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Tuesday, March 3, 2015
A Delaware Law Insider: A Nexus between Shareholder Activism & Hobby Lobby?
The Fordham Journal of Corporate and Financial Law recently published a March 6, 2014, lecture from Former Delaware Supreme Court Chief Justice Myron T. Steele, Continuity and Change in Delaware Corporate Law Jurisprudence (available on Westlaw, but fee may apply). As an aside, I'll note that it appears to have taken a full calendar year for this to get published (at least on Westlaw), which seems crazy to me. If there's any question why legal blogs can fill such a critical role in providing timely commentary on legal issues, this is a big part of the answer.
In the lecture, Chief Justice Steele discusses three main areas: (1) multi-forum jurisdiction, (2) shareholder activism, and (3) the Nevada, Delaware, and North Dakota Debate (a "competition for charters").
As to multi-forum jurisdiction, he makes the unsurprising point that Delaware courts are of the view that first impressions of the Delaware General Corporation Law or other "internal affairs doctrine" issues should be handled in Delaware courts. Of note, he explains that the Delaware constitution (art. IV, § 11(8)) now allows federal courts, the top court from any state, the SEC, and bankruptcy courts to certify questions directly to the Delaware Supreme Court. This option is one that lawyers litigating such cases in other forums won't want to miss.
With regard to shareholder activism, Chief Justice Steele states,
In my preferred system for the world, and I think in the minds of all Delaware judges, engaged if not antagonistic stockholders add positive value as a check on director authority and are a catalyst for corrective accountability, so long as their efforts focus on improved performance and not the advancement of political or personal agendas--a major caveat in my view. Delaware courts, it seems to me, will increasingly recognize the benefits that engaged investors bring to the table.
State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, §351 (2011) (providing that certificate of incorporation may provide how "the business of the corporation shall be managed"). Courts will turn to that structure and the underlying state law in resolving disputes.
The corporate form in which [an Delaware corporation] operates, however, is not an appropriate vehicle for purely philanthropic ends, at least not when there are other stockholders interested in realizing a return on their investment. . . . Having chosen a for-profit corporate form, . . . directors are bound by the fiduciary duties and standards that accompany that form. Those standards include acting to promote the value of the corporation for the benefit of its stockholders.
Thus, in Delaware a for-profit corporation cannot promote or practice the religious views of even a majority of directors or shareholders where such actions do not promote the value of the corporation for shareholders.
Finally, as to the Nevada, Delaware, North Dakota debate, Chief Justice Steele questions the value of Nevada allowing "charters to exculpate directors for breaches of duty of loyalty," because he thinks such a massive change in widely held views of fiduciary duty law could invite federal "meddling." I think he's exactly right on this. He notes with skepticism the North Dakota Publicly Traded Corporations Act because there are only two companies that have adopted the law, but the law's failure in the competition for charter does not raise the same concerns of a race to the bottom (my words) that Nevada's law provides.
I think Chief Justice Steele's article provides interesting and useful insight into the workings of the Delaware court system, and I recommend the sort read. I just wish I had seen it about nine months ago.
March 3, 2015 in Business Associations, Corporate Governance, Corporate Personality, Corporations, Delaware, Joshua P. Fershee, Social Enterprise | Permalink | Comments (0)
Monday, February 23, 2015
Benefit Corporations: What am I Missing--Seriously?
I serve on the Tennessee Bar Association Business Entity Study Committee (BESC) and Business Law Section Executive Committee (mouthfuls, but accurately descriptive). The BESC was originated to vet proposed changes to business entity statutes in Tennessee. It was initially populated by members of the Business Law Section and the Tax Law Section, although it's evolved to mostly include members of the former with help from the latter. The Executive Committee of the Business Law Section reviews the work of the BESC before Tennessee Bar Association leadership takes action.
Just about every legislative session of late, these committees of the Tennessee Bar Association have been asked to review proposed legislation on benefit corporations (termed variously depending on the sponsors). A review request for a bill proposed for adoption for this session recently came in. Since I serve on both committees, I get to see these proposed bills all the time. So far, the proposals have pretty much tracked the B Lab model from a substantive perspective, as tailored to Tennessee law. To date, we have advised the Tennessee Bar Association that we do not favor this proposed legislation. Set forth below is a summary of the rationale I usually give.
February 23, 2015 in Business Associations, Corporate Finance, Corporate Governance, Corporations, Current Affairs, Entrepreneurship, Haskell Murray, Joan Heminway, Social Enterprise | Permalink | Comments (16)
Wednesday, February 18, 2015
Updated Social Enterprise Map
My colleague at Georgia State, Cass Brewer, posted on SOCENT (social enterprise) Law, an update to his incredibly useful social enterprise map. On this blog and in other fora, I have discussed with many of you teaching BA whether you cover social enterprises and, if so, to what extent. This is a great resource if you do anything in the area.
How cool is this?
-Anne Tucker
February 18, 2015 in Business Associations, Anne Tucker, Social Enterprise | Permalink | Comments (0)
Thursday, February 5, 2015
The SEC's Inaction on No Action
Many corporate governance professionals have been scratching their heads lately. In November, a federal judge in Delaware ruled that Wal-Mart had wrongfully excluded a shareholder proposal by Trinity Wall Street Church regarding the sale of guns and other products. Specifically, the proposal requested amendment of one of the Board Committee Charters to:
27. Provid[e] oversight concerning the formulation and implementation of, and the public reporting of the formulation and implementation of, policies and standards that determine whether or not the Company [i.e., Wal-Mart] should sell a product that:
1) especially endangers public safety and wellbeing;
2) has the substantial potential to impair the reputation of the Company; and/or
3) would reasonably be considered by many offensive to the family and community values integral to the Company's promotion of its brand.
Wal-Mart filed with the SEC under Rule 14a-8 indicating that it planned to exclude the proposal under the ordinary business operations exclusion. The SEC agreed that there was a basis for exclusion under 14a-8(i)(7), but the District Court thought otherwise because the proposal related to a "sufficiently significant social policy." In mid-January Wal-Mart appealed to the Third Circuit arguing among other things that the district court should have deferred to the SEC's precedents and guidance over the past forty years on these issues.
In an unrelated but relevant matter in December 2014, the SEC issued a no action letter to Whole Foods stating:
You represent that matters to be voted on at the upcoming stockholders' meeting include a proposal sponsored by Whole Foods Market to amend Whole Foods Market's bylaws to allow any shareholder owning 9% or more of Whole Foods Market's common stock for five years to nominate candidates for election to the board and require Whole Foods Market to list such nominees with the board's nominees in Whole Foods Market's proxy statement. You indicate that the proposal and the proposal sponsored by Whole Foods Market directly conflict. You also indicate that inclusion of both proposals would present alternative and conflicting decisions for the stockholders and would create the potential for inconsistent and ambiguous results. Accordingly, we will not recommend enforcement action to the Commission if Whole Foods Market omits the proposal from its proxy materials in reliance on rule 14a-8(i)(9).
In a startling turn of events, the SEC withdrew its no action letter on January 16, 2015 after a January 9th letter from the Council of Institutional Investors questioning the reasoning in the Whole Foods and similar no action letters. The withdrawal of the no action letter came on the same day as the release an official SEC statement declining "to express a view on the application of Rule 14a-8(i)(9) during the current proxy season" due to questions about the scope and application of the rule.
Yesterday, the Center for Capital Market Competitiveness ("CCMC"), an arm of the Chamber of Commerce, sent its own letter to Chair White lamenting the current state of affairs. An excerpt is below:
This announcement, a contradictory departure from a decision made just weeks earlier, benefits neither issuers nor investors and introduces an additional layer of uncertainty into an already complicated set of rules. The CCMC believes this reversal underscores why corporate governance policies must provide certainty for all stakeholders, not just to advance the goals of a small minority of special interest activists….[t]he January 16 announcement places many issuers in an untenable position, and presents them with a series of questions for which there may be no good answers. For those issuers wishing to present their own alternative proposal to shareholders for consideration, do they exclude a shareholder proposal in favor of their own and face the heightened risk of litigation with the proponent or the Commission? Do they risk shareholder confusion by including both their own proposal and a competing one from a proponent? Do they incur the added expense and distraction to management of seeking declaratory relief in federal district court? Are shareholders deprived of their right to include a proposal that is omitted because of the absence of SEC action? Far from encouraging private ordering, the recent announcement will only serve to stymie it.
The CCMC also recommends a review of the entire 14a-8 process because, as the letter claims, "it is well-known that the shareholder proposal process has been dominated by a small group of special interest activists, including groups affiliated with organized labor, certain religious orders, social and public policy advocates, and a handful of serial activists. These special interests use the shareholder proposal process to pursue their own idiosyncratic agendas, often far removed from the mainstream, as evidenced by the overall low approval rates of many shareholder proposals that are put to a vote. Indeed, mainstream institutional investors account for only one percent of shareholder proposals at the Fortune 250."
Reasonable people may disagree on how the CCMC characterizes the motives behind the shareholder proposals, but there can be no disagreement that the current SEC silence doesn't serve any constituency. Steve Bainbridge also has an informative post on this topic. Proxy season is coming up and shareholders and companies alike are awaiting a decision from the Third Circuit in the Wal-Mart action that could dramatically alter the landscape for shareholder proposals, possibly flooding the courts with expensive, protracted litigation. The timing couldn't be worse for the SEC's lack of action on no action letters.
