Previously, I announced that my paper, Capital Discrimination, would be forthcoming in the Houston Law Review, and had just been posted publicly to SSRN.  As I explained in that post, the paper explores the problem of gender discrimination against women as business owners and capital providers, and proposes changes to both statutory law and common law fiduciary duties in order to address gender-based oppression in business.

The paper itself describes several business law cases from different jurisdictions, including Shawe v. Elting, a matter very familiar to business lawyers, and which involved an acrimonious dispute in the Delaware courts.  Just before Christmas, an attorney representing Philip Shawe sent this cease and desist letter to SSRN, demanding that the paper be removed from that site as defamatory. 

On New Year’s Day, SSRN removed the paper in response to Shawe’s letter.  After that, Houston Law Review could no longer assure me that the article would run in its journal, and stated that they would not preclude me from submitting the paper for publication elsewhere.   

Tulane’s counsel has sent a response letter to SSRN in hopes of having the paper restored but for now, to ensure that the paper is not kept out of sight indefinitely, I have made a copy available at this link.  This draft of the paper includes a reference to Mr. Shawe’s defamation claims.

 

An update to the update:  As of the morning of February 14, SSRN has restored the paper, and it is available at the original link, here.  SSRN put out a twitter comment on the situation here.

An update to the update to the update:  I am pleased to report that the Houston Law Review informed me yesterday (February 18) that, with the consent of its Board of Directors, the Review has committed to publishing Capital Discrimination.  I particularly want to thank the student editors for their persistence and support.  A new version of the draft has been uploaded.  With any luck, this saga is now complete and I look forward to publication in the April-ish/May-ish.

The SEC has been quite busy recently, and among other proposed rules, there’s this package of reforms that would impose some fairly dramatic new requirements for private funds.  The proposing release documents problems and conflicts in the industry that are both hair-raising and, really, quite well known.  In addition to just generally opaque fees and valuations, fund managers often charge fees to provide services to portfolio firms, which benefit the manager but eat into investor returns; some investors get preferred terms (extra liquidity, relief from fees, selective disclosures) that harm returns to other investors, and ultimately benefit the manager who can maintain relationships with the favored investors, and so forth.

So, in addition to requiring more disclosures to investors, audits, and the like, the SEC is also proposing to flat out prohibit certain practices.  For example, fees associated with a portfolio investment would have to be charged pro rata, rather than forcing some investors or funds to bear more expenses.  Funds would be prohibited from selectively disclosing information to preferred investors, or permitting them to have preferred redemption terms.  Advisors would be prohibited from seeking exculpation or indemnification from liability for breach of fiduciary duty, bad faith, recklessness, or even negligence with respect to the fund.

(It is of course difficult to miss how much these reforms kind of mirror issues that have come up in public markets.  The prohibition on selective disclosure sounds a lot like Reg FD; the prohibition on selective redemption ability calls to mind the mutual fund scandals from a couple of decades ago).

There are people who are much bigger fund mavens than me and probably have a lot more sophisticated thoughts, but here’s what immediately occurs to me:

First, I notice that in talking about the need for these rules, the SEC highlighted that funds give investors very limited governance rights.  For example, the SEC said:

Private funds typically lack fully independent governance mechanisms, such as an independent board of directors or LPAC with direct access to fund information, that would help monitor and govern private fund adviser conduct and check possible overreaching. Although some private funds may have LPACs or boards of directors, these types of bodies may not have the necessary independence, authority, or accountability to oversee and consent to these conflicts or other harmful practices as they may not have sufficient  access, information, or authority to perform a broad oversight role….To the extent investors are afforded governance or similar rights, such as LPAC representation, certain fund agreements permit such investors to exercise their rights in a manner that places their interests ahead of the private fund or the investors as a whole. For example, certain fund agreements state that, subject to applicable law, LPAC members owe no duties to the private fund or to any of the other investors in the private fund and are not obligated to act in the interests of the private fund or the other investors as a whole….

