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Monday, May 22, 2017
Shareholder Wealth Maximization at the Firm Level
I ask my Advanced Business Associations students to recognize and process theory and policy and relate them to doctrine at the practical level. This is, as most of you will recognize, a tall order of business for students who have just recently learned what business associations law is and may not yet (at the time they take the course) have applied the law in a practical context outside the classroom. (The course is open to 2L and 3L students who have already taken Business Associations.)
So, when it came time to lionize my friends Lyman Johnson and David Millon at a symposium honoring their work (which, as you may recall, I first heralded on the BLPB a year ago and wrote a bit about back in October), I decided to put my scholarship pen (keyboard) where my teaching mouth is. My goal for the symposium was to write something that linked theory and policy through doctrine to law practice and, at the same time, incorporated Lyman's and David's work. The essay I produced in fulfillment of these objectives was recently released and posted to SSRN. I excerpted from it in my post on Saturday. The full SSRN abstract follows.
In context, corporate law is often credited with creating, hewing to, or reinforcing a shareholder wealth maximization norm. The now infamous opinion in Dodge v. Ford Motor Co. describes the norm in a relatively bald and narrow way: "A business corporation is organized and carried on primarily for the profit of the stockholders." As a matter of theory and policy, commentators from the academy (law and business) and practice (lawyers and judges) have taken various views on this asserted norm—ranging from characterizing the norm as nonexistent or oversimplified to maintaining it as simple fact.
In an effort to broaden the conversation about the shareholder wealth maximization norm in an applied context, this essay describes shareholder wealth maximization under various state laws (in and outside Delaware) as a function of firm-level corporate governance—corporate law statutes, decisional law interpreting and filling gaps in that statutory law, and corporate charter and bylaw provisions—as applicable to both publicly held and privately held corporations in a variety of states. In this overall context, the essay considers the possibility that holders of shares in for-profit corporations may desire to maximize overall utility in their shareholdings of a particular firm, rather than merely the financial wealth arising from those holdings. To accomplish its purpose, the essay first briefly and generally addresses shareholder wealth maximization as a function of applicable statutory and decisional law and as a matter of private ordering (collecting, synthesizing, and characterizing, in each case, points made in the extant literature) before suggesting the broad implications of that analysis for corporate governance and shareholder wealth maximization and concluding. Ultimately, the essay makes a case for a more nuanced look at the shareholder wealth maximization norm. Given differences in doctrine and public policy among the states and variance in that doctrine and public policy among public, private, and statutory close or closely held corporations within individual states, answers to open questions are likely to (and should) depend on individualized facts assessed through the lens of specific statutory and decisional law and applicable public policy.
I fear that this short piece does not do the subject (or Lyman and David's amazing work) justice. But my biggest regret is that the essay went to press without the addition of thanks to two special folks in my author's footnote. I want to call those two colleagues out here.
May 22, 2017 in Business Associations, Corporate Governance, Corporations, Haskell Murray, Joan Heminway, Teaching | Permalink | Comments (2)
Saturday, May 20, 2017
Loyalty to Whom (or What)?
Loyalty has been in the news lately. The POTUS, according to some reports, asked former Federal Bureau of Investigation ("FBI") Director James Comey to pledge his loyalty. Assuming the basic veracity of those reports, was the POTUS referring to loyalty to the country or to him personally? Perhaps both and perhaps, as Peter Beinart avers in The Atlantic, the POTUS and others fail to recognize a distinction between the two. Yet, identifying the object of a duty can be important.
I have observed that the duty of government officials is not well understood in the public realm. Donna Nagy's fine work on this issue in connection with the proposal of the Stop Trading on Congressional Knowledge ("STOCK") Act, later adopted by Congress, outlines a number of ways in which Congressmen and Senators, among others, may owe fiduciary duties to others. If you have not yet been introduced to this scholarship, I highly recommend it. If we believe that government officials are entrusted with information, among other things, in their capacity as public servants, they owe duties to the government and its citizens to use that information in authorized ways for the benefit of that government and those citizens. In fact, Professor Nagy's congressional testimony as part of the hearings on the STOCK Act includes the following in this regard:
Given the Constitution's repeated reference to public offices being "of trust," and Members' oath of office to "faithfully discharge" their duties, I would predict that a court would be highly likely to find that Representatives and Senators owe fiduciary-like duties of trust and confidence to a host of parties who may be regarded as the source of material nonpublic congressional knowledge. Such duties of trust and confidence may be owed to, among others:
- the citizen-investors they serve;
- the United States;
- the general public;
- Congress, as well as the Senate or the House;
- other Members of Congress; and
- federal officials outside of Congress who rely on a Member's loyalty and integrity.