February 5, 2015 in Corporate Finance, Corporate Governance, Corporations, Current Affairs, Delaware, Financial Markets, Marcia Narine, Securities Regulation, Social Enterprise | Permalink | Comments (0)
Tuesday, February 3, 2015
A Jogger's Story: A Nike+ Marketing Reminder About Loyalty, Transparency, and Expectations
Anyone who has followed me on Twitter knows that I am a pretty regular runner. I try to run at least four times a week, and depending on the time of year, my schedule, and other variables, I have run as much as six times a week.
It was not always this way. I have asthma, which didn't help much as a kid, but that problem has been controlled by medication for years. And although I was a soccer player, I was not much of a runner. Goalkeepers often aren't. In my older years, I was known to say from time to time, "I only run when being chased."
Sometime in 2011, that changed. I started running three miles, most days. I got a pair of the Nike Free Run Shoes, which may or may not have helped, but I was less sore then I was with the old, stable, and heavy, running shoes I would previously tried to run. Not long after that I got the Nike+ running app, which tracked my runs and served as a motivator and something of a personal accountability measure, as I shared my run with friends.
In a little more than three years, I ran 769 times and logged 2569 miles on the Nike+ running app. Not bad.
For me, it was figuring out that I didn't have to commit to a marathon, or even a 10K. I went for three-mile runs each time, and about a year ago I upped that run to about 3.5 miles each time out, and I never worry about a longer run. I found what I could stick to, and the Nike+ app helped me see just how much I was accomplishing in relatively short, but regular, outings. I recommend giving it a try, if you'd like to run, but it always seemed to hard.
So, this is a long introduction to my breakup with Nike+. Nike created a thing at the end of 2014 called the "Out Do You Challenge." It made a nice (kind of goofy) little video that chronicled the year for some of my friends who have accomplished some impressive feats. Things like marathons. That's great, and a nice, if a bit cheesy reward for a year of effort.
The site offers a place to click to see if you "made the cut for the challenge." I did not. Okay, so it's not that I deserve anything or that Nike kept something from me that I had a right to. Their site and app; their rules. But it still seemed a little odd, given that I am a connected and regular user, who shared all his runs on social media, and had run as much as 200 miles more than others deemed "worthy."
Being the connected user that I am, I inquired. The response from Nike was as follows: "We are sorry to hear that you weren't selected for the Nike+ Outdo You Challenge. We selected our top Nike+ users who met the highest level of engagement and had complete profile information."
Again, they get to make the rules, but it's hard to see how I wouldn't make the grade based on how often I used the app. For some reason, this irked (and still irks) me, and I couldn't figure out why. Then it dawned on me: in my own stupid way, I felt betrayed. I was thinking: We had been in this together for 2,500 miles. I had stuck with it when the app was not working and the only way to fix it was to email support for help. I had run with Nike+ in Warsaw and Krakow and London and Spain and all over the United States. We did it together. And now I was left out.
So, it occurred to me that I was being silly. It is pretty silly, but it's still how I felt. And it's also a lesson in how to keep people connected and engaged.
If there had been a target or a message – "you need to run at least a half marathon" or "we need your home address" – that made clear what was required, then I can choose if I am in. Instead, Nike decided to create a post hoc award for certain participants. Again, their choice, but in doing so they excluded someone who thought they were part of the team. And that undermines loyalty.
I'm not saying I won't run in Nike shoes any more or that I'll never use the Nike+ app. I might. But I am also auditioning others. Currently, I am running with MapMyRun to see how I like that. In addition to Nike, I will be trying some other options – maybe Brooks, Rebook, or Adidas – in my next trip to the running shop.
This is a good lesson in marketing, I think, but also in teaching. The best teachers cultivate trust. They have high expectations, and if they aren't met, the students usually know. I try to be transparent with my students about what I expect, and why, so that they know whether they are on track or not. I am sure, though, that during my career, I have surprised some students who felt betrayed because they thought they were on track, yet their grade did not coincide with what they thought they put in.
I know I am a lot better today about sharing and explaining those expectations today than I was when I started as a teacher, but it's good to be reminded of just how critical it can be as transparent as possible with your expectations. So, thanks, Nike+, for the reminder. Maybe I'll be back. Maybe not.
February 3, 2015 in Joshua P. Fershee, Law School, Social Enterprise, Sports | Permalink | Comments (1)
Friday, January 23, 2015
Social Enterprise Resources Updated - January 2015
I recently updated my research chart entitled Corporate Forms of Social Enterprise: Comparing the State Statutes. Always open to suggestions on how to improve the chart.
As the number of corporation-based social enterprise state statutes has grown, the chart has become a bit unwieldy. Previous versions of the chart went state by state, detailing the differences from the Model statute. I think the new format (a short summary chart with details in the footnotes) is better for comparing/contrasting the state statutes, but is still far from perfect. For example, some of the abbreviations used in the summary chart require going to the footnotes for explanation, but it is difficult to remedy that and keep the summary chart short.
Also, here is a link to the latest report of Delaware Public Benefit Corporations ("PBCs"). [This is my first time linking to an outside Excel sheet, but it worked for me by saving to my Desktop and then opening.] The number of Delaware PBCs has grown to 234 entities. This is still tiny in comparison to the more than 1 million total entities in Delaware, but it is still early.
January 23, 2015 in Business Associations, Haskell Murray, Social Enterprise | Permalink | Comments (0)
Friday, December 19, 2014
Social Subsidiaries
This week I had nice conversations with Brad Edmondson (Author of Ice Cream Social: The Struggle for the Soul of Ben & Jerry's) and Michael Pirron (CEO of ImpactMakers, a certified benefit corporation).*
Both conversations turned to a topic that has been on my mind recently – that of social businesses that are acquired by large conglomerates that do not seem to have a similar mission.
A few of the parent/sub relationships that spring to mind (or that were discussed) include:
- Campbell Soup / Plum Organics
- Coca-Cola / Honest Tea
- Colgate-Palmolive / Tom's of Maine
- Clorox / Burt's Bees
- Group Danone / Stonyfield Farm
- Unilever / Ben & Jerry's
I may update this list from time to time, so feel free to suggest additions in the comments.
At The Guardian, Kyle Westaway argues that Burt Bees worked from within Clorox to make the entire company more sustainable. Similarly, some argue that Unilever has become more sustainable after (and maybe because of) their acquisition of Ben & Jerry's.
I have heard others argue that social businesses like Burt's Bees and Ben & Jerry's "sold out," and that the acquiring large conglomerates tend to cut many socially beneficial initiatives. The conglomerates, these folks argue, are only doing enough for society to keep the customer goodwill and the resulting profits.
While each acquisition is different, I imagine both sides of the argument can find some support in the facts.
As someone interested in corporate governance, I hope to explore the governance issues involved when a conglomerate owns a social subsidiary in future articles. In Ben & Jerry's case, I know they put a number of interesting clauses into the acquisition agreement, such as restricting certain action by Unilever regarding employees and local operations (for a period of time) and establishing an independent (and I believe self-perpetuating) board of directors for Ben & Jerry's. I am still investigating exactly how much power the Ben & Jerry's board of directors has, and Unilever did eventually lay off some Ben & Jerry's employees and close some local plants. In addition, Unilever and Ben & Jerry's have not always agreed and have taken different, public stances on issues like GMO labeling. But Unilever has become a champion of sustainability among larger companies.
Personally, I am not sure whether social businesses will tend to have more impact as independent businesses or as social subsidiaries of larger companies – and it may be impossible to generalize – but I will continue to watch future acquisitions and development in this area with interest.
* My co-bloggers Joan Heminway and Marcia Narine may remember Michael Pirron from a Regent Law symposium they spoke at on social enterprise law. That was a fun conference and it was good to catch up with Micheal and hear how much his company has grown in the past year and a half.
December 19, 2014 in Business Associations, Corporate Governance, Corporations, CSR, Haskell Murray, Social Enterprise | Permalink | Comments (2)
Friday, December 5, 2014
Data on Social Enterprises
An early, brief look at some of the social enterprise data I have been collecting with Kate Cooney (Yale School of Management), Justin Koushyar (Emory University, PHD student) and Matthew Lee (INSEAD, Singapore Campus), is up on the Stanford Social Innovation Review (SSIR).
The charts produced over at SSIR include the number of social enterprise statutes passed per year, total number of L3Cs and benefit corporations formed, and -- the most difficult data to track down -- the number of social enterprises formed by state.
We are still working to refine the state-by-state data, hope to continue to update it, and may use it for future empirical work.
December 5, 2014 in Business Associations, Entrepreneurship, Haskell Murray, Social Enterprise | Permalink | Comments (0)
Thursday, November 27, 2014
Can a socially responsible person shop on Thanksgiving or Black Friday?
As regular readers know, I research and write on business and human rights. For this reason, I really enjoyed the post about corporate citizenship on Thanksgiving by Ann Lipton, and Haskell Murray's post about the social enterprise and strategic considerations behind a "values" message for Whole Foods, in contrast to the low price mantra for Wal-Mart. Both posts garnered a number of insightful comments.
