There's a lot of DPAs out there, and it looks like two swallow spring of judicial supervision of them is about to come to an end, thanks to icy appellate courts. I think it's bad! And I wrote something about it over at the Times:
something must change in the world of deferred prosecution agreements. They are increasing in number every year. The threat of punishment for noncompliance with a deferred prosecution agreement is a court order. Professors who have looked at the way prosecutors supervise deferred prosecution agreements do not like what they see. Prosecutors, moreover, have little experience with the oversight of a bureaucratic effort, even a little one.
It is no way to run an oversight process. If the government is going to set up compliance programs with the specter of a court order looming at the end, then it should not expect that courts will stay out of the process from the beginning. That is how regulation works in this country, and if prosecutors are going to fashion themselves as regulators, then they are going to have to take the bitter with the sweet.
Link here, details below.
The Rutgers Center for Corporate Law and Governance is presenting a conference on corporate compliance on Friday, May 20, 2016, from 8:30 AM to 3:30 PM, entitled New Directions in Corporate Compliance. The conference will take place at Rutgers Law School, 217 North Fifth Street, Camden, NJ 08102.
Corporate and regulatory compliance has exploded as an area of importance to a variety of business organizations in recent years. Corporate compliance programs must be well planned and rigorously implemented throughout a business organization. Notwithstanding the importance of corporate compliance, there is disagreement over the best way to implement and enforce a compliance program.
This conference will bring together academics, practitioners, and government officials, who approach compliance from different perspectives. The conference will include sessions on litigating the adequacy of a compliance program, structural issues in the compliance department, and organizational culture and developing a culture of compliance. Andrew Donohue, Chief of Staff of the U.S. Securities and Exchange Commission, will present a keynote luncheon address.
Other speakers include: Catherine Bromilow, Partner, PwC Center for Board Governance; Stephen L. Cohen, Associate Director, Securities and Exchange Commission; James Fanto, Gerald Baylin Professor of Law, Brooklyn Law School; Donald C. Langevoort, Thomas Aquinas Reynold Professor of Law, Georgetown Law; Joseph E. Murphy, Author of 501 Ideas for Your Compliance & Ethics Program; Donna Nagy, C. Ben Dutton Professor of Law, Indiana University Maurer School of Law; Charles V. Senatore, Executive Vice President, Fidelity Investments, Greg Urban, Arthur Hobson Quinn Professor of Anthropology, University of Pennsylvania; and John Walsh, Partner, Sutherland
The conference is free and open to the public. A reception will follow. To RSVP, please contact Deborah Leak at email@example.com. CLE credit is available for NJ, NY, and PA. For additional information about CLE credit, contact Deborah Leak.
On the Friday in the midst of a heated presidential season, I thought we could take a spin through some of the Presidential candidates' online stores and see what merchandise is on offer. After all, the Glom's motto is "Business|Law|Economics|Society." What crosses those boundaries better than the stuff that the candidates are selling?
LLCs, New Charitable Forms, and the Rise of Philanthrocapitalism
2017 AALS Annual Meeting
January 3-7, 2017
San Francisco, CA
In December 2015, Facebook founder Mark Zuckerberg and his wife, Dr. Priscilla Chan, pledged their personal fortune—then valued at $45 billion—to the Chan-Zuckerberg Initiative (CZI), a philanthropic effort aimed at “advancing human potential and promoting equality.” But instead of organizing CZI using a traditional charitable structure, the couple organized CZI as a for-profit Delaware LLC. CZI is perhaps the most notable example, but not the only example, of Silicon Valley billionaires exploiting the LLC form to advance philanthropic efforts. But are LLCs and other for-profit business structures compatible with philanthropy? What are the tax, governance, and other policy implications of this new tool of philanthrocapitalism? What happens when LLCs, rather than traditional charitable forms, are used for “philanthropic” purposes?
From the heart of Silicon Valley, the AALS Section on Agency, Partnerships LLCs, and Unincorporated Associations and Section on Nonprofit and Philanthropy Law will host a joint program tackling these timely issues. In addition to featuring invited speakers, we seek speakers (and papers) selected from this call.