There is precious little in federal statutes, regulations, and case law on the nature--no less the object--of any fiduciary the Director of the FBI may have. The authorizing statute and regulations provide little illumination. Federal court opinions give us little more. See, e.g., Banks v. Francis, No. 2:15-CV-1400, 2015 WL 9694627, at *3 (W.D. Pa. Dec. 18, 2015), report and recommendation adopted, No. CV 15-1400, 2016 WL 110020 (W.D. Pa. Jan. 11, 2016) ("Plaintiff does not identify any specific, mandatory duty that the federal officials — Defendants Hornak, Brennan, and the FBI Director— violated; he merely refers to an overly broad duty to uphold the U.S. Constitution and to see justice done."). Accordingly, any applicable fiduciary duty likely would arise out of agency or other common law. Section 8.01 of the Restatement (Third) of Agency provides "An agent has a fiduciary duty to act loyally for the principal's benefit in all matters connect with the agency relationship."
But who is the principal in any divined agency relationship involving the FBI Director?
May 20, 2017 in Agency, Business Associations, Corporate Governance, Corporations, Current Affairs, Joan Heminway, Securities Regulation | Permalink | Comments (2)
Wednesday, May 17, 2017
Seven Ted Talks that Will Change the Way You Look at Business (According to Entrepreneur Magazine)
I try to watch at least one Ted Talk a day. I learn new substantive topics and I also learn from listening to the speakers break down complex topics in an engaging way--a key skill for the classroom. I don't know that any of the videos in a recent article written for business people really transformed my thinking about business, but I did find some parts interesting and inspiring.
Here they are for your viewing pleasure:
- Myths of Entrepreneurship
- Why Work Doesn't Happen at Work
- 10 Things to Know Before You Pitch to a Venture Capitalist
- What Consumers Want
- What Makes us Feel Good about Our Work
- The Power of Time Off
- Build a Tower, Build a Team
May 17, 2017 in Corporate Personality, Corporations, Entrepreneurship, Marcia Narine Weldon | Permalink | Comments (0)
Thursday, May 11, 2017
Does the Bar Exam Put Business Clients At Risk?
The Legal Skills Prof Blog has posted an article entitled Our Broken Bar Exam by Deborah Jones Merritt. The post discusses Merritt's proposal for a task force on the bar exam. Merritt's article states, among other things:
The bar exam is broken: it tests too much and too little. On the one hand, the exam forces applicants to memorize hundreds of black-letter rules that they will never use in practice. On the other hand, the exam licenses lawyers who don't know how to interview a client, compose an engagement letter, or negotiate with an adversary.
This flawed exam puts clients at risk. It also subjects applicants to an expensive, stressful process that does little to improve their professional competence... The bar examination should test the ability of an applicant to identify legal issues in a statement of facts, such as may be encountered in the practice of law, to engage in a reasoned analysis of the issues, and to arrive at a logical solution by the application of fundamental legal principles, in a manner which demonstrates a thorough understanding of these principles... Why doesn't our definition of minimum competence include cognitive skills that are essential for effective client representation? The answer does not lie in the fact that these skills are difficult to test on a written exam. Research, fact gathering, interviewing, and other lawyering skills are cognitive abilities.
We could test for these skills by directing test-takers to outline a research plan, interview approach, or negotiation strategy based on a mock client file. Test-takers could also identify potential pitfalls, fall back positions, and ethical issues associated with their plan. These questions are no more difficult to draft and grade than classic issue-spotter essay questions. The primary reason we don't test bar candidates on these skills is that law schools don't stress them. Schools teach some professional competencies (like appellate advocacy) quite effectively, but relegate others to a corner of the curriculum. Employers and state supreme courts have urged law schools to teach a fuller range of lawyer competencies, but most schools have resisted…
Here are some of the many ideas that the task force could consider:
- Develop MBE and essay questions that test fundamental principles and legal reasoning, rather than memorization. As proposed above, practicing lawyers could serve as test subjects to validate these questions.
- Allow test-takers to refer to notes, codes, and other sources while taking the bar exam. This practice would more accurately measure professional knowledge.
- Develop tests for more of the competencies that new lawyers perform.