As I write this on Thanksgiving Day, I'm working on a law review article, refining final exam questions, and meeting with students who have finals starting next week (being on campus is a great way to avoid holiday cooking, by the way). Fortunately, I gladly do all of this without complaint, but many workers are in stores setting up for "door-buster" sales that now start at Wal-Mart, JC Penney, Best Buy, and Toys R Us shortly after families clear the table on Thanksgiving, if not before. As Ann pointed out, a number of protestors have targeted these purportedly "anti-family" businesses and touted the "values" of those businesses that plan to stick to the now "normal" crack of dawn opening time on Friday (which of course requires workers to arrive in the middle of the night). The United Auto Workers plans to hold a series of protests at Wal-Mart in solidarity with the workers, and more are planned around the country.
I'm not sure what effect these protests will have on the bottom line, and I hope that someone does some good empirical research on this issue. On the one hand, boycotts can be a powerful motivator for firms to change behavior. Consumer boycotts have become an American tradition, dating back to the Boston Tea Party. But while boycotts can garner attention, my initial research reveals that most boycotts fail to have any noticeable impact for companies, although admittedly the negative media coverage that boycotts generate often makes it harder for a companies to control the messages they send out to the public. In order for boycotts to succeed there needs to be widespread support and consumers must be passionate about the issue.
In this age of "hashtag activism" or "slacktivism," I'm not sure that a large number of people will sustain these boycotts. Furthermore, even when consumers vocalize their passion, it has not always translated to impact to lower revenue. For example, the CEO of Chick-Fil-A's comments on gay marriage triggered a consumer boycott that opened up a platform to further political and social goals, although it did little to hurt the company's bottom line and in fact led proponents of the CEO's views to develop a campaign to counteract the boycott.
Similarly, I'm also not sure of the effect that socially responsible investors can have as it relates to these labor issues. In 2006, the Norwegian Pension Fund divested its $400 million position (over 14 million shares in the US and Mexico operations) in Wal-Mart. In fact, Wal-Mart constitutes two of the three companies excluded for "serious of systematic" human rights violations. Pension funds in Sweden and the Netherlands followed the Fund's lead after determining that Wal-Mart had not done enough to change after meetings on its labor practices. In a similar decision, Portland has become the first major city to divest its Wal-Mart holdings. City Commissioner Steve Novick cited the company's labor, wage and hour practices, and recent bribery scandal as significant factors in the decision. Yet, the allegations about Wal-Mart's labor practices persist, notwithstanding a strong corporate social responsibility campaign to blunt the effects of the bad publicity. Perhaps more important to the Walton family, the company is doing just fine financially, trading near its 52-week high as of the time of this writing.
I will be thinking of these issues as I head to Geneva on Saturday for the third annual UN Forum on Business and Human Rights, which had over 1700 companies, NGOs, academics, state representatives, and civil society organizations in attendance last year. I am particularly interested in the sessions on the financial sector and human rights, where banking executives and others will discuss incorporation of the UN Guiding Principles on Business and Human Rights into the human rights policies of major banks, as well as the role of the socially responsible investing community. Another panel that I will attend with interest relates to the human rights impacts in supply chains. A group of large law firm partners and professors will also present on a proposal for an international tribunal to adjudicate business and human rights issues. I will blog about these panels and others that may be of interest to the business community next Thursday. Until then enjoy your holiday and if you participate in or see any protests, send me a picture.
November 27, 2014 in Ann Lipton, Conferences, Corporate Finance, Corporate Governance, Corporations, CSR, Current Affairs, Ethics, Financial Markets, Haskell Murray, International Business, Marcia Narine, Securities Regulation, Social Enterprise | Permalink | Comments (0)
Friday, November 21, 2014
Prices versus Process
Whole Foods recently launched its first national advertising campaign around the theme "Values Matter." Some outlets claim that the campaign is a response to weak comparable store sales. Supposedly, Whole Foods is spending between $15 million and $20 million on this campaign in an attempt to convince customers that "value and values go hand in hand." You can see some of the videos here.
Whole Foods has long been known for its high prices and healthy food. Whole Foods has been actively fighting the high price reputation, but at least in the places I have lived, Whole Foods is usually close to the richest neighborhoods, is entirely absent in less affluent areas, and still seems to have higher prices than most competitors. Whole Foods seems to use a premium product, sold mostly to the upper-class, to fund its commitment to employees, its purchasing from smaller local vendors, and its care for the environment.
Whole Foods seems to focus on impacting society and the environment mostly through the process by which they sell their products and distribute the profits to stakeholders.
Walmart seems to have a very different model. Walmart seems to care much more about low prices than about treating their non-customer stakeholders well. Walmart's extreme pressuring of suppliers, often contentious relationships with the communities around its stores, and low wages/limited benefits for many of its employees [updated] has been widely reported. Walmart seems to be trying to fight its reputation, and it has certainly engaged in some positive activities for society, but its reputation remains.
In contrast to Whole Foods, Walmarts can be found in rural and less affluent areas, and Super-Walmarts are bringing fresh produce to former food deserts at prices that appear to be more affordable. Walmart could argue that it makes a positive impact on society through its low prices.
In short, Whole Food's strategy seems to be – proper process, high prices – while Walmart may allow a poor process to obtain low prices.
Should corporate law, especially social enterprise law such as the recent benefit corporation law, encourage one strategy over the other? The benefit corporation laws appear flexible enough to embrace either, though a more traditional understanding of social enterprise might exclude both on the ground that the companies' primary purpose does not seem to be producing products that serve the disadvantaged. Social enterprise's definition, however, has become much broader over time, though there is currently no consensus.
This struggle with process and prices can be a difficult one, and I am just glad more companies are attempting to find appropriate solutions.
November 21, 2014 in Business Associations, Current Affairs, Haskell Murray, Social Enterprise | Permalink | Comments (6)
Monday, October 27, 2014
Johnson et al "Comments on the HHS' Flawed Post-Hobby Lobby Rules"
In addition to the two letters Anne Tucker mentioned earlier, Lyman Johnson (Washington & Lee and University of St. Thomas) has now organized another group of legal scholars to respond to the HHS post-Hobby Lobby Rules. The Johnson letter is available here.
As Stephen Bainbridge (one of the authors) notes, Lyman Johnson brought together a group of scholars with diverse views for this letter. The letter is worth reading and the abstract is provide below.
In late August 2014, after suffering a defeat in the Supreme Court Hobby Lobby decision when the Court held that business corporations are "persons" that can "exercise religion," the Department of Health and Human Services ("HHS") proposed new rules defining "eligible organizations." Purportedly designed to accommodate the Hobby Lobby ruling, the proposed rules do not comport with the reasoning of that important decision and they unjustifiably seek to permit only a small group of business corporations to be exempt from providing contraceptive coverage on religious grounds. This comment letter to the HHS about its proposed rules makes several theoretical and practical points about the Hobby Lobby holding and how the proposed rules fail to reflect the Court's reasoning. The letter also addresses other approaches to avoid in the rulemaking process and argues for rules that, unlike what the HHS has proposed, align with the Supreme Court's reasoning while being consonant with generally applicable precepts of state law and principles of federalism.
October 27, 2014 in Business Associations, Corporations, Haskell Murray, Religion, Social Enterprise | Permalink | Comments (0)
Friday, October 24, 2014
Ello and Social Enterprise
My co-blogger Stefan Padfield passed along this article from The New York Times Dealbook on the social network Ello.
Ello is a Delaware public benefit corporation. The social enterprise terminology is proving difficult, even for sophisticated authors at the New York Times Dealbook. The article calls Patagonia and Ben & Jerry's public benefit corporations. Patagonia, however, is a California benefit corporation. I wrote about the differences between public benefit corporations and benefit corporations here. Ben & Jerry's is a certified B corporation, but, as far as I know, Ben & Jerry's has not yet made the legal change to convert to any of the social enterprise forms. I wrote about the differences between benefit corporations and certified B corporations here and here. Just as my co-blogger Joshua Fershee remains vigilant at pointing out the differences between LLCs and corporations, so I will remain vigilant on the social enterprise distinctions.
Besides my nitpicking on the use of social enterprise terminology, there are a few other things I want to say about this article.
First, Ello raised $5.5 million dollars, which is not that much money in the financial world, but puts Ello in pretty rare company in the U.S. social enterprise world. The vast majority of U.S. social enterprises are owned by a single individual or family; some social enterprises have raised outside capital, but not many. The increasing presence of outside investors in social enterprise means two main things to me: (1) the social enterprise concept is starting to gain some traction with previously skeptical investors, and (2) we may see a shareholder derivative lawsuit in the near future, which would give us all more to write about.
Second, Ello included a clause in its charter that "forbids the company from using ads or selling user data to make money." This provision seems a direct response to the eBay v. Newmark case. The business judgment rule provides significant protection to directors and, at least theoretically, should calm many of the fears of social entrepreneurs. But risk adverse individuals may seek additional layers of protection.
Third, Ello claims that their charter provision "basically means no investor can force us to take a really good financial deal if it forces us to take advertising." This seems overstated. Charters can be amended, but at least the charter puts outside investors on notice. This provision in the charter does not, however, protect against a change of heart by the founders and a selling of the company (such as in the case of Ben & Jerry's sale to Unilever).