Any full-time faculty of an AALS member or fee-paid school who has written an unpublished paper, is working on a paper, or who is interested in writing a paper in this area is invited to submit a 1- or 2-page proposal by June 1, 2016. The Executive Committees of the Sections will review all submissions and select two papers by July 1, 2016. If selected, a very polished draft must be submitted by November 30, 2016. All submissions and inquiries should be directed to the Chairs of the Sections at the email addresses below:
University of Oregon School of Law
Garry W. Jenkins
Associate Dean for Academic Affairs
John C. Elam/Vorys Sater Professor of Law
Moritz College of Law, Ohio State University
I usually think of dispute resolution has a question of the delegation of control. If you negotiate a settlement, you control the process and the decision. If you arbitrate or sue, you delegate decision (and with courts, process) control to someone else. Mediation is somewhere between those two poles, where you control the decision put let the mediator intervene in the process.
That's not really what happened in the Argentinian debt negotiations, which were recently concluded successfully.
Mediating in closed-door negotiations, Mr. Pollack cajoled both sides, at times resorting to theatrical moves like getting a court order to summon Mr. Singer, the founder of Elliott, to his office.
Mr. Pollack is a senior trial lawyer, one who doesn't particularly sound like an orthodox mediator. Using a court order to force one of the parties to a mediation to negotiate is a bit more process control that most mediators usually have. Anyway, a deal was reached, and I think you're supposed to say that a good mediator leaves everyone feeling a little bit unhappy:
Mr. Pollack’s rule of no pens and paper during crucial negotiations frustrated some, with two hedge fund managers complaining privately that the mediator was an obstacle to the settlement process.
If you like getting into the weeds of a settlement negotiation, I commend this story.
The list is out! And it contains many former Glom guests and friends of Glom. Congratulations to all.
Bartlett, Robert P. III. Do Institutional Investors Value the Rule 10b-5 Private Right of Action? Evidence from Investors' Trading Behavior following Morrison v. National Australia Bank Ltd. 44 J. Legal Stud. 183-227 (2015).
Bebchuk, Lucian, Alon Brav and Wei Jiang. The Long-term Effects of Hedge Fund Activism. 115 Colum. L. Rev. 1085-1155 (2015).
Bratton, William W. and Michael L. Wachter. Bankers and Chancellors. 93 Tex. L. Rev. 1-84 (2014).
Cain, Matthew D. and Steven Davidoff Solomon. A Great Game: The Dynamics of State Competition and Litigation. 100 Iowa L. Rev. 465-500 (2015).
Casey, Anthony J. The New Corporate Web: Tailored Entity Partitions and Creditors' Selective Enforcement. 124 Yale L. J. 2680-2744 (2015).
Coates, John C. IV. Cost-benefit Analysis of Financial Regulation: Case Studies and Implications. 124 Yale L .J. 882-1011 (2015).
Edelman, Paul H., Randall S. Thomas and Robert B. Thompson. Shareholder Voting in an Age of Intermediary Capitalism. 87 S. Cal. L. Rev. 1359-1434 (2014).
Fisch, Jill E., Sean J. Griffith and Steven Davidoff Solomon. Confronting the Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a Proposal for Reform. 93 Tex. L. Rev. 557-624 (2015).
Fried, Jesse M. The Uneasy Case for Favoring Long-term Shareholders. 124 Yale L. J. 1554-1627 (2015).
Judge, Kathryn. Intermediary Influence. 82 U. Chi. L. Rev. 573-642 (2015).
Kahan, Marcel and Edward Rock. Symbolic Corporate Governance Politics. 94 B.U. L. Rev. 1997 (2014).
Velikonja, Urska. Public Compensation for Private Harm: Evidence from the SEC's Fair Fund Distributions. 67 Stan. L. Rev. 331-395 (2015).