- Replace some (or all) multiple-choice and essay questions with performance-oriented case files like those presented on the Multistate Performance Test (MPT).
- Allow examinees to take portions of the exam at different times, including after the first year of law school.
- Work with law schools to create lawyering classes that would substitute for portions of the bar exam, as the University of New Hampshire has done. Bar examiners could audit these classes for content and rigor.
- Encourage bar associations, law schools, and other organizations to develop postgraduate lawyering institutes to replace some (or all) of the bar exam. Law graduates currently spend more than $100 million annually on bar review courses—in addition to the fees they pay to take the bar. That money could support six to eight week intensive summer programs to teach and assess new graduates' lawyering competence.
I thought about these criticisms and recommendations as I graded my Business Associations exam this week. Every year, I dutifully spend time on GPs, LPs, and LLPs in class and test on them during exam time because the Florida bar tests on these business subjects every year. The bar pays scant attention to LLCs even though that's the fastest growing business entity in my state. Indeed, I have had almost a dozen guest speakers in my startup law skills class, and all of the attorneys indicated that they deal almost exclusively with LLCs and corporations. I worry when I spend time on interviewing and negotiation skills in the doctrinal class because the bar won't test on these topics, but these are precisely the skills my students will need in practice.
Perhaps I worry for nothing. After the administration of every bar exam, I receive notes from students indicating that they felt prepared for both the exam and for life after law school. But I fear that schools do too little to prepare students for either. I highly recommend that you read Merritt's article and if you agree with her, work with your state bar and the NCBE on reform.
May 11, 2017 in Corporations, Current Affairs, Law School, Lawyering, LLCs, Marcia Narine Weldon, Teaching | Permalink | Comments (0)
Tuesday, May 2, 2017
Fake News! Trump's LLCs Are Not Corporations
It's exam-grading time, so my focus is largely on that. I did do my usual peruse of the news, though, and I found a whole host of news outlets discussing President Trump's tax plan, which proposes to lower income tax rates on pass-through entities. As one of the pieces explains:
Pass-through income, for those of you who aren't tax nerds, is business income that's reported on a personal return. It comes from partnerships, limited-liability corporations and other closely held businesses, including Trump's own family real estate operation.
First of all, knowing about pass-through income does not make you a tax nerd. I don't think.
Beyond that, though, limited liability corporations are not a thing. And, limited liability companies (LLCs) are generally chosen for pass-though tax status, but they don't have to be. They can chose to be taxed as C corporations at the federal level, if they wish. Furthermore, partnerships, such as MLPs, and LLCs don't have to be closely held. They can be publicly traded.
Multiple outlets got on the incorrect"limited-liability corporations" bandwagon. Even Barron's! Oh, well.. For now, I guess I will just continue to note that LLCs are still limited liability companies.
Happy grading to those in the same boat, and good thoughts to the students taking our exams. We really do want you to succeed, so please, show us what you know.
May 2, 2017 in Corporations, Joshua P. Fershee, LLCs, Partnership | Permalink | Comments (2)
Wednesday, April 26, 2017
What's next for conflict minerals legislation? My views and the GAO report
Last week, a reporter interviewed me regarding conflict minerals.The reporter specifically asked whether I believed there would be more litigation on conflict minerals and whether the SEC's lack of enforcement would cause companies to stop doing due diligence. I am not sure which, if any, of my remarks will appear in print so I am posting some of my comments below:
Just today, the GAO issued a report on conflict minerals. Dodd-Frank requires an annual report on the effectiveness of the rule "in promoting peace and security in the DRC and adjoining countries." Of note, the report explained that:
After conducting due diligence, an estimated 39 percent of the companies reported in 2016 that they were able to determine that their conflict minerals came from covered countries or from scrap or recycled sources, compared with 23 percent in 2015. Almost all of the companies that reported conducting due diligence in 2016 reported that they could not determine whether the conflict minerals financed or benefited armed groups, as in 2015 and 2014. (emphasis added).
The Trump Administration, some SEC commissioners, and many in Congress have already voiced their concerns about this legislation. I didn't have the benefit of the GAO report during my interview, but it will likely provide another nail in the coffin of the conflict minerals rule.
April 26, 2017 in Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Human Rights, International Law, Legislation, Marcia Narine Weldon, Securities Regulation | Permalink | Comments (1)
Wednesday, April 19, 2017
Is Hashtag Activism Finally Changing Corporate Culture?