Fourth, this October 4, 2014 article claims that Ello is pre-revenue. The NYT Dealbook article notes that "[u]sers will eventually be able to download widgets and modifications, paying a few dollars for each purchase." (emphasis added). Ello seems to be one of the growing number of technology companies that are being valued by number of users rather than by revenues or profits. Ello "grew from an initial 90 users on Aug. 7 to over a million now, with a waiting list of about 3 million."
Fifth, even if traditional investors are (somewhat) warming up to social enterprises, social entrepreneurs still seem to be a bit skeptical of traditional investors. When raising money, Ello "drew the attention of the usual giants in the venture capital world. . . . But Mr. Budnitz said he instead turned to investors whom he could trust to back the start-up's mission, including the Foundry Group, whom he came to know when he lived in the firm's hometown, Boulder, Colo." There are increasing sources of capital for social enterprises from investors who also have a stated social goal (See, e.g., JP Morgan's May 2014 survey of impact investors).
Some in the academic world have wondered if social enterprise is just a fad. While I am confident that the space will and must continue to evolve, if it is a fad, it has already been a long-running one. The names and details of the statutes may change, but I see a growing interest in marrying profit and social purpose, and I think that interest is likely to continue in some form.
Cross-posted at SocEntLaw.
October 24, 2014 in Business Associations, Corporate Finance, Corporate Governance, Corporations, Delaware, Haskell Murray, Social Enterprise | Permalink | Comments (0)
Friday, October 10, 2014
Collier on "The Plundered Planet" and Breaking Down Silos
Last night (actually this morning around 1 a.m.), I returned to Nashville after a delayed connection on my way back from an excellent conference at Seattle Pacific University. The conference was hosted by SPU's Center for Integrity in Business.
I was only in Seattle for about 48 hours, but the trip was well worth it. As I have mentioned before, there isn't a good substitute for meeting people in person. Seattle Pacific University gathered an excellent, diverse group of practitioners and academics from various disciplines to discuss topics at the intersection of faith and social enterprise. I may write more about the conference later, but am pretty wiped out right now after limited sleep, catching up, and teaching today.
While I seem to always get at least one delayed flight when I travel, I do not mind traveling because I love the quiet time on the plane or the car. (With an 18-month old son at home "quiet" is relatively rare in my life.) Almost always, I can finish at least one full book on the airplane on a trip like this one. This time I read Paul Collier's The Plundered Planet. I might write more on the book later, but for now I will just provide an excerpt from the opening pages:
Environmentalists and economists have been cat and dog. Environmentalists see economists as the mercenaries of a culture of greed, the cheerleaders of an affluence that is unsustainable. Economoists see environmentalists as romantic reactionaries, wanting to apply the brakes to an economic engine that is at last reducing global poverty.
The argument of this book is that environmentalists and economists need each other. They need each other because they are on the same side of a war that is being lost. The natural world is being depleted and natural liabilities accumulated in a manner that both environmentalists and economists would judge to be unethical. But the need for an alliance runs deeper than the practical necessities of preventing defeat. Environmentalists and economists need each other intellectually. (pg. 9)
Paul Collier is a good person to write a book about the intersection of economics and environmentalism; he is an economics professor at Oxford University and his wife is an environmental historian.
This conference at Seattle Pacific University not only brought together economists and environmentalists, but also professors in finance, marketing, management, accounting, political science, geography, psychology, theology, and law. A number of business and legal practitioners, including Bill Clark (the primary drafter of the Model Benefit Corporation Legislation) and multiple business owners, were also part of the group. The conversation was rich, in large part because we all brought different perspectives on the issue from our own areas.
October 10, 2014 in Business School, Haskell Murray, Religion, Social Enterprise | Permalink | Comments (0)
Friday, September 26, 2014
Yockey on The Compliance Case for Social Enterprise
Joseph Yockey (Iowa) has posted a new paper on social enterprise. I have not read this one yet, but enjoyed his first article on the subject and have added this second one to my long "want to read" list. The abstract is below.
Social enterprises generate revenue to solve social, humanitarian, and ecological problems. Their products are not a means to the end of profits, but rather profits are a means to the end of their production. This dynamic presents many of the same corporate governance issues facing other for-profit firms, including legal compliance. I contend, however, that traditional strategies for corporate compliance are incongruent to the social enterprise's unique normative framework. Specifically, traditional compliance theory, with its prioritization of shareholder interests, stands at odds with the social enterprise's mission-driven purpose. Attention to this distinction is essential for developing effective compliance and enforcement policies in the future. Indeed, arguably the greatest feature of the social enterprise is its potential to harness organizational characteristics that inspire the values and culture most closely linked with ethical behavior — without resort to more costly or intrusive measures.
September 26, 2014 in Business Associations, Corporate Governance, Haskell Murray, Social Enterprise | Permalink | Comments (0)
Impact Investing Legal Symposium
The below is from an e-mail I received earlier this week about an impact investment legal symposium on October 2, 2014 from 8:30 a.m. to noon (eastern):
Bingham, in conjunction with the International Transactions Clinic of the University of Michigan Law School, Aspen Network of Development Entrepreneurs (ANDE) Legal Working Group and Impact Investing Legal Working Group, is proud to present a legal symposium on Building a Legal Community of Practice to Add Still More Value to Impact Investments.
The symposium will be held at Bingham McCutchen LLP's New York offices at 339 Park Avenue or you can attend virtually by registering here.
The panelists include Deborah Burand (Michigan), Jonathan Ng (Ashoka), Keren Raz (Paul Weiss), and many others.
September 26, 2014 in Business Associations, Conferences, Corporate Governance, Entrepreneurship, Haskell Murray, Social Enterprise | Permalink | Comments (0)
Tuesday, September 23, 2014
March of the Benefit Corporation: So Why Bother? Isn't the Business Judgment Rule Alive and Well? (Part III)
(Note: This is a cross-posted multiple part series from WVU Law Prof. Josh Fershee from the Business Law Prof Blog and Prof. Elaine Waterhouse Wilson from the Nonprofit Law Prof Blog, who combined forces to evaluate benefit corporations from both the nonprofit and the for-profit sides. The previous installments can be found here and here (NLPB) and here and here (BLPB).)
In prior posts we talked about what a benefit corporation is and is not. In this post, we'll cover whether the benefit corporation is really necessary at all.
Under the Delaware General Corporation Code § 101(b), "[a] corporation may be incorporated or organized under this chapter to conduct or promote any lawful business or purposes . . . ." Certainly there is nothing there that indicates a company must maximize profits or take risks or "monetize" anything. (Delaware law warrants inclusion in any discussion of corporate law because the state's law is so influential, even where it is not binding.)
Back in 2010, Josh Fershee wrote a post questioning the need for such legislation shortly after Maryland passed the first benefit corporation legislation:
I am not sure what think about this benefit corporation legislation. I can understand how expressly stating such public benefits goals might have value and provide both guidance and cover for a board of directors. However, I am skeptical it was necessary.
Not to overstate its binding effects today, but we learned from Dodge v. Ford that if you have a traditional corporation, formed under a traditional certificate of incorporation and bylaws, you are restricted in your ability to "share the wealth" with the general public for purposes of "philanthropic and altruistic" goals. But that doesn't mean current law doesn't permit such actions in any situation, does it?
The idea that a corporation could choose to adopt any of a wide range of corporate philosophies is supported by multiple concepts, such as director primacy in carrying out shareholder wealth maximization, the business judgment rule, and the mandate that directors be the ones to lead the entity. Is it not reasonable for a group of directors to determine that the best way to create a long-term and profitable business is to build customer loyalty to the company via reasonable prices, high wages to employees, generous giving to charity, and thoughtful environmental stewardship? Suppose that directors even stated in their certificate that the board of directors, in carrying out their duties, must consider the corporate purpose as part of exercising their business judgment.
Please click below to read more.
September 23, 2014 in Business Associations, Corporate Governance, Corporate Personality, Corporations, Ethics, Joshua P. Fershee, Religion, Social Enterprise | Permalink | Comments (4)
Sunday, September 14, 2014
Hobby Lobby Redux: 7 Corporate Law/Theory Quotes
This coming Tuesday, I am scheduled to provide a brief overview of the corporate law/theory aspects of Hobby Lobby as part of the University of Akron's Supreme Court Roundup. What follows are the seven key quotes from the opinion that I plan to focus on (time permitting) in order to highlight what I see as the key relevant issues raised by the opinion. Comments are appreciated.
Issue 1: Did corporate theory play a role in Hobby Lobby?
While I believe the majority made a pitch for applying a pragmatic, anti-theoretical approach ("When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of … people." Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768 (2014)), the following quote strikes me as conveying an underlying aggregate view of corporations:
In holding that Conestoga, as a "secular, for-profit corporation," lacks RFRA protection, the Third Circuit wrote as follows: "General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors." 724 F.3d, at 385 (emphasis added). All of this is true—but quite beside the point. Corporations, "separate and apart from" the human beings who own, run, and are employed by them, cannot do anything at all.