Uber has settled two California class actions in which the underlying issue was their employee status. The company will pay up to $100 million to the class of roughly 385,000 drivers and also provide a new process for "deactivation" that provides drivers with a voice in whether Uber takes them off of its platform. There is a lot of great academic writing about Uber out there, and I hope to contribute to the lit soon, but at present I just wanted to flag two quick points:
- This "settlement" does not and cannot settle the ultimate issue of whether Uber drivers are employees or independent contractors. As Shannon Liss-Riordan, the attorney representing the drivers in the suit (as well as a classmate of David and mine), said in a statement: "“Importantly, the case is being settled — not decided. No court has decided here whether Uber drivers are employees or independent contractors and that debate will not end here." I suppose this class of drivers is giving up their claims, but it's not preclusive to future drivers or the State of California or Massachusetts or the IRS, as far as I can tell. So what exactly is Uber getting for its money? These class claims are settled (if the court approves), but the issue remains open and will continue to generate potential claims down the road. However, Uber does get a temporary litigation reprieve and a better relationship with its drivers. Which leads to the second point . . . .
- This settlement really looks like a collective bargaining agreement. It provides the workers with:
- additional pay (aka a settlement "bonus") based on miles driven
- a peer-driven arbitration-like process for deactivation (aka termination)
- an internal arbitration-like process for pay disputes
- a notification that tips are not included in the Uber fee, and
- the facilitation and recognition of an Uber Driver Association who will bargain with Uber (or, in the works of the press release, "who will be able to bring drivers' concerns to Uber management, who will engage in good faith discussions (on a quarterly basis) regarding how to address these concerns")
That last one really clinches it, no? But if the drivers are not employees, then will this Driver Association be an unlawful restraint of trade? Or will the NLRB find the drivers to be employees despite the settlement and then find that Uber has violated NLRA Sec. 8(a)(2) by providing assistance to a labor organization? (Uber's CEO says the company "will help fund these two associations.")
Congrats to Shannon and the Uber drivers for pulling off what looks to be a real step forward for the drivers' relationship with the company. But in my view, the settlement that seeks to confirm that drivers are not employees only ends up making them look even more like employees.
If you're interested, details after the jump.
I enjoyed this article about Swedish software (now headquartered in San Mateo--that Silicon Valley pull is hard to resist) Neo Technology, whose graphic database Neo4j allowed investigative journalists to make connections between the vast amounts of data contained in 11.5 million documents. Equally fun for me is that an MIS professor at the business school forwarded me the article because a project on which we're collaborating will use Neo4j. I'm cutting edge!
Neo Technology has paying clients that use the technology to crunch data in the service of worthy goals like giving online purchasers customized recommendation (Walmart) and fraud prevention (UBS). But here's the money quote: "Eifrem lets investigative journalists use the free version of his software. 'I’m not in the business to make money out of eight journalists who are trying to save the world—that’s not my business model,' he said, laughing."
Call for Papers
AALS Section on Securities Regulation - 2017 AALS Annual Meeting
January 3-7, 2017, San Francisco
The AALS Section on Securities Regulation invites papers for its program on “Securities Regulation and Technological Change” at the 2017 AALS annual meeting.
TOPIC DESCRIPTION: This panel discussion will explore the intersection of securities regulation and technology. The Executive Committee welcomes papers on a broad range of related topics, including technology in financial markets, high frequency trading, crowdfunding, transactional and financial innovation, securities offering reform, and information overload.
ELIGIBILITY: Full-time faculty members of AALS member law schools are eligible to submit papers. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.
PAPER SUBMISSION PROCEDURE: Up to four papers may be selected from this call for papers. There is no formal requirement as to the form or length of proposals. However, more complete drafts will generally be given priority over abstracts, and presenters are expected to have a draft for commentators three weeks prior to the beginning of the AALS conference.
Papers will be selected by the Section's Executive Committee in a double-blind review. Please submit only anonymous papers by redacting from the submission the author's name and any references to the identity of the author. The title of the email submission should read: "Submission - 2017 AALS Section on Securities Regulation."
Please email submissions to the Section Chair Verity Winship at: firstname.lastname@example.org on or before August 19, 2016.
Welcome to the blawgosphere/blogosphere: The Surly Subgroup: Tax Blogging on a Consolidated Basis! This new blog was launched fittingly on Tax Day (yesterday). Sorry I missed the launch, but I was running to the post office. The array of authors promises interesting takes on a variety of tax issues: Jennifer Bird-Pollan, Benjamin Leff, Leandra Lederman, Philip Hackney, David Herzig, Stephanie Hoffer, Diane Ring, Sam Brunson, and Shu-Yi Oei.