Ratings behemoth Bill O'Reilly is out of a job at Fox News "after thorough and careful review of the [sexual harassment] allegations" against him by several women. Fox had settled with almost half a dozen women before these allegations came to light, causing advertisers to leave in droves once the media reported on it. According to one article, social media activists played a major role in the loss of dozens of sponsors. Despite the revelations, or perhaps in a show of support, O'Reilly's ratings actually went up even as advertisers pulled out. Fox terminated O'Reilly-- who had just signed a new contract worth $20 million per year-- the day before its parent company's board was scheduled to meet to discuss the matter. The employment lawyer in me also wonders if the company was trying to preempt any negligent retention liability, but I digress.
An angry public also took to social media to expose United Airlines' after its ill-fated decision to have a passenger forcibly removed from his seat to make room for crew members. However, despite the estimated 3.5 million impressions on Twitter of #BoycottUnited, the airline will not likely suffer financially in the long term because of its near monopoly on some key routes. United's stock price nosedived by $800 million right after the disturbing video surfaced, but has rebounded somewhat with EPS beating estimates. Check out Haskell Murray's recent post here for more perspective on United.
Pepsi and supermodel Kendall Jenner also suffered more embarrassment than financial loss after people around the world erupted on social media over an ad that many believed trivialized the Black Lives Matter movement. Pepsi pulled the controversial ad within 24 hours. Some believe that Pepsi may suffer in sales, but I'm not so sure. Ironically, Pepsi's stock price went up during the scandal and went down after the company apologized.
Pepsi and United both suffered public relations nightmares, but the skeptic in me believes that consumers will ultimately focus on what's most important to them- convenience, quality, price, and in Pepsi's case, taste. I recently attended my 25th law school reunion, and all of my colleagues who used a ride sharing app used Uber nowithstanding its well-publicized leadership scandals and the #deleteuber campaign. Indeed, many social media campaigns actually backfire. The #grabyourwallet boycott of Ivanka Trump's brand raised public awareness but may have actually led to its recent record sales.
Reasonable people can disagree about whether social media campaigns and threats of consumer boycotts actually cause long-standing and permanent changes in corporate culture or policy. There is no doubt, however, that CEOs and PR departments will be working more closely than ever in the age of viral videos and 24-hour worldwide Twitter feeds.
April 19, 2017 in Corporations, CSR, Current Affairs, Employment Law, Ethics, Financial Markets, Marcia Narine Weldon | Permalink | Comments (1)
Monday, April 17, 2017
Visioning the Publicly Held Benefit Corporation
As Haskell earlier announced here at the BLPB, The first U.S. benefit corporation went public back in February--just before publication of my paper from last summer's 8th Annual Berle Symposium (about which I and other BLPB participants contemporaneously wrote here, here, and here). Although I was able to mark the closing of Laureate Education, Inc.'s public offering in last-minute footnotes, my paper for the symposium treats the publicly held benefit corporation as a future likelihood, rather than a reality. Now, the actual experiment has begun. It is time to test the "visioning" in this paper, which I recently posted to SSRN. Here is the abstract.
Benefit corporations have enjoyed legislative and, to a lesser extent, popular success over the past few years. This article anticipates what recently (at the eve of its publication) became a reality: the advent of a publicly held U.S. benefit corporation — a corporation with public equity holders that is organized under a specialized U.S. state statute requiring corporations to serve both shareholder wealth aims and social or environmental objectives. Specifically, the article undertakes to identify and comment on the structure and function of U.S. benefit corporations and the unique litigation risks to which a publicly held U.S. benefit corporation may be subject. In doing so, the article links the importance of a publicly held benefit corporation's public benefit purpose to litigation risk management from several perspectives. In sum, the distinctive features of the benefit corporation form, taken together with key attendant litigation risks for publicly held U.S. benefit corporations (in each case, as identified in this article), confirm and underscore the key role that corporate purpose plays in benefit corporation law.
Ultimately, this article brings together a number of things I wanted to think and write about, all in one paper. While many of the observations and conclusions may seem obvious, I found the exploration helpful to my thinking about benefit corporation law and litigation risk management. Perhaps you will, too . . . .
April 17, 2017 in Anne Tucker, Business Associations, Corporate Governance, Corporations, Current Affairs, Haskell Murray, Joan Heminway, Litigation, Management, Social Enterprise | Permalink | Comments (0)
Tuesday, April 11, 2017
Why Do So Many People Assume States Can Disregard Series LLCs?