134 S. Ct. at 2768.
September 14, 2014 in Business Associations, Constitutional Law, Corporate Governance, Corporate Personality, Corporations, Current Affairs, Religion, Social Enterprise, Stefan J. Padfield, Unincorporated Entities | Permalink | Comments (2)
Wednesday, September 3, 2014
The March of the Benefit Corporation: Next Up, West Virginia (PART II)
(Note: This is a cross-posted multiple part series from WVU Law Prof. Josh Fershee from the Business Law Prof Blog and Prof. Elaine Waterhouse Wilson from the Nonprofit Law Prof Blog, who combined forces to evaluate benefit corporations from both the nonprofit and the for-profit sides. The previous installment can be found here (NLPB) and here (BLPB).)
What It Is: So now that we've told you (in Part I) what the benefit corporation isn't, we should probably tell you what it is. The West Virginia statute is based on Model Benefit Corporation Legislation, which (according to B Lab's website) was drafted originally by Bill Clark from Drinker, Biddle, & Reath LLP. The statute, a copy of which can be found, not surprisingly, at B Lab's website, "has evolved based on comments from corporate attorneys in the states in which the legislation has been passed or introduced." B Lab specifically states that part of its mission is to pass legislation, such as benefit corporation statutes.
As stated by the drafter's "White Paper, The Need and Rationale for the Benefit Corporation: Why It is the Legal Form that Best Addresses the Needs of Social Entrepreneurs, Investors, and, Ultimately, the Public" (PDF here), the benefit corporation was designed to be "a new type of corporate legal entity." Despite this claim, it's likely that the entity should be looked at as a modified version of traditional corporation rather than at a new entity.
To read the rest of the post, please click below.
September 3, 2014 in Business Associations, Corporate Governance, Corporations, Entrepreneurship, Joshua P. Fershee, LLCs, Social Enterprise | Permalink | Comments (1)
Tuesday, August 26, 2014
The March of the Benefit Corporation: Next Up, West Virginia (Cross Post)
West Virginia is the latest jurisdiction to adopt benefit corporations – the text of our legislation can be found here. As with all benefit corporation legislation, the thrust of West Virginia's statute is to provide a different standard of conduct for the directors of an otherwise for-profit corporation that holds itself out as being formed, at least in part, for a public benefit. (Current and pending state legislation for benefit corporations can be found here.)
As WVU Law has two members of the ProfBlog family in its ranks (Prof. Josh Fershee (on the Business Law Prof Blog) and Prof. Elaine Waterhouse Wilson (on the Nonprofit Law Prof Blog)), we combined forces to evaluate benefit corporations from both the nonprofit and the for-profit sides. For those of you on the Business Prof blog, some of the information to come on the Business Judgment Rule may be old hat; similarly, the tax discussion for those on the Nonprofit Blog will probably not be earth-shaking. Hopefully, this series will address something you didn't know from the other side of the discussion!
Part I: The Benefit Corporation: What It's Not: Before going into the details of West Virginia's legislation (which is similar to statutes in other jurisdictions), however, a little background and clarification is in order for those new to the social enterprise world. A benefit corporation is different than a B Corporation (or B Corp). B Lab, which states that it is a "501(c)(3) nonprofit" on its website, essentially evaluates business entities in order to brand them as "Certified B Corps."
It wants to be the Good Housekeeping seal of approval for social enterprise organizations. In order to be a Certified B Corp, organizations must pass performance and legal requirements that demonstrate that it meets certain standards regarding "social and environmental performance, accountability, and transparency." Thus, a business organized as a benefit corporation could seek certification by B Lab as a B Corp, but a business is not automatically a B Corp because it's a state-sanctioned benefit corporation – nor is it necessary to be a benefit corporation to be certified by B Labs.
In fact, it's not even necessary to be a corporation to be one of the 1000+ Certified B Corps by B Lab. As Haskell Murray has explained,
I have told a number of folks at B Lab that "certified B corporation" is an inappropriate name, given that they certify limited liability companies, among other entity types, but they do not seem bothered by that technicality. I am guessing my fellow blogger Professor Josh Fershee would share my concern. [He was right.]
A benefit corporation is similar to, although different from, the low-profit limited liability company (or L3C), which West Virginia has not yet adopted. (An interesting side note: North Carolina abolished its 2010 L3C law as of January 1, 2014.) The primary difference, of course, is that a benefit corporation is a corporation and an L3C is a limited liability company. As both the benefit corporation and the L3C are generally not going to be tax-exempt for federal income tax purposes, the state law distinction makes a pretty big difference to the IRS. The benefit corporation is presumably going to be taxed as a C Corporation, unless it qualifies and makes the election to be an S Corp (and there's nothing in the legislation that leads us to believe that it couldn't qualify as an S Corp as a matter of law). By contrast, the L3C, by default will be taxed as a partnership, although again we see nothing that would prevent it from checking the box to be treated as a C Corp (and even then making an S election). The choice of entity determination presumably would be made, in part, based upon the planning needs of the individual equity holders and the potential for venture capital or an IPO in the future (both very for-profit type considerations, by the way). The benefit corporation and the L3C also approach the issue of social enterprise in a very different way, which raises serious operational issues – but more on that later.
Finally, let's be clear – a benefit corporation is not a nonprofit corporation. A benefit corporation is organized at least, in some part, to profit to its owners. The "nondistribution constraint" famously identified by Prof. Henry Hansmann (The Role of Nonprofit Enterprise, 89 Yale Law Journal 5 (1980), p. 835, 838 – JSTOR link here) as the hallmark of a nonprofit entity does not apply to the benefit corporation. Rather, the shareholders of a benefit corporation intend to get something out of the entity other than warm and fuzzy do-gooder feelings – and that something usually involves cash.
In the next installments:
Part II – The Benefit Corporation: What It Is.
Part III – So Why Bother? Isn't the Business Judgment Rule Alive and Well?
Part IV – So Why Bother, Redux? Maybe It's a Tax Thing?
Part V - Random Thoughts and Conclusions
August 26, 2014 in Business Associations, Corporations, Entrepreneurship, Joshua P. Fershee, LLCs, Social Enterprise | Permalink | Comments (2) | TrackBack (0)
Sunday, July 27, 2014
An Updated Draft of "Corporate Social Responsibility & Concession Theory" and Some Further Thoughts on Hobby Lobby
I have posted an updated draft of my latest piece, "Corporate Social Responsibility & Concession Theory" (forthcoming __ Wm. & Mary Bus. L. Rev. __) on SSRN (here). Here is the abstract:
This Essay examines three related propositions: (1) Voluntary corporate social responsibility (CSR) fails to effectively advance the agenda of a meaningful segment of CSR proponents; (2) None of the three dominant corporate governance theories – director primacy, shareholder primacy, or team production theory – support mandatory CSR as a normative matter; and, (3) Corporate personality theory, specifically concession theory, can be a meaningful source of leverage in advancing mandatory CSR in the face of opposition from the three primary corporate governance theories. In examining these propositions, this Essay makes the additional claims that Citizens United: (A) supports the proposition that corporate personality theory matters; (B) undermines one of the key supports of the shareholder wealth maximization norm; and (C) highlights the political nature of this debate. Finally, I note that the Supreme Court's recent Hobby Lobby decision does not undermine my CSR claims, contrary to the suggestions of some commentators.
I expect to have at least one more meaningful round of edits, so all comments are welcome and appreciated.
As to the last point of the abstract, let me explain why I don't think Hobby Lobby has meaningfully expanded the ability of corporations to pursue socially responsible actions lacking in any colorable shareholder wealth justification, which, in light of the business judgment rule, is where I believe much of the interesting CSR action is taking place. I'll first briefly go through my understanding of what the Court held in Hobby Lobby, and then see if anything new is added to our understanding of corporations' ability to pursue CSR activities. My analysis proceeds roughly as follows:
1. Are corporations capable of exercising religion?
As a matter of statutory construction, determining whether corporations can exercise religion for purposes of the RFRA requires looking to the Dictionary Act, which includes corporations under the definition of "person" unless the context indicates otherwise. I agree with Justice Ginsburg that the context of exercising religion is one that properly excludes corporations. In addition, due to my view of the corporation as being fundamentally a creature of the state, I have Establishment Clause concerns about allowing the recipients of the state's corporate subsidy to further religious ends via that grant. (I address some of the related unconstitutional conditions arguments here.) But in the end, the Court said corporations can exercise religion, so that's likely the final word till a Justice retires.
2. Is the exercise of religion by corporations ultra vires?
Given that the Court has deemed corporations capable of exercising religion, the next question is whether they have been granted the power to do so by the state legislatures that created them. In other words, is the exercise of religion ultra vires? When Justice Alito says that "the laws … permit for-profit corporations to pursue 'any lawful purpose' or 'act,' including the pursuit of profit in conformity with the owners' religious principles," I believe he is best understood as affirming that religious exercise, like charitable giving, is not ultra vires, nothing more.
3. Can corporations sacrifice shareholder wealth to further religious exercise?
So, corporations have the ability to exercise religion and it is not ultra vires for them to do so. None of that, however, should change the fact that if the religious exercise does not somehow advance shareholder wealth and any shareholder legitimately complains, then a viable waste or fiduciary duty claim has been asserted. Alito seems to recognize this point when he qualifies his conclusion about the viability of abandoning profit-maximization with: "So long as its owners agree …." As Jay Brown put it (here), "this is a rule of unanimity…. it doesn't actually alter the board's legal duties." In other words, I agree with my co-blogger Josh Fershee when he argues (here) that Hobby Lobby should not be read to create some new First Amendment defense for controlling shareholders or directors facing viable claims of waste of corporate assets or duty of loyalty violations.