We have also observed some cases where private fund advisers have directly or indirectly (including through a related person) borrowed from private fund clients.  This practice carries a risk of investor harm because the fund client may be prevented from using borrowed assets to further the fund’s investment strategy, and so the fund may fail to maximize the investor’s returns. This risk is relatively higher for those investors that are not able to negotiate or directly discuss the terms of the borrowing with the adviser, and for those funds that do not have an independent board of directors or LPAC to review and consider such transactions.

Now, I don’t know if funds are typically organized under Delaware or another state’s law, but either way, this is really a great example of the push-pull interaction of federal and state authority over entities and “internal affairs.”  Mark Roe and Renee Jones have both written about how the threat of federalization of corporate law pressures Delaware to tighten its governance standards; this is a really dramatic example of the SEC saying that because state entity law does not contain investor protections and governance rights, it is necessary that the federal government assume that responsibility.  

Second, I note that institutional investors have been requesting these kinds of reforms for a while (for example); they obviously feel they cannot effectively bargain for the terms and information they need.  It really is a challenge to the current model of securities regulation, where we assume that institutional investors have the sophistication and bargaining power to protect themselves.  Commissioner Hester Peirce has already put out a statement decrying the proposed rules on precisely these grounds, i.e., that institutions don’t need the SEC’s protection, but if that’s so, what do you do when the investors ask for it?  If you don’t believe them, if you don’t believe they understand what they need and where they have insufficient bargaining power, then how can you justify Rule 506?  And if you do believe them, then, well … how can you justify Rule 506?

Third, there is a way to square that circle, and the SEC leans heavily into it in its proposing release: comparability.  Investors, even institutional ones, not only have collective action problems negotiating for terms and whatnot, but more than that, especially across investment managers, it may be very difficult to compare terms and returns.  And facilitating standardization is a task that government agencies are especially well-suited for.  Which is why the SEC repeatedly says that its proposed rules make it easier for investors to compare alternatives.

And then finally, there’s this:  To the extent funds are charging opaque fees and inflating valuations and whatnot, that seriously affects the allocation of capital, in ways that have real world economic effects. I’ve posted about this before in the context of startups, and it’s true with funds as well: the fund model may encourage some kinds of investments (leveraged buyouts, certain startup models) and not others, and if they’re wrong about what’s profitable, it ultimately not only harms investors, but all the employees who are left without jobs when the business fails, and even founders of competing businesses who can’t find capital because they don’t fit the fund model.   On the other hand, considering complaints about short-termism in markets today, I have no doubt that opponents of private fund regulation will particularly take issue with the SEC’s proposal for quarterly reporting; they will argue that doing so will eliminate private funds’ unique ability to focus on the longer term.

Between the Winter Olympics and the Superbowl, this weekend is a sports-lover’s dream. But it can also be a nightmare for others. Next week in my Business and Human Rights class, we’ll discuss the business of sports and the role of business in sports. For some very brief background, under the UN Guiding Principles on Business and Human Rights, the state has a duty to protect human rights but businesses have a responsibility (not a duty) to “respect” human rights, which means they can’t make things worse. Businesses should also mitigate negative human rights impacts. I say “should” because the UNGPs aren’t binding on businesses and there’s a hodgepodge of due diligence and disclosure regimes that often conflict and overlap. But things are changing and with ESG discussions being all the rage and human rights and labor falling under the “S” factor, businesses need to do more. The EU is also finalizing mandatory human rights due diligence rules and interestingly, some powerful investors and companies are on board, likely so there’s some level of certainty and harmonization of standards. 

I’ve blogged in the past about human rights issues in sports, particularly the Olympics and World Cup in Brazil, where hundreds of thousands of people were displaced, FIFA had its own courts, and human rights issues abounded. For more on human rights and megasporting events, see this post about the Russian Olympics. The current Olympics in China and the future World Cup in Qatar have been rife with controversy because of the long-standing human rights abuses in those countries. Some athletes have even called the Winter Olympics the Genocide Olympics.