The Uniform Law Commission is in the process of considering the Limited Liability Company Protected Series Act (f/k/a Series of Unincorporated Business Entities Act), and the final reading is schedule to take place in July 2017. (Draft is here.) I have been discussing the challenges of Series LLCs with a variety of folks, and it strikes me that a consistent theme about the Series LLC is a concern about asset protection between each LLC in there Series. That is, there is concern that some courts may disregard the separateness of each LLC in the Series and treat the entire Series as a single entity. I share this concern, but it strikes me that it is a rather outlandish concern that a court would do so without some significant level of fraud or other injustice to warrant whatever the state version of veil piercing would mandate.
One source goes so far as to state:
Case law has not been developed on Series LLCs yet, and there is much fear in the professional world that the assets may not be as protected as when the entity is formed. What is clear is that the "corporate formalities" must be carefully followed, such that:
Separate books and records should be maintained for each series;
Creditors need to be made specifically aware of the separate existence of each series; and
The assets of each must be unambiguously identified as belonging to that series.
I don't consider these corporate formalities as at all, given that we're talking about an LLC, but it's true that any Series LLC would be well served to follow the entity formalities we'd expect of any entity seeking to protect limited liability. Perhaps because the Series LLC as an entity is new, there is a need for heightened vigilance, but I am of the mind these kinds of measures are proper for all entities, if one wants to reduce the likelihood of veil piercing, enterprise liability, or other agency/guarantor concerns.
Another source warns of the risks of the Series LLC:
The biggest problem with series LLCs is that many states (including California) don't have series legislation and may choose to ignore the laws of the state where the series was created. That's because you're subject to their rules when doing business in their state. The example of the attitude of the California Franchise Tax Board applies to fees, but liability protection is also an issue. Since series LLCs are so new they've never been tested by courts, even in the states that permit them. That means there's no guarantee that limited liability protection will be extended to each series until every state rules on the subject. It's hard to see how a court would choose to grant this kind of protection inside one entity, and only time will tell if courts will do this. But do you want this type of uncertainty when you are trying to protect your assets?
Again, perhaps valid, but the idea that a state would simply ignore a properly created entity formed in another state is an outrageous proposition, in my mind. If a state sees fit to define an entity, and such an entity is properly formed, that should be sufficient to follow the entity rules. That might be different if a state were to write a law that specifically disallows certain kinds of entity structures. (I'd likely have a problem with that, too, but on the merits of such a law.) And some laws clearly change the analysis, like bankruptcy. But to simply disregard another state's entity structure if the business is properly operating? That's not right.
Anyway, I agree with those who are cautious about the relative limited liability protections of the Series LLC, especially outside of the eight(?) states that have such laws (Delaware, Nevada, Illinois, Iowa, Oklahoma, Tennessee, Texas and Utah). But I do find it disturbing that so many people are comfortable with the idea that courts would (and perhaps should) be so inherently skeptical of a structure chosen by a state legislature that the court would disregard the concept completely. I am all for requiring entities to be clear which entity is to bound (and I think those doing business with those entities should seek guarantees, co-signers, or other assurances where they want them). Courts allowing plaintiffs to expand limited liability beyond a Series entity to include other entities, based only on the use of the Series structure, is different. Like haphazard veil piercing, such decisions run the risk of incentivizing careless or ambiguous drafting and give creditors a chance to pursue a windfall in the form of an un-negotiated guarantee.
As I often remind my students, to argue against the concept of limited liability is a very different thing than arguing that the current law allows one to disregard an entity in a particular circumstance. One asks, "What should be?," while the other asks, "What is?" And to dislike the idea of a Series LLC is very different than suggesting a Series LLC law is invalid. There, the former says what the law should be," while the latter says that what is, is not.
April 11, 2017 in Corporations, Delaware, Joshua P. Fershee, LLCs, Unincorporated Entities | Permalink | Comments (1)
Tuesday, April 4, 2017
Equal Pay Day Applied to M & A
The Washington Post reports:
Back in 2015, Salesforce CEO Marc Benioff admitted something many CEOs wouldn't: The company had found a pay gap between the men and women who worked for the cloud computing giant, and it was spending $3 million to fix it. Now after acquisitions and rampant growth at the company brought in 7,000 new employees in the past year, he's doing it again, announcing Tuesday that the company has spent another $3 million to adjust for a pay gap that affects 11 percent of its more than 25,000 employees.
