EPA and NFIB v. Dept. of Labor suggest that the Court is likely to be skeptical of the Biden Administration’s “whole of government” approach to climate change insofar as it involves deploying statutory authority that was not enacted with climate change in mind…. [T]he Court is wary of agencies repurposing existing statutory authority without congressional approval. This creates a serious obstacle for climate measures that are not authorized by Congress.

The following comes to us from Paul Rose.

The Ohio State University Moritz College of Law seeks candidates for two tenure-track positions. We are seeking a junior to mid-career lateral candidate for a position in the area of Tax Law or in both Business and Tax Law, and an entry-level candidate with interdisciplinary teaching and scholarship interests related to race and criminal justice.

The Ohio State University Moritz College of Law is committed to building and maintaining a diverse and inclusive community to reflect human diversity and improve opportunities for all. Diversity, inclusion, and equity are essential to the excellence of our community, culture, and curriculum, and the pursuit of this excellence is critical to our educational mission. We value diversity in all of its dimensions, including gender, gender identity or expression, race, ethnicity, religion, age, sexual orientation, physical and learning abilities, socioeconomic status, veteran status, and viewpoint. We seek to reflect multiple perspectives, backgrounds, and interests in all facets of our community. The Ohio State University is committed to equal employment opportunity and does not discriminate on any basis prohibited by law in its activities, programs, admission, and employment. All qualified applicants will receive consideration for employment without regard to a protected status.

Candidates should send a cover letter, including a statement of work they have done to promote diversity and inclusion, and C.V. to Paul Rose by email (rose.933@osu.edu). Applicants are encouraged to submit OSU’s Equal Employment Identification Form.

The following comes to us from Paul Rose.

The Ohio State Business Law Journal is currently accepting submissions for Volume 17, Issue 1, which will be published in Fall, 2022. The Ohio State Business Law Journal is nationally renowned for its intersection of business and the law. Created and managed by students, this semi-annual journal explores the legal issues facing entrepreneurs, small business owners, and venture capitalists.

For more information about our submission preferences and author guidelines, please see our submissions page (https://osblj.scholasticahq.com). Our editors are looking forward to reading your submissions!

Via Reuters (go read the whole thing here):

Republican-led states have unleashed a policy push to punish Wall Street for taking stances on gun control, climate change, diversity and other social issues, in a warning for companies that have waded in to fractious social debates…. This year there are at least 44 bills or new laws in 17 conservative-led states penalizing such company policies …. West Virginia and Arkansas …, for example, stopped using BlackRock Inc (BLK.N) for certain services, due to its climate stance …. In Texas, JPMorgan Chase & Co (JPM.N), Bank of America (BAC.N) and Goldman Sachs (GS.N) have been sidelined from the municipal bond market due to laws passed last year barring firms that “boycott” energy companies or “discriminate” against the firearms industry from doing new business with the state…. The … “anti-woke” measures are gaining ground not only in traditional conservative strongholds such as Texas and Kentucky but also in so-called purple states … such as Arizona and Ohio…. Guns and energy were the focus of the roughly dozen state laws and bills last year …. But this year there were also more than a dozen bills relating to … other issues, including “divisive concepts” like critical race theory … mandatory COVID-19 vaccines, or the use of “social credit scores” …. The latter is a theory that companies may take into account an individual’s political leanings when providing and pricing services.

Y’all could have guessed I’d be blogging about this, because it’s like someone created a corporate law honey pot just for me personally.

I’m a bit late to the party on the Ben & Jerry’s structure – I know social enterprise scholars have studied the Unilever/Ben & Jerry’s arrangement for years – but now that there’s a dispute, I am fascinated.

As I understand it, Ben & Jerry’s was a publicly traded company, with a multi-class stock structure that handed control to founders Ben Cohen and Jerry Greenfield.  Cohen and Greenfield were famously committed to the company’s social mission as well as its economic one, but the stock traded at an unimpressive dollar figure, making the company a tempting takeover target.  Eventually, Cohen and Greenfield agreed to sell to Unilever in an all-cash, two-step merger consisting of a tender offer on the front end and a voted merger on the back end.  (On the back end, Unilever had more than 90% of the company’s votes, so I gather the necessity of a voted merger was because Vermont – where the company was (and is) incorporated – either didn’t have a short form process or set the threshold higher than 90%). 

In any event, as set forth in the merger agreement between Ben & Jerry’s Homemade and Unilever (Unilever acting through its acquisition vehicle Vermont All Natural Expansion Company, and its US subsidiary, Conopco), it was agreed that after the merger, the company would survive as a wholly-owned Unilever subsidiary, organized as a Vermont close corporation.  Unilever would only have the right to appoint a minority of the board, however; most of the board would be continuing directors from the former company, and they would get to choose their own successors.  Unilever, as the sole shareholder, was then contractually obligated to vote for those successors to cause them to be seated as new board members.  The board would be in charge of overseeing the social mission of the company, but operational/financial control would be in the hands of a CEO, which Unilever would be permitted to select.  The merger agreement devoted a significant amount of space to the social mission priorities of the surviving company, and to the board’s responsibility for them.