So whose problem is it? If businesses know that there’s almost always some human rights impact with megasporting events and they know sponsorship doesn’t really add to the bottom line, should they get out of the sponsorship business all together? Are they complicit or merely (innocent) bystanders?

Here are the questions I’ve asked my students to consider for class this week. 

  1. My hometown of Miami is vying for a spot to host the 2026 World Cup. What are the obligations of the “state” when it’s a city? As the US government begins revising its National Action Plan on Responsible Business Conduct in accordance with the UNGPs, should a city do more than the national government? Should FIFA look at issues such as the effect of the games on the cities beyond revenue that will enrich only a few?
  2. Cities have a human rights obligation to protect their citizens but what responsibility do companies have to make sure they don’t exacerbate pre-existing homelessness issues?
  3. Does it matter if the company sponsoring is Nike (directly working with athletes), Coca Cola (providing beverages), or another company that’s just an advertiser? Is there a difference in the degree of corporate responsibility (if any)?
  4. Commentators have accused Nike and other companies of using forced labor in China. Is there a conflict with their support of Colin Kaepernick and the Black Lives Matter movement while also participating in events where there are alleged human rights abuses?
  5. What about the issue of human trafficking and megasporting events? It’s such a big problem that the NFL has partnered with US Customs and Border Patrol for a public service announcement about it in light of the Superbowl. Are public service announcements enough?
  6. Should athletes boycott events in countries with poor human rights records? How would that affect their sponsorships and their other contractual obligations? A Boston Celtic called for a boycott of the Beijing Olympics, but who’s really listening?
  7. How do what athletes say about Black Lives Matter and taking a knee square with participating in events in China? Should athletes, who are businesses, just shut up and dribble? If an athlete/businessman like LeBron James takes on Black Lives Matter does he have an equal obligation to protest against the use of forced labor in China?
  8. FIFA and the International Olympic Committee are corporations that base their human rights policies in part on the UNGPs. They have spoken out against discrimination, human rights, and  racism in sport.  Is it too much or too little? How far should a company like FIFA or the NFL go before they alienate fans by talking about hot button issues?
  9. Should fans boycott events that are known for human rights abuses? How does that affect the livelihood of the workers who depend on that revenue? Would a boycott benefit or hurt those who need the support the most?

I look forward to a lively discussion in class on Wednesday about the respective roles and responsibilities of the state, the companies, and the fans. Will you look at sports any differently after reading this post?  If you have thoughts, please leave a comment or email me at mweldon@law.miami.edu.

 

 

 

According to their website, on November 15, 2021, the Center for Individual Rights (CIR) filed a complaint alleging workplace political opinion discrimination in the case of Krehbiel v. BrightKey, Inc.  An amended complaint was filed on Jan. 3, 2022.  You can find links to both complaints here.  What follows is a brief description of the case as per CIR (emphasis mine).

On November 15, the Center for Individual Rights filed a political opinion and racial discrimination lawsuit against BrightKey, Inc., a Maryland corporation, which fired its vice president of operations, Greg Krehbiel, over views that he expressed in his off-work podcast. BrightKey violated Krehbiel’s rights under county, state, and federal anti-discrimination law.

In his podcast, Krehbiel questioned diversity hiring requirements and enhanced penalties for “hate crimes.” Other BrightKey employees discovered Krehbiel’s podcast. They objected to the content because his views were the product of “white privilege.” Shortly after discovering the podcast, a group of employees walked out and demanded the company fire Krehbiel. BrightKey swiftly acceded to the employees’ demands.

CIR is suing BrightKey for firing Krehbiel over the political opinions that he expressed in his podcast. Howard County, Maryland is one of many jurisdictions around the country that protects employees from political opinion discrimination. The suit also alleges racial discrimination under Howard County, state, and federal anti-discrimination law. Krehbiel expressed legitimate public policy positions, but because of his race, BrightKey employees construed his views as bigoted. CIR filed the case in the United States District Court for the District of Maryland.

OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW invites applications for one or more tenured or tenure-track faculty positions to begin with the 2022-23 academic year. We welcome applications from candidates with interests in any area of law, but we are particularly interested in candidates with a teaching interest in business organizations, energy law, environmental law, healthcare law, homeland security and national security, or secured transactions. We welcome candidates whose approaches in research will add to the scope and depth of our faculty scholarship.

Candidates should have an excellent academic background, demonstrated potential to be a productive scholar, a strong commitment to the practice of inclusion, and a strong commitment to becoming an engaged classroom teacher. Candidates must have a J.D. degree from an ABA accredited law school and be licensed to practice law in one of the states or the District of Columbia.

Oklahoma City University School of Law is located in downtown Oklahoma City and is deeply engaged with the legal, business, and governmental communities. Oklahoma City has been named “American’s Most Livable Community” and is consistently ranked among the most affordable and prosperous cities, among the top cities for entrepreneurs and small businesses, and among the best-run large cities.

Oklahoma City University is an equal opportunity employer and affirms the values and goals of diversity. We strongly encourage applications from members of demographic groups underrepresented in the teaching and practice of law. For the university’s complete nondiscrimination policy, please see: https://www.okcu.edu/admin/hr/policies/general/nondiscrimination-policy-equity-resolutionprocess/nondiscrimination-policy/.

To apply, please submit a CV and job-talk paper to https://jobs.silkroad.com/OKCU/FacultyCareers?page=2. A cover letter that describes the candidate’s commitment to the practice of inclusion and includes examples would be helpful. If a candidate is selected for an interview, teaching evaluations will be requested, if available.

In 2013, acclaimed short-story writer George Saunders gave a commencement speech on kindness at Syracuse University. The speech went viral, the transcript landed on The New York Times blog, and the talk later became the basis of a book. 

The entire speech is well worth listening to, but the gist is Saunders saying: “What I regret most in my life are failures of kindness.”

Oxford English Dictionary defines “kindness” as “the quality of being friendly, generous, and considerate.”

When I think of the profession of law, “kindness,” “friendly,” “generous,” and “considerate” are sadly not among the first words that come to mind. “Analytical,” “bold,” “competitive,” “critical,” and “justice” were the first five words I would use to describe our field. 

As C.S. Lewis reportedly said, “love is something more stern and splendid than mere kindness,” but I am not sure love is ever less than kindness. There may be ways, as negotiation theory teaches us, to “be soft on the person, but hard on the problem.” We can tackle injustice with vigor, but be mindful of the people across the tables from us. 

Pre-pandemic, I put a real premium on “tough love” and preparing students for the rigors of practice. While I still think there is a place for the critical and exacting skills that law training tends to emphasize, I also think we would all do well to increase our focus on kindness.

In 2011, Peter Schweizer published a book, Throw Them All Out, in which he exposed some questionable means by which (according to one study) politicians manage to increase their personal wealth 50% faster than the average American.

According to Schweizer, trading on material nonpublic information appears to be a popular method among congresspersons for achieving outsized returns on their investments. He cites one study finding:

  • The average American investor underperforms the market.
  • The average corporate insider, trading his own company’s stock, beats the market by 7% a year.
  • The average senator beats the market by 12% a year.

Schweitzer’s book was followed by a feature story on the CBS News show, 60 Minutes, highlighting some dubious stock trades by leaders of both political parties. These stories got the public’s attention and spurred Congress to act—adopting the Stop Trading on Congressional Knowledge (STOCK) Act in April of 2012.

The STOCK Act made explicit what many already understood as implicit—that congressional trading based on material nonpublic information acquired by virtue of their position as a public servant was a breach of their fiduciary duties and would therefore violate Section 10b of the Securities Exchange Act of 1934. The Act also expanded disclosure requirements for members of Congress, the executive branch, and their staff members.