Assuming all the foregoing is correct, I don't see anything new in Hobby Lobby vis-à-vis a corporation's ability to engage in CSR activities. Obviously, it doesn't take much to satisfy the business judgment rule, but that's not the issue. If there is any new ground here it should arguably create a defense where no rational business purpose is asserted (I don't believe Hobby Lobby has redefined "business" for purposes of the waste doctrine). That's precisely what makes benefit corporations special and necessary – they provide such a defense for corporations pursuing activities with a public benefit but open to the challenge that there is no concomitant shareholder wealth benefit. As Robert T. Esposito & Shawn Pelsinger put it (here), "the principal argument for social enterprise forms rests on the assumption that corporate law and its duty to maximize shareholder wealth could not accommodate for-profit, mission-driven entities."
So, has Hobby Lobby somehow meaningfully shifted the playing field when it comes to CSR? I don't think so.
July 27, 2014 in Business Associations, Constitutional Law, Corporate Governance, Corporations, Current Affairs, Religion, Social Enterprise, Stefan J. Padfield | Permalink | Comments (1)


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A collection of news and information related to Josh Smith published by this site and its partners.
Top Josh Smith Articles
Displaying items 100-110
Horrible shooting night hinders Orlando Magic as they fall to Hawks in Game 4
D-Rose math: Take over the game early = end the game early
Orlando Magic get Justin Harper in trade with Cavs, draft Kentucky's DeAndre Liggins at No. 53
NBA small forward rankings: No. 10 Josh Smith
Playoff-tested Hawks make it look easy in rout of Wizards
Story | Dec 28, 2011 | 8:47 PM— John Wall was dribbling up the court at a frenetic pace, with defenders backpedaling helplessly and teammates gasping to catch up. Wall whirled the ball behind his back to juke Atlanta Hawks guard Jeff Teague and open what appeared to be a clear... -
Orlando Magic fall to Atlanta Hawks in overtime 89-87 | Video
Analysis: Magic might need to augment the Thunder model
Troy Williams' transfer to Oak Hill removes him from comfort zone
Terps Trio: Maryland's sports cuts, Jordan Williams' NBA career and football's first decommitment
Arron Afflalo, Orlando Magic shooting guard
Story | Nov 1, 2012 | 11:55 AMARRON AFFLALO, SHOOTING GUARD -------------------- HT: 6-5 WT: 215 COLLEGE: UCLA -------------------- AGE: Turns 28 on Oct. 15, 2013. -------------------- NBA SEASONS: 2012-13 is his sixth. -------------------- TWITTER HANDLE: @arronafflalo ---------... -
Wizards' Beal finding his rhythm in the game
Story | Jan 5, 2013 | 10:32 PMWizards @Heat Tonight, 6 TV: Comcast SportsNet The first time Washington Wizards rookie Bradley Beal attempted to embarrass an opponent with a thunderous jam, he got a painful lesson on the need to think before dunking. Beal picked the wrong...

subset: commoncrawl


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Written on: 17/06/2005 by hackneyguy (12 reviews written)
Good Points
Excellent Pizzas and salads
Great house red wine
Bad Points
Not always "express"
General Comments
Regulary go either with a couple of friends or office outing. Never had anything but excellent service, hot good food, and great house red wine (otherwise we would not go back - too much choice to waste our time and money). Can not really fault this restuarant except sometimes - when very busy - food is anything but express but hey the result is worth waiting for !
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Pietersen in complete about-turn
Rebel batsman makes himself available for all forms of cricket... assuming England still want him
Sunday 12 August 2012
Kevin Pietersen last night declared his undying love for England in a bid to save his international career. In a dramatic change of heart, he announced that he was once more available for all forms of the game whenever he was wanted.
Pietersen also made it clear in a specially shot video interview that he no longer expected to play a full season in the next round of the Indian Premier League.
After a week of speculation about his future since the end of the Second Test match against South Africa, it was a quite astonishing turn of events. "I'm not going anywhere," said Pietersen.
The nine-minute interview may have led to a swift change in the crucial third match at Lord's which begins on Thursday. Late last night the announcement of the squad was put back from 9.30am today until 2.30pm making it likely that Pietersen had been dropped but will now be restored if his pleas are heard and understood.
Pietersen said in the interview: "I have realised what is important to me, I have realised I can be happy, I have realised how much I love playing for England, I have realised these last three or four days would be a very sad way to go after all the runs and all the happiness I have enjoyed. I would hate to leave playing for England, and hate to leave all the fans who love watching England, this way. I don't think it's right."
If the management agree, it means that Pietersen will not only be named in the squad for the next match but will also be picked for the World Twenty20 in Sri Lanka next month and for future one-day internationals. He retired from all limited-overs cricket earlier this summer because of the heavy workload, and in the wake of the match at Leeds it seemed there were still huge issues.
The cricketing week has been dominated by him – like so many before – because he said in a bizarre post-match press briefing that this week's Test could be his last. While declining to give details it was clear he was unhappy with the team, the management and his workload.
His position seemed to be strengthened by his coruscating century at Leeds which demonstrated how important he is in the England middle order.
But as the week wore on it seemed increasingly that his place had become untenable, not least because he was virtually isolated in the team. But it seems that at the last moment Pietersen recognised his entire career could be vanishing before his eyes.
"I was in an emotional state and I didn't handle it very well at all," he said. "I said things I probably shouldn't have said but I like to clear things up. I have got to the point now where I think playing for England, this is what I want."
Pietersen said that the mood in the dressing room had been sorted out after he and a team-mate had a long chat about various issues.
He knew he had bridges to rebuild after his comments and the accusations that he had sent text messages to South African players which took the rise out of England colleagues.
It is a significant climbdown which he said he had reached after talks with his advisors and family. It seems he could see the end coming and did not like what he saw.
"I love playing cricket for England," said Pietersen. "I love being part of a successful team. It would be sad for me to finish my career the way things have been running, so after sitting down with my family and advisors we have decided it would be a lot better to finish my career on a more positive note rather than the one at the moment."
Pietersen insisted that he was not motivated by money but said that he had a short career and needed to provide for the future of his young family. But he said he was passionate about playing for England.
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Oscars 2015: Birdman beats Boyhood as Eddie Redmayne and Patricia Arquette win big - as it happened
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This is what it's like to be dead, according to a guy who died for a bit
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Request a live demoof the Acquia platform
The ForresterWave™: Web ContentManagement Systems,Q1 2015
DevNet for TeamSite used to be a great community for Interwoven. Sadly once Autonomy acquired them the community was abandoned by the company and became stale. That mirrors the abandonment of their TeamSite roadmap which hasn't seen anything meaningful since 2007.
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Toronto breaks temperature records; Hwy. 401 buckles under the heat
Hwy. 401 buckled under Thursday's record-setting heat.
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Toronto broke heat records on Thursday set more than 60 years ago.
When the mercury hit 34C Thursday afternoon, the city officially broke its June 21 record high of 33.3C set in 1949.
The scorching weather has caused health concerns, traffic delays and triggered the city to issue extreme heat alerts for Wednesday and Thursday.
A stretch of highway was shut down for almost three hours Thursday afternoon after the concrete buckled under the heat.
"Pavement heaving is rare but it may happen during high temperatures," said Astrid Poei from the Ministry of Transportation.
Two collector lanes on Hwy. 401 at Avenue Rd. were closed at 12:30 p.m. after crews found about 30 centimetres of asphalt had buckled upward, Poei said. A contractor was called to grind down the heaved highway. The lanes were reopened at 3:15 p.m., just before rush hour.
But relief from the heat may be on the way. Environment Canada issued a severe thunderstorm watch for Toronto shortly after 5 p.m. Thursday.
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Mickey Sumner, the stunning 29-year-old daughter of Sting and Trudie Styler, graces the pages of the May issue of Vanity Fair, and she's channeling her inner '50s bombshell. And while fame may have been the norm for the starlet growing up, she is ready to earn stardom in her own right.
Take a look and this first look of Survivor season 30.
Academy Award® nominees Ethan Hawke (Best Supporting Actor, Boyhood, 2014) and Ed Harris (Best Actor, Pollock, 2000) lead a powerhouse cast including Milla Jovovich, John Leguizamo, Penn Badgley, Dakota Johnson and Anton Yelchin, with Bill Pullman and Delroy Lindo in a gritty story of a take-no-prisoners war between dirty cops and an outlaw biker gang. When extortion, betrayal, and fiery passions threaten his criminal empire, a drug kingpin (Harris) is driven to desperate measures in this explos
The Fed's eventual rate hike may dislocate markets in the short term, but higher rates are necessary to bring us back to normal, says Morningstar's Bob Johnson.
Meteorologist David Murphy says the next round of wintry precipitation arrives Sunday night.
Leyla Gulen has a look at events, movie reviews and more in this week's Explore Where You Live!
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Relevant offers
Free self-defence workshops are being offered to women in response to recent violent attacks in Nelson.