Separately, Unilever signed a “shareholders agreement” that laid out the same idea.  The shareholders agreement – which I gather was signed after the merger, because the agreement identifies Ben & Jerry’s as a Vermont close corporation – was between Conopco, as Ben & Jerry’s sole shareholder, and Ben & Jerry’s itself, and allocated responsibility for pursuing social responsibility priorities to the independent board, while the CEO would retain managerial authority over other areas.

Both the merger agreement, and the shareholders agreement, explicitly stated that there were no third party beneficiaries.  Instead, the enforcement mechanisms set forth in both agreements were that Ben & Jerry’s could sue for specific performance, and that, if Unilever failed to vote for a selected director candidate, then current board members and the spurned director could sue. 

Anyway, Ben & Jerry’s continued over the years with its social mission and its open political stances, but matters came to a head when the board decided to halt all sales in the Israeli-occupied territories. 

That, apparently, was a bridge too far for Unilever, and it decided to simply sell the brand to a third party distributor who would market Ben & Jerry’s products in the West Bank.  Which prompted Ben & Jerry’s – via its independent board – to sue Unilever in SDNY for breach of the merger agreement and the shareholders agreement, seeking an order that would prevent Unilever from transferring Ben & Jerry’s trademarks for use in the West Bank. 

Well.

The most boring aspect of this dispute is the plain old contractual one.  Did Unilever violate the agreement?  Jesse Fried and David Webber think not.  They point out that the merger agreement also included a license agreement, which was attached to the proxy statement.  That license agreement obligated Ben & Jerry’s to “use commercially reasonable efforts to obtain…for [Unilever] the right to conduct all facets of the Business in Israel,” and they argue the specific obligation trumps Unilever’s general obligations.

I’m not sure it’s that simple, though; the license agreement also is qualified by the social responsibility promises.  For example, the license agreement states:

[Unilever] agrees that the following will apply to its conduct of the Business in the Territory. Products bearing the Licensed Mark shall be developed, introduced, promoted and marketed by [Unilever] in a manner so as to further the Essential Integrity of the Principal Licensed Mark, as such Essential Integrity of the Principal Licensed Mark is now embodied in the business conducted by [Ben & Jerry’s] in the United States (and certain countries outside the United States), and as it may evolve hereafter in a manner consistent with its current embodiment.

And it goes on from there, for several paragraphs, including, “The parties agree that the performance by [Unilever] of its obligations in this Section 7 is a material and fundamental element of this Agreement and is essential to preserve the Essential Integrity of the Principal Licensed Mark.”

And because the license agreement makes clear that the social responsibility obligations will evolve over time, theoretically something that was not required at one point would become required at another.

Fried and Webber also argue, though – and this is something Fried lays out more here – that the social responsibility obligations only attach if they are commercially reasonable, and withdrawing from an entire market (while leaving Unilever vulnerable to anti-BDS sanctions from states) is unreasonable, threatening to cut into the financial and operational authority reserved to Unilever via the CEO.  That’s the kind of messy interpretive issue that I would not necessarily expect to see quickly resolved; it could drag out into discovery.

But far more interesting to me is the conceptual idea that Unilever, as now the sole shareholder of Ben & Jerry’s, formed a binding contract with its own wholly owned subsidiary regarding entity governance.  I mean, this is Vermont law, not Delaware, and I don’t claim to be familiar with Vermont corporate law, but I would think there’s a very good argument that the contract is simply the legal equivalent of a New Year’s resolution: a promise I made to myself, with about as much binding effect.

(Yes, we can argue about whether it’s even legal for a business corporation to adopt a social responsibility mission on par with the financial one; Vermont has a vague constituency statute and this is a close corporation, but leaving that aside, even in Delaware, I’m assuming shareholders can voluntarily agree to that kind of thing.  The question here is, did they?)

I mean, it’s one thing to treat the corporation as its own entity with its own interests, separate from the interests of a particular set of shareholders, and it’s another thing to leave those interests entirely unspecified, with no actual person/entity standing them behind them, not even particular stakeholders.  It’s not as though the board is representing, say, some group of creditors who want to preserve Ben & Jerry’s assets against parent expropriation; this is not even like a nonprofit, which exists to advance the interests of the beneficiaries and the donors who contribute with the expectation their dollars will be used for particular ends, and where the system is ultimately enforced via the parens patriae power of the state.  Under the Ben & Jerry’s structure, the board has fiduciary duties to the corporation, but it’s unclear who are the actual human people standing behind the legal entity whose interests they represent, and certainly no stakeholder has control over the board.   The business has a social responsibility mission, as defined by a self-perpetuating board with literally no accountability to any constituency, that has no stake, and whose personal interests have been defined out of the contract.  The board represents someone, surely, but who?  Doesn’t all this take the “real entity” theory of the corporation too far?