But no sooner had the STOCK Act passed than it was quietly overhauled to weaken certain of its key provisions, and, in any event, the Act has not been consistently enforced since its adoption. As a result, public cynicism concerning congressional insider trading has once again snowballed. For example, Speaker Nancy Pelosi’s stock trades are monitored by popular Twitter, TikTok, and Reddit accounts with handles like “@NancyTracker,” and the search “Pelosi stock trades” hit a record high on Google in January 2022.

Of course, Pelosi is not the only congressperson the public suspects of insider trading. For example, a number of U.S. Senators were scrutinized over suspicious stock trades as the threat of the COVID-19 pandemic emerged in 2020.

So what is to be done? Just as they did in 2011, members of Congress on both sides of the aisle are rushing to get out in front of the issue. A number of congressional insider trading reform bills have garnered bipartisan support. Many of these bills propose the broad prophylactic of proscribing members of congress from trading in individual stocks. Some bills would go so far as proscribing trades by spouses and dependent children as well.

There is precedent for broad prophylactics against insider trading. Consider, for example, Exchange Act Rule 14e-3, which permits civil and criminal liability for trading based on material nonpublic information concerning tender offers, even if there is no accompanying proof of fraud.

Though I have argued for reducing the scope of insider trading liability in some contexts (e.g., where such trading is licensed by the issuer of the stock being traded), I have consistently recognized misappropriation trading (such as when a congressperson misappropriates material nonpublic government information to trade for personal gain) as morally wrong, and as warranting civil and criminal sanctions. And I think extending the scope of liability for congressional insider trading with a broad prophylactic (e.g., proscribing all individual stock trades) is warranted for the following reasons (among others):

  • Congress’s influence over the SEC and DOJ makes aggressive enforcement by those agencies more challenging—and when actions are brought, there will always be the specter of political motivation. The broad prophylactic would simplify enforcement, and thereby mitigate these worries.
  • Given the above concerns, even legitimate stock trades by members of Congress will be the subject of continued public suspicion and cynicism. Such suspicion undermines public confidence in the integrity of the legislative branch–and the markets.
  • Protestations that a broad proscription of individual stock trading would be Un-American because “We’re a free-market economy” and “[Members of Congress] should be able to participate in that” are totally unavailing. People voluntarily assume roles that deprive them of rights they would otherwise enjoy all the time (e.g., by joining the military), and public service has always been understood as just such a role.
  • Members of congress should not be (significantly) financially disadvantaged by a rule precluding trades in individual stocks. Given the efficient market hypothesis (roughly, that an individual stock’s price always reflects all currently available public information about that stock), members of congress should not expect their individual stock trades to outperform a similar trade in, say, a mutual fund in any event….unless, that is, they have information that is NOT publicly available…. Diversification is typically the best long-term investment strategy.

The most recent ReacClearPolitics Poll Average shows that Congress currently enjoys the approval of 21% of Americans. If Congress would like to begin improving those numbers, I suggest it adopt one of the proposed insider trading bills proscribing individual stock trading by its members. This might go a long way toward restoring the perception that members of Congress are public servants, as opposed to the current perception shared by many Americans (justified or not) that they are public parasites.

On January 25, 2022,  Fulton Superior Court Judge Belinda Edwards issued an order vacating a FINRA arbitration award and finding, among other things that “Wells Fargo and its counsel manipulated the arbitrator selection process.”   Yesterday, the Public Investors Advocate Bar Association (PIABA) issued a statement calling for a Congressional investigation into whether FINRA’s arbitration forum tilts the scales in favor of industry firms by manipulating the arbitrator selection process. The Wall Street Journal has already started covering the fracas.  What happened here? 