In an interview with The Washington Post, Benioff said he believed the re-opened gap was largely because of the company's acquisitive streak -- it bought 14 companies in its last fiscal year, the largest in its history. When companies acquire others, Benioff said, "you buy their pay practices, and this pay practice -- of, basically, gender discrimination -- is quite dramatic through our industry and other industries," he said.
If one cares about equal pay, and I think people should (beyond just today), one needs to account for it in the purchase price of another entity. This is a great reminder about the due diligence process. We need to think about all the things that matter to our clients (and ask them what those things are). The cost of implementing those things that matter, in addition to all the traditional things we worry about in an acquisition, should be accounted for if we want to maximize benefit for clients.
April 4, 2017 in Compensation, Corporations, Current Affairs, Joshua P. Fershee | Permalink | Comments (0)
Wednesday, March 22, 2017
What does the EU know that the U.S. Doesn't About the Effectiveness of Conflict Minerals Legislation?
Earlier this month, the EU announced plans to implement its version of conflict minerals legislation, which covers all "conflict-affected and high-risk areas" around the world. Once approved by the Council of the EU, the law will apply to all importers into the EU of minerals or metals containing or consisting of tin, tantalum, tungsten, or gold (with some exceptions). Compliance and reporting will begin in January 2021. Importers must use OECD due diligence standards, report on their progress to suppliers and the public, and use independent third-party auditors. President Trump has not yet issued an executive order on Dodd-Frank §1502, aka conflict minerals, but based on a leaked memo, observers believe that it's just a matter of time before that law is repealed here in the U.S. So why is there a difference in approach?
In response to a request for comments from the SEC, the U.S Chamber of Commerce, which led the legal battle against §1502, claimed, "substantial evidence shows that the conflict minerals rule has exacerbated the humanitarian crisis on the ground in the Democratic Republic of the Congo…The reports public companies are mandated to file also contribute to ―information overload and create further disincentives for businesses to go public or remain public companies. Accordingly, the Chamber strongly supports Congressional repeal of Section 1502 due to its all-advised and fundamentally flawed approach to solving a geopolitical crisis, and the substantial burden it imposes upon public companies and their shareholders."
The Enough Project, which spearheaded the passage of §1502, submitted an eight-page statement to the SEC last month stating, among other things, that they "strongly oppose[] any suspension, weakening, or repeal of the current Conflict Minerals Rule, and urge[] the SEC to increase enforcement of the Rule….The Rule has led to improvements in the rule of law in the mining sectors of Congo, Rwanda, and other Great Lakes countries, contributed to improvements in humanitarian conditions in Congo and a weakening of key insurgent groups, and resulted in tangible benefits for U.S. corporations and their supply chains."
I agree that the Rule has led to increased transparency and efficiency in supply chains (although some would differ), and less armed control of mines. But I'm not sure that the overall human rights conditions have improved as significantly as §1502's advocates (and I) would have liked.
As Amnesty International's 2016/2017 report on DRC explains in graphic detail, "armed groups committed a wide range of abuses including: summary executions; abductions; cruel, inhuman and degrading treatment; rape and other sexual violence; and the looting of civilian property... various ... armed groups (local and community-based militias) were among those responsible for abuses against civilians. The Lord's Resistance Army (LRA) continued to be active and commit abuses in areas bordering South Sudan and the Central African Republic. In… North Kivu, civilians were massacred, usually by machetes, hoes and axes. On the night of 13 August, 46 people were killed … by suspected members of the Allied Democratic Forces (ADF), an armed group from Uganda that maintains bases in eastern DRC…Hundreds of women and girls were subjected to sexual violence in conflict-affected areas. Perpetrators included soldiers and other state agents, as well as combatants of armed groups…Hundreds of children were recruited by armed groups..."
Human Rights Watch's 2017 report isn't any better. According to HRW, "dozens of armed groups remained active in eastern Congo. Many of their commanders have been implicated in war crimes, including ethnic massacres, killing of civilians, rape, forced recruitment of children, and pillage. In … North Kivu, unidentified fighters continued to commit large-scale attacks on civilians, killing more than 150 people in 2016 … At least 680 people have been killed since the beginning of the series of massacres in October 2014. There are credible reports that elements of the Congolese army were involved in the planning and execution of some of these killings. Intercommunal violence increased as fighters … carried out ethnically based attacks on civilians, killing at least 170 people and burning at least 2,200 homes.