It would be different, of course, if the documents allowed for a third party beneficiary.  Because obviously there are some: Ben Cohen and Jerry Greenfield.  They wanted this promise, it was an important part of their decision to sell their controlling stake in the first place.  Likely, they would not have sold without this promise, and certainly it would be reasonable for them to have enforcement rights.  They could have sold their shares but retained for themselves a kind of social responsibility easement that gives them, and their heirs and assigns, continuing rights in certain areas.

But that’s not how they structured the deal.  The contracts explicitly deny the possibility of third party beneficiaries.  So the interesting question is, why?

One possibility, I suppose, is that Unilever didn’t want so effective an enforcement mechanism; they’d have balked at the prospect of accountability directly to identified persons.  If that’s the reason, then Cohen and Greenfield deliberately agreed to a legally uncertain structure and presumably were paid more for their shares as a result.

But what I actually think is more likely, though, has to do with the fact that Cohen and Greenfield were, in fact, controlling shareholders, who sold their high-vote shares on the same terms and for the same price – $43.60 – as everyone else.  This was Vermont, of course, and I am not an expert in Vermont law, but in Delaware, there’s a huge difference between a controller selling to a third party for the same consideration as the minority shareholders, and selling with a side-deal – even a social responsibility side-deal.  If the merger agreement explicitly contracted that the social responsibility promises were made to Ben Cohen and Jerry Greenfield, that could have immediately subjected the deal to entire fairness scrutiny in a subsequent shareholder challenge.

Plus, the company charter apparently had an unusual provision that allowed the board to convert the high vote stock into ordinary stock if it chose – though the reason for that is unclear.  If Cohen and Greenfield insisted on side consideration in a merger, there might have been questions about whether the board had a responsibility to remove their control rights.

And that assumes Ben Cohen and Jerry Greenfield were even legally able to get additional consideration in the event of a merger; some controllers give up that right in the charter, and I don’t know if Cohen and Greenfield did.

So it’s possible that Cohen and Greenfield wanted a personal promise but structured the deal to avoid the appearance of that, which is what – in my view – makes the entire agreement legally suspect.

That said, we can imagine alternatives where the public shareholders themselves valued the social responsibility promises – that’s kind of the point of a lot of CSR theorizing, i.e., that public shareholders would vote for value-reducing social promises if they didn’t suffer from a collective action problem.  What if they wanted this built into the merger?

Well, then I suppose the agreement could have created some kind of trustee, representing the interests of the selling public shareholders, with enforcement power as a third-party beneficiary.  But Ben & Jerry’s didn’t do that, either.

So while I certainly don’t think shareholders should be legally barred from creating enforceable social responsibility promises, I am very, very uncomfortable with the kind of … well, subterfuge … it took for Cohen and Greenfield to get theirs, and I’m sympathetic to possibility that this particular promise is unenforceable due to a lack of, well, distinct parties to the contract.

That said, while that argument might be available to Unilever, I’m not sure Unilever has much of an interest in making it.  Though this article suggests that Ben & Jerry’s social activism has become a headache for Unilever in recent years, social responsibility is very much part of the Ben & Jerry’s brand.  I assume there’s a contingent of consumers who have warm fuzzies about the company because of it, and even those opposed to the company’s stances on particular issues probably dismiss them as the views of quirky Vermont hippies without much real world effect.  In other words, I suspect most of the time, the social conscience of Ben & Jerry’s is net profitable, and nuking the entire arrangement over this one issue would fire off a cannon to kill a bug.  So, Unilever may prefer to litigate this as a matter of interpretation over what the contract requires – knowing that a win will allow Unilever more control over the social stances that the company takes in the future.

Unilever’s papers are due Monday, so we’ll see.

Jürgen Kühling is the chair of Germany’s Monopolies Commission. The following is a hopefully interesting excerpt from a recent interview he did with ProMarket (here).

When the Federal Cartel Office blocks a merger in Germany, the merging parties can seek an exemption from the minister of economic affairs to clear the merger. And we had a case three years ago where companies argued that the merger would lead to sustainable efficiencies that would benefit the economy as a whole in such magnitude that the efficiencies would outweigh the merger’s adverse effect on competition completely. We had concluded that the alleged environmental public benefits were either not demonstrated or ultimately represented self-serving benefits. In general, we think such sustainable benefits that are in the consumers’ interest can already be addressed under the current competition law. All sustainability aspects that consumers do not value lie outside the scope of competition law, in our view, and require regulation.

Kühling then provided some additional details:

As I mentioned before, there was a merger in 2019 that came under ministerial review, which we advised the ministry of economics on as well. After a substantial assessment, we concluded that the merger would not have any substantial positive impact on the development of new green products. Besides, the Federal Cartel Office concluded that this merger would lead to an adverse effect on competition and that considering efficiencies within the current merger control framework, there were no benefits for consumers. Yet, the economics minister argued that, when weighing the adverse effect on competition against the positive effect of reducing carbon dioxide emissions, there is an overall benefit for society, and therefore, the merger was granted ministerial approval.