This story starts in the standard fashion.  Wells Fargo managed the claimants accounts and allegedly over-concentrated their accounts into single stocks and industries.  When the claimants suffered some losses and complained, Wells Fargo assigned a different broker to their account.  The claimants became increasingly dissatisfied with Wells Fargo’s management of their accounts and eventually brought an arbitration claim in the FINRA forum because their Wells Fargo account opening agreement contains a pre-dispute arbitration agreement.  All perfectly normal.   

Things soon became more interesting.  Wells Fargo hired Terry Weiss as outside counsel to defend it.  The arbitration proceeded in the normal course.  FINRA circulates lists of potential arbitrators for the parties to rank and potentially strike before FINRA assigns the arbitrators for the case.  When the matter reached the arbitrator selection process,  Mr. Weiss went into action. He didn’t like one of the arbitrators that had been included on the list and sent a letter to FINRA demanding changes, stating “It was made clear to me verbally that none of the Postell arbitrators would have the opportunity to serve on any one of my cases . . .”  Judge Edwards found that Weiss’s letter “disclosed an agreement between FINRA and counsel for Wells Fargo pertaining to the pool of arbitrators available to his clients in all of his cases.”  Although the investors opposed Mr. Weiss’s request to remove the arbitrator from the list, the arbitrator was struck without explanation and the parties were provided with “a new, edited, computer generated list.”  A panel of three arbitrators was selected after the parties ranked and struck arbitrators from that list. Mr. Weiss did not like the panel’s composition still and demanded that one of the arbitrators be removed.  FINRA again “ceded to Wells Fargo’s demands and struck the arbitrator from the case.”  A new arbitrator was appointed.

The arbitration proceeded and ultimately went in Wells Fargo’s favor. Some interesting things happened along the way.  When a broker began answering questions during testimony, he admitted that he had violated “Written Supervisory Procedures,” “SEC record keeping rules,” that it was a “bad thing,” and that he he “did it anyway.”  Right at about that point, the testimony was interrupted by a sudden “medical emergency” afflicting “counsel for Wells Fargo.”  The hearing was postponed for about nine months.  When the hearing picked up again, the testimony was different. Wells Fargo’s counsel also told the arbitration panel that he did not recall the admissions that preceded the medical emergency.  FINRA arbitrations are not ordinarily contemporaneously transcribed.  FINRA keeps an audio recording which parties may request after the hearing.  This can make it difficult to establish exactly what someone said earlier in the hearing.   Judge Edwards found that “Wells Fargo and its counsel committed fraud on the arbitration panel by procuring perjured testimony, intentionally misrepresenting the record, and refusing to turn over a key document. . .”

Judge Edwards also found that the arbitrator selection process had been manipulated.  The court’s finding are troubling because they raise questions about the fairness of the arbitration forum:

The Court’s factual review of the record evidence leads to its finding that Wells Fargo and its counsel manipulated the FINRA arbitrator selection process in violation of the FINRA Code of Arbitration Procedure, denying the Investors’ their contractual right to a neutral, computer-generated list of potential arbitrators. Wells Fargo and its counsel, Terry Weiss, admit that FINRA provides any client Terry Weiss represents with a subset of arbitrators in which certain arbitrators (at least three, but perhaps more) are removed from the list Wells Fargo agreed, by contract, to provide to the Investors in the event of a dispute. Permitting one lawyer to secretly red line the neutral list makes the list anything but neutral, and calls into question the entire fairness of the arbitral forum.

The court also explained that “only reason this secret agreement came to light was because FINRA accidentally included one of the three Postell arbitrators, Fred Pinckney, on the neutral computer-generated List.”

Did an agreement to circulate modified lists for Terry Weiss and his clients exist, and if so, who at FINRA made it?  Do other lawyers have similar privileges? Terry Weiss said in writing that he had a verbal promise that certain arbitrators would never be allowed to serve on his cases. If that were the case, Wells Fargo could bias the arbitrator pool in its favor by hiring Terry Weiss.  If this is true, this isn’t fair to investors or to the defense lawyers out there who compete with Weiss for business.  They can’t offer their clients the ability to exclude certain arbitrators merely by appearing in a case.  It’s worth noting again that the Court found that “Wells Fargo  witnesses and its counsel introduced perjured testimony [and] intentionally misrepresented the record. . .”  It’s possible Weiss’s representations about preferential lists were not entirely accurate.