In March 2015, the Stetson Law Review hosted a symposium on "Inequality, Opportunity, and the Law of the Workplace." The day was a terrific opportunity to think about how the concern about income inequality -- the focus of this guy's campaign -- is and can be addressed by the law, especially labor and employment law. The symposium is dedicated to Michael Zimmer, who tragically passed away months after the symposium. Below are links to videos of the event and to papers published from the symposium:
Panel One (Bagenstos, Mishel, Sonn)
Panel Two (Garden, Willborn)
Panel Three (Bodie, Stone, Zimmer)
- Jason Bent, Symposium Introduction and Dedication
- Michael Zimmer, Can Dystopia be Avoided? Increasing Economic Inequality Can Lead to Disaster
- Viktoryia Johnson, Florida Workers' Compensation Act: The Unconstitutional Erosion of the Quid Pro Quo
- Lawrence Mishel and Ross Eisenbrey, How to Raise Wages: Policies that Work and Policies that Don't
- Steven Willborn, Indirect Threats to the Wages of Low-Income Workers: Garnishment and Payday Loans
- Wilma Liebman, "Regilding the Gilded Age": The Labor Question Reemerges
- Giovanni Giarratana, The Employment Non-Discrimination Act After Hobby Lobby: Striving for Progress--Not Perfection
- Matt Bodie, Income Inequality and Corporate Structure
Glom readers, it has been a busy semester! I am trying to get back to blogging, and will start with some happy news. I've been obsessing about the politics of securities regulation for some time--specifically, why did we get the JOBS Act, and more generally what explains why and when Congress intervenes in securities law. Between teaching and associate deaning I've also been writing, and I'm proud to report I now have a draft posted on SSRN and accepted at the Indiana Law Journal. Abstract below; comments welcome.
When Congress undertakes major financial reform, either it dictates the precise contours of the law itself or it delegates the bulk of the rulemaking to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rulemaking to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling and more vulnerable than statutes to judicial challenge.
This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine pieces of congressional legislation. The data support what I call the dictation/delegation thesis. According to this thesis, even controlling for shifts in political-party dominance, Congress is more likely to delegate to an agency in the wake of a salient securities crisis than in a period of economic calm. In times of prosperity, when cohesive interest groups with unitary preferences can summon enough political will to pass deregulatory legislation on their behalf, the result will be laws that cabin agency discretion. In other words, when industry can play offense, Congress itself engages in the making of governing rules and does not punt to an agency—even on issues that would seem the logical province of administrative technocrats. In contrast, following a crisis, industry is forced to play defense rather than offense. Its goal is to minimize the deleterious impact of inevitable legislation by shifting regulation as much as possible to the agency level, where it has time to regroup and often delay regulation until the political pressure for reform abates.
Just wanted to say congratulations to both the SMU Dedman School of Law and my coauthor Grant Hayden on Grant's upcoming move to SMU. Grant is going there along with Joanna Grossman, James Coleman, and Dale Carpenter -- a terrific group of lateral hires. Along with a few articles in the works, Grant and I are working on a book for Cambridge titled "Reconstructing the Corporation." I'm excited for him and Joanna and congratulate SMU Dean Jennifer Collins and the SMU faculty for choosing an excellent set of new colleagues.
The Southern Methodist University (SMU) Dedman School of Law and the University of Houston Law Center are sponsoring The 2016 Texas Legal Scholars Workshop. Here is the announcement:
Would you like early-stage feedback on a research idea? Or late-stage feedback on an article ready for submission? Or something in between? Your colleagues at SMU and Houston invite you to join us for the second annual Texas Legal Scholars Workshop, to be held on August 26-27, 2016, at the SMU Dedman School of Law in Dallas, Texas. The Texas Legal Scholars Workshop provides an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.
At the Workshop, each author will present a 5-10 minute synopsis of his or her paper, followed by 15-20 minutes of comments by a primary commenter, followed by an open discussion with other attendees.
The workshop will give participants the chance to meet other early-career scholars in Texas, share feedback on research, and enjoy a few social events. There is no registration fee. Attendees are responsible for their own hotel and travel expenses, but SMU will pay for meals, including a hosted dinner at a restaurant on Friday night.