Kidpower Teenpower Fullpower Trust is offering the free courses to help women keep safe, be alert and aware, de-escalate difficult situations, and also some emergency self defence.
Three free workshops in Nelson are being offered, including one with interpreters in conjunction with Nelson Multicultural Council.
Kidpower NZ programme director Cornelia Baumgartner said it wanted to do something to help women and reclaim some power following two attacks in central Nelson.
Three women have been attacked in Nelson this month.
The first course is at the Women's Centre, Trafalgar St, on March 7.
For more information about the courses or to make a booking phone 543 2669.
- The Nelson Mail
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We launched leggings! Step into a world of individuality.
A lone pelican alert for his next meal. 8 × 10, $50, signed by artist.
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48 hours in Dubai
This tiny emirate combines Arabic tradition with stunning modernity - and offers five-star luxury at affordable prices
The rulers of this tiny emirate have invested vast sums in infrastructure and tourism to ensure that Dubai continues to prosper. Guaranteed sunshine, shopping to rival any city in the world and a growing number of extremely well-priced flight-and-accommodation deals combine to make this the most accessible and tourist-friendly destination in the region. Adventure-seekers can enjoy four-wheel-drive desert "dune bashing" and sand-boarding, while those in need of pampering can indulge in a classic beach holiday, surrounded by five-star (or more) luxury.
The main airline flying from the UK is Emirates (0870 243 2222, www.emirates.com) which offers four departures daily from Heathrow, three daily from Gatwick, two a day from Manchester and one from both Birmingham and Glasgow. Other airlines fly from eathrow: BA (0870 850 9850, www.ba.com) flies three times daily, Royal Brunei (020-7584 0252, www.bruneiair.com) four times a week and Bangladesh Biman (020-7629 0161, www.bimanair.com) twice a week. Connecting flights from many UK airports are offered by a dozen or so airlines. Lowest fares are likely to be around £250 return, while packages including accommodation are available for about £500. It is worth noting that during Ramadan it is illegal to eat or drink in public between sunrise and sunset. During this period, flight and accommodation rates may fall, but so do your entertainment options. For 2004, Ramadan should last from 16 October to 13 November.
The liveliest and most compact part of town is Deira, which occupies the east bank of Dubai Creek; the west bank, known as Bur Dubai, is more spread out. Many of the big new hotels are west of here, along the Gulf coast. A tourist office faces you as you emerge from the customs hall at the new airport terminal. From the airport, a taxi to the centre of Deira costs around Dhs40 (£7), rising to Dhs100 (£17) for a ride to the Jumeirah Beach and Burj Al Arab hotels in the west. Bus 401 runs into Deira for Dhs3 (50p) every half-hour, but buses 4 and 11 are twice as frequent and half the fare. Note that "Deira City Centre" is a shopping mall near the airport, a long way from the real centre. Dubai Transport (00 971 208 0808) can get a car to anywhere in Dubai within 15 minutes. Minimum fare is Dhs3 (50p). Locations are best described by landmark buildings, rather than street address. Bus routes begin at either the Bur Dubai, or Deira Gold Souq bus stations.
Dubai's predominantly flat terrain leaves man-made landmarks vying for the most sublime views of town. The sedate surrounds of Vu's bar at the top of the Emirates Towers hotel (00 971 4330 0000, www.emiratestowershotel.com) west of the central financial district, is perhaps the best choice. The lift from the main lobby offers a vertiginous view through the hotel's glass frontage up to the 42nd floor. The final nine storeys are taken in an internal lift, which opens into the small but swanky bar, with floor-to-ceiling glass that offers a breathtaking vision across the city.
Start on the north side of Baniyas Square and head west along Al Maktoum Hospital Rd. After 100m, turn right into the electronics souq. Follow the L-shaped arcade and you emerge on to Al Sabkha Road. This is one of the liveliest souqs in Dubai, selling everything from clothes to cases to take them home in. Turn left into Sikkat Al Khail Street; after 100m, turn right into an alley marked 25b Street. Suddenly you are in a much older environment, with low, simple homes. Continue north across the next main road. You should spot a tall, gold-windowed building; this is where you are heading. Weave your way through to Gold Land, wander inside to enjoy the glitter. Head out the other side and follow the sign "Footbridge to Fish Market", where seafood, fresh fruit and vegetables are sold. From here, you can walk into the Gold Souq and be hassled by men flogging designer watches.
What Dubai does best is cheap regional cuisine. The Restaurant Beirut (00 971 4398 9822) is on Al Diyafa street in Satwa. It offers good meze, grilled meat and salads from around Dhs20 (£3) per dish.
The Dubai Museum (00 971 4353 1862) is open every day from 8.30am-7.30pm, except on Fridays when it opens at 1.30pm. For Dhs7 (£1) visitors can see displays of the history of Dubai's remarkable development from a small port for the pearl trade to the city of today. The museum is in the Al Fahidi fort, on the roundabout off Al Fahidi Street, on the route of bus number 19.
QD's at the Dubai Creek Golf and Yacht Club (00 971 4295 6000, www.dubaigolf.com) has seating on a breezy deck area that reaches out over the water. From here you can watch the Abras (waterbuses) as they ply their trade up and down the creek and see the inter-emirate seaplane as they take off for trips around the UAE.
Fatafeet (00 971 4397 9222), opposite the British Embassy on Al Seef Street, has outdoor seating that stretches 50 metres along the creek. And this restaurant is hugely popular with local families on weekends. The menu includes well-priced molkhia soup, ful and fish tajen stew. The restaurant is as well known for its sheeshas as its cuisine. For Dhs20 (£3) you get your own water pipe, hot coals and a pile of flavoured tobacco - options include strawberry, apple and cinnamon. Alcohol is not available.
The Holy Trinity (00 971 4337 0247) on Oud Metha Road, holds Anglican services at 8am and 7.30pm every Sunday. Just to the north of this is St Mary's Catholic Church (00 971 4337 0087, www.stmarydubai.com) with Mass every Sunday at 6.30am and 9am. Alternatively, the Jumeirah Mosque on Jumeirah Beach Road is open to non-Muslims at 10am on Thursday and Sunday mornings. Entrance is free and includes a brief tour and talk.
Catch bus 8 from the Gold Souq bus station or the Bur Dubai bus station. For Dhs2.50 (40p) it will take you 15km west of the Creek to the Jumeirah Beach Hotel (00 971 4348 000, www.jumeirahbeachhotel.com). Here they serve a grand breakfast buffet, from waffles to smoked salmon, that will fill you up for the rest of the day. It is available 6.30-10.30am daily, for Dhs82 (£14). Afterwards, you can take the lift to the 25th floor for a spectacular view of the surrounding area.
Safa Park (00 971 4349 2111) fills 60 hectares between Sheikh Zayed and Al Wasl roads at interchange 2 on the Bur Dubai side of the creek. It provides a pleasant respite from the concrete and sand that characterise the rest of the city. Entrance is Dhs3 (50p) and there is a children's play area, tennis court and barbecue pits. Some areas are restricted to women only.
The Creek offers the best opportunity to understand Dubai, both culturally and geographically. Dozens of dhows still bring spices, cloths and other goods from the Gulf. Smaller abras follow routes up and down the creek, lasting half-an-hour for as little as Dhs1 (15p). They embark from the abra dock.
The Satwa public beach, next to the Dubai Marine Beach Resort and Spa (00 971 4346 1111, www.dxbmarine.com) is free to enter and offers grand sunset views to inspire your scribbles home.
There can be few experiences more surreal or exhilarating in the luxuriant opulence of Dubai than chasing a racing camel along a dirt track in a four-wheel drive. The races take place every Friday between November and April from 6am at the Nad Al-Sheba camel track ( www.nadalshebaclub.com).
Dubai's accommodation options are plentiful. The upmarket Jumeirah Beach Hotel (see under "Out to Brunch" on page 20) is best known for its wave-like architecture - and for hosting the English football team en route to the 2002 football World Cup. Doubles cost from Dhs999 (£155) including breakfast. More reasonable are the Capitol Hotel in Satwa (00 971 4346 0111, www.capitol-hotel.com) at Dhs500 (£77) for a double, room only, and the centrally located Four Point Sheraton (00 971 4397 7444, www.fourpoints.com) at Dhs390 (£61) for a double, including breakfast. Many of Dubai's cheaper hotels are situated around the Deira area, on the eastern side of the creek, and tend to cater for the busy Indian tourist trade. The Dubai Benta (00 971 4221 2525) and Paris Hotel (00 971 4221 2181) are just a few doors apart and have small en suite doubles from Dhs160 (£25), room only. This is a good area to head to if you arrive without having booked your accommodation.
Dubai has pitched itself as something of a shopper's paradise in recent years, and has options for all budgets. The gold souq is a long, covered market offering good quality jewellery at excellent prices. If you want to buy, rather than simply gaze, ask for the day's gold price (normally around Dhs50/£8 per gram for 24 carat) and be prepared to haggle.
At the western exit of the souq, there are outlets selling fine Persian rugs and pashminas and silks. Turn left and follow your nose to the spice souq for an impressive array of flavours, scents and colour. Karama is the centre of Dubai's trade in brand names of dubious provenance, with a wide range of accessories bearing such labels as Louis Vuitton and Gucci.