There is much we do not know.  We do not know the reason why FINRA struck the first arbitrator.  We don’t know exactly why FINRA struck the second arbitrator.  Nicole Iannarone has called for greater transparency around these issues.  It may be that FINRA has some informal, unpublished criteria it uses when evaluating these kinds of requests.  If that is the case, it’s a problem for fairness and transparency in the forum, but it isn’t a secret agreement to tilt the arbitration pool in the favor of well-connected lawyers representing FINRA members.  FINRA itself didn’t enter an appearance in the Georgia proceedings so the Court didn’t have FINRA before it.

The language in the opinion goes directly to fears about industry-controlled arbitration forums.  If the industry is able to manipulate the arbitrator pool, it can shift the outcomes in cases.  Most of the time, investors won’t have the kinds of facts available that led to this motion to vacate.  The SEC oversees FINRA and I expect that it will ask questions and investigate this issue.  Hopefully the investigation will be transparent and generate confidence in the forum.  Transparency will require a deliberate decision by FINRA and the SEC though because FINRA isn’t subject to FOIA and the SEC’s oversight of FINRA is also not subject to FOIA.

Dear BLPB Readers,

I hadn’t heard about the FDIC and FinCEN Tech Sprint until today and wanted to help spread the word!  The registration period closes on February 15 at 5p.m. ET, so don’t delay if you’re interested!  A short summary paragraph of the program is below and more information can be found here.

“The Federal Deposit Insurance Corporation (FDIC) and the Financial Crimes Enforcement Network (FinCEN) today announced a Tech Sprint to develop solutions for financial institutions and regulators to help measure the effectiveness of digital identity proofing- the process used to collect, validate, and verify information about a person.  Read more about FDIC and FinCEN’s Tech Sprint, Measuring the Effectiveness of Digital Identity Proofing for Digital Financial Services.”     

I have been remiss in writing to honor the life and legacy of one of our colleagues (and one of my friends), Peter J. Henning.  Peter, a Professor at Wayne State University Law School until his untimely passing, died earlier this month after wrestling with a long-term, debilitating illness.  Our mutual friend, Stetson Law Professor Ellen Podgor, published a post in his memory back on the 18th on the White Collar Crime Prof Blog.  In the post, she reflected on their long-term friendship and initial co-editorship on the White Collar Crime Prof Blog.  She began by saying: “Peter Henning was an incredible writer, scholar, and teacher. Most of all to me – he was a good friend.”  I could have started this post the same way . . . .  Ellen also linked to the announcement posted by Wayne State Law.

Peter was one among a number of colleagues whom I believe understood me and my work well.  He valued my practice experience and encouraged my use of it in research and writing.  While our work intersected most in the insider trading realm, he motivated and supported my scholarship and teaching more broadly.  He enjoyed our discussion groups at the Association of American Law Schools and Southeastern Association of Law Schools conferences (although my recollection is that he had to skip out on a bunch of the latter because of conflicting wedding anniversary celebrations . . .).

I was invited to speak at Wayne State Law (and write for the Wayne Law Review) twice at his suggestion.  Each time, he was the consummate host.   I remember hm taking me to a local eatery on one of those trips–a burger and beer place, as I recall.  I was too late for the normal lunch hour, but he wanted to make sure I had a bite to eat.  He was concerned that it was not upscale enough for me.  I assured him that it was just my style (which it was!).

His pieces for The New York Times were spot on.  You can find his columns for the paper’s White Collar Watch here.  His work will continue to bless and inform us all for many years to come. 

I miss Peter for all this and more.  He was a great colleague and leader.  I know he is now free of his earthly burdens, which does give me some solace.  May he rest in eternal peace.