The low-rise collection of shops adjacent to the car park opposite the LuLu store in the Karama shopping centre (00 971 4337 4499) offers the best choices. Deira City Centre (00 971 4295 1010, www.deiracitycentre.com) and Wafi Mall (00 971 4324 4555, www.waficity.com) are Western-style shopping centres with the genuine articles in stock. The airport has some of the best duty free shopping in the world.
Dubai offers eating opportunities for a vast range of tastes and pockets. Wafi Pyramids (00 971 4324 0000, www.waficity.com), in the complex at the Wafi Mall, sells good quality tapas at Seville's, Italian at Medzo and South-East Asian fusion at Thai-Chi. A three-course meal for two with wine at any of the above restaurants should cost you no more than Dhs350 (£54).
For those who are on a budget, Ravi's in Satwa offers perhaps the best option in Dubai. Set in the heart of the South Asian community, it sells filling Punjabi meals for around Dhs15 (£2). The nearby Istanbouli (00 971 4345 0123), meanwhile, has various regional specials available for around Dhs50 (£8).
Most hotels have a bar of some sort, but the Emirates Towers hotel (00 971 4330 0000, www.emiratestowershotel.com) has more than its fair share. Directly opposite each other on the ground floor are wine bars the Agency and Scarlett's, which offer a lively venue with DJs playing upstairs from Wednesday to Saturday. Harry Ghatto's, which is on the first floor, allows any frustrated Sinatras the opportunity to try their karaoke skills.
Those in search of a sweaty disco could do worse than visit Zinc at the Crowne Plaza (00 971 4331 1111, www.dubai.crowneplaza.com). The Cuban bar El Malecon at the Dubai Marine Beach Resort and Spa (00 971 4346 1111, www.dxbmarine.com) has live music at the weekends.
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A new staff report to the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) says Tennesseans need a shared, long-term vision to make the most of the state's assets and meet current and future challenges. Called Charting a Course to Tennessee's Future, the report offers the best thinking of a cross-section of public officials, private sector leaders, and members of academia on how to envision a better future, work toward common goals, and solve shared problems.
The report notes Tennessee's many strengths––because of its location and landscapes, it is a natural transportation hub and tourist destination, and its high quality of life continues to attract new businesses and residents.
At the same time, though, Tennesseans are confronting many challenges. The state's growing population is also aging, increasing the demand for services from health care to transportation. As the population ages, the workforce shrinks by comparison even as workers and the businesses that employ them try to adapt to the changes wrought by globalization.
Tennessean's educational attainment levels and overall health, though improving, lag behind those of residents of other states. Sharp contrasts of wealth and poverty make developing effective statewide policies to deal with these problems a daunting task. And, at a time when government at all levels is strapped for resources, public roads and bridges, and water and sewer lines are deteriorating.
Most people interviewed for Charting a Course to Tennessee's Future were asked, "What do you think Tennessee's biggest challenges will be over the next 20 years?" They responded with a wide range of concerns but with surprising agreement, echoing four broad themes centering on people, infrastructure, natural resources, and governance. More than half of those interviewed said that education is the greatest challenge, citing its effect on the state's ability to provide a skilled workforce and promote economic development. They also expressed concern about the effect of education on Tennessean's health and civic engagement.
The report notes that, like the rest of the United States, Tennessee's population is not only becoming older but also more racially and ethnically diverse. The Tennessee Data Center projects that the state's population will increase by 25% between 2010 and 2040—from 6.3 million to 7.9 million. At the same time, the population aged 85 and older will more than double, from about 100,000 to 203,500, and the percentage who are children will decrease. Tennessee's leaders will need to consider how these changes affect health care, housing, transportation, and education.
The report also notes that Tennesseans face many health problems, from infant mortality to adult-onset diabetes. Sadly, many of the health problems plaguing the state's population are rooted in risky personal choices, such as poor eating habits, lack of exercise, smoking, substance abuse, and refusing to wear seatbelts. Reducing healthcare costs and improving economic productivity will require changing these behaviors.
According to Charting a Course to Tennessee's Future, Tennessee lacks long-term vision to address these and other challenges. While pockets of focused thinking can be found in various agencies and organizations, no single representative group is charged with thinking broadly about the future. Consequently, state agencies, local governments, as well as the private and not-for-profit sectors, sometimes duplicate effort and work at cross-purposes, thus wasting both resources and opportunities.
The report concludes that meeting the challenges of the 21st Century will require continuity of thought and leadership that transcends election terms and intrastate rivalries, as well as greater interaction and coordination within and among all levels of government and the private and nonprofit sectors. Promising initiatives are underway in a handful of other states, and good work is being done here on a local and regional level. Some of these plans are discussed in the report.
Whatever the approach, the report suggests that Tennessee should draw on the expertise of various groups and individuals in order to facilitate meaningful discussion of public problems, exploit the wealth of available data, emphasize outcomes more, and provide incentives to encourage better long-term results.
March 5, 2015
The Transportation Coalition of Tennessee announced on Thursday that 30 organizations, including the Nashville Area Chamber of Commerce, AARP and the Tennessee County Commissioners Association, ... (click for more)
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The Georgia Department of Labor announced on Thursday that the state's seasonally adjusted unemployment rate for January was 6.4 percent, its lowest level since July 2008 when it was 6.3 percent. ... (click for more)
The Transportation Coalition of Tennessee announced on Thursday that 30 organizations, including the Nashville Area Chamber of Commerce, AARP and the Tennessee County Commissioners Association, have joined the coalition in support of its mission to educate the public and work with state legislators to reform Tennessee's transportation fund. The statewide coalition formed ... (click for more)
The law firm of Baker Donelson has once again been named one of Fortune's 100 Best Companies to Work For. In its sixth consecutive year to be included, Baker Donelson is ranked 30th, earning its highest ranking yet and its second consecutive year as the highest ranked law firm on the prestigious list, which recognizes companies that have exceptional workplace cultures. ... (click for more)
Juvenile Court Judge Rob Philyaw on Thursday morning ordered that 17-year-old Cortez Sims be tried as an adult in a College Hill Courts shooting that left one woman dead, a toddler paralyzed, and two others wounded. The order was given after emotional testimony from two of the victims in the Jan. 7 early morning mass shooting at 773 W. Main St. Bianca Horton and Marcell "Baby ... (click for more)
A county school bus driver has been charged with raping a 15-year-old student. Alexander Rodriguez, 34, of Dusty Trail, Ooltewah, was being held on $350,000 bond. The sheriff's office said it got a report at 9:30 p.m. of a missing juvenile, who was last seen boarding a school bus at Sale Creek High School that afternoon. ... (click for more)
There has been quite a bit of hoopla over the proposed new Walmart grocery store in Middle Valley. Since my family has lived in Middle Valley in a home they built by hand way back in 1954 and said house is now housing generations 3, 4 and 5 I feel that I can give my opinion based on nothing more than life experience. When this house was built there was a gravel ... (click for more)
Last April, in the special way that only some older men are lucky enough to possess, the childish imp came out in Father Ray Kelly. A parish priest in Oldcastle, Ireland, he was conducting wedding vows for a handsome couple when the 62-year-old decided to surprise them with a totally-unscripted rendition of Leonard Cohen's beautiful song, "Hallelujah." When he did, there soon ... (click for more)


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Latest Phosphorus Stories
LEBANON, Pa., March 15, 2011 /PRNewswire/ -- Today Lebanon Seaboard Corporation, a leading manufacturer of fertilizers and grass seeds, launches GreenView lawn fertilizers with GreenSmart - an enhanced efficiency fertilizer, in time for spring lawn preparations.
The UN's environmental watchdog warned on Thursday that tons of throw-away plastic and massive runoff from chemical fertilizer are choking the world's oceans.
Recalculating the global use of phosphorous, a fertilizer linchpin of modern agriculture, a team of researchers warns that the world's stocks may soon be in short supply and that overuse in the industrialized world has become a leading cause of the pollution of lakes, rivers and streams.
The problem with phosphorus, a critical element in fertilizers and food, is, as comedian Rodney Dangerfield would say, that it "can't get no respect."
A coupled-cycles framework is essential to balancing human needs with the health of the planet.
RICHMOND, VIRGINIA, Feb. 8 /PRNewswire/ - In developing its new Howard Quad Complex, a $20 million, 458-bed residence hall, Virginia State University (VSU) relied on Imbrium Systems' SorbtiveFILTER technology to treat stormwater runoff from adjacent parking lots.
Scientists and artists collaborate on accompanying works to address a looming environmental issue.
Rapid turnover and remodelling of lipid membranes could help phytoplankton cope with nutrient scarcity in the open ocean.
Latest Phosphorus Reference Libraries
In chemistry, a phosphate is a polyatomic ion or radical consisting of one phosphorus atom and four oxygen. In the ionic form, it carries a -3 formal charge, and is denoted PO43-. In a biochemical setting, a free phosphate ion in solution is called inorganic phosphate, to distinguish it from phosphates bound in the form of ATP, or perhaps in DNA or RNA. Inorganic phosphate is generally denoted Pi. Inorganic phosphate can be formed by the reactions of ATP, or ADP, with the formation of the...
- In medieval musical notation, a sign or neume denoting a shake or trill.


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