Finally, according to a February 17, 2017 statement from the Trump Administration, "the United States is deeply concerned by video footage that appears to show elements of the armed forces of the Democratic Republic of Congo summarily executing civilians, including women and children. Such extrajudicial killing, if confirmed, would constitute gross violations of human rights and threatens to incite widespread violence and instability in an already fragile country. We call upon the Government of the Democratic Republic of Congo to launch an immediate and thorough investigation, in collaboration with international organizations responsible for monitoring human rights, to identify those who perpetrated such heinous abuses, and to hold accountable any individual proven to have been involved."
Most Americans have no idea of the atrocities occurring in DRC or other conflict zones around the world. I have spent the past few years researching business and human rights, particularly in conflict zones in Latin America and Africa. I filed an amicus brief in 2013 and have written and blogged about the failure of disclosure regimes a dozen times because I don't believe that name and shame laws stop the murder, rape, conscription of child soldiers, and the degradation of innocent people. I applaud the EU and all of the NGOs that have attempted to solve this intractable problem. But it doesn't seem that enough has changed since my visit to DRC in 2011 where I personally saw 5 massacre victims in the road on the way to visit a mine, and met with rape survivors, village chiefs, doctors, members of the clergy and others who pleaded for help from the U.S. Unfortunately, I don't think this legislation has worked. Ironically, the U.S. and EU legislation go too far and not far enough. I hope that if the U.S. and EU focus on a more holistic, well-reasoned geopolitical solution with NGOS, stakeholders, and business.
March 22, 2017 in Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Human Rights, Marcia Narine Weldon, Securities Regulation | Permalink | Comments (0)
Tuesday, March 21, 2017
Abolishing Veil Piercing Is for Legislatures, Not Courts
I write often about how courts often incorrectly treat LLCs as corporations. Last week, I reported on a case about a court that misstated, in my view, the state of the law regarding LLCs and veil piercing. When I do so, I often get comments about how veil piercing should go away. Prof. Bainbridge replies similarly here.
I am on record as being open to the elimination of veil piercing (I am actually, at least in theory, working on an article tentatively called Abolishing Veil Piercing Without Abolishing Equity), and I am especially open to the idea of abolishing veil piercing with regard to contract-based claims. (Texas largely does this by requiring "actual fraud" for cases arising out of contract. For a great explanation of Texas law on the subject, please see Elizabeth Miller's detailed description here.)
Several courts over the years, most notably the Wyoming court in Flahive, have extended the concept of veil piercing to LLCs, even where a statute did not explicitly provide the concept of veil piercing. Although I think these courts got it wrong, now that concept of veil piercing is well established for corporations and LLCs in virtually all (if not all) U.S. jurisdictions, I think any rollback must properly be done by statute.
In the past, I have been critical of courts like the one in Flahive, because I agree with Prof. Bainbridge and others who argue that veil piercing, when not expressly stated, may well have not been intended. Minnesota, for example, has at least made the concept clear. Minnesota LLC law provides:
Subdivision 1. Limited liability rule.
Subject to subdivision 2, a member, governor, manager, or other agent of a limited liability company is not, merely on account of this status, personally liable for the acts, debts, liabilities, or obligations of the limited liability company.
Subd. 2. Piercing the veil.
The case law that states the conditions and circumstances under which the corporate veil of a corporation may be pierced under Minnesota law also applies to limited liability companies. . . . .
Like most states, Minnesota courts are willing to pierce the corporate veil where (1) an entity ignores corporate formalities and serves as the alter ego of a shareholder and (2) enforcing the liability limitations of the corporate form leads to injustice or is fundamentally unfair. I have often used this example of how a state should, if they want to have LLC veil piercing, proceed. That is, although I would not advocate for doing so, if a state is going to have veil piercing of LLCs, it should be expressly stated. The statute may be flawed in concept, but that's a call for the legislature.
The Minnesota statute is well crafted to achieve its apparent goals, in that it makes clear that one can, in fact, be "personally liable for the acts, debts, liabilities, or obligations of the limited liability company" merely on account of being a member of an LLC. That is, the general rule is that members are not liable for the LLC's debts, but where an LLC veil is pierced, all members become personally liable for the debts, regardless of the their actions. In Minnesota, this includes "corporate formalities" as a factor for corporate veil piercing and thus it applies to LLCs, even though LLCs have few, if any, statutory formalities (and many states disclaim formalities as an obligation to maintain limited liability for an LLC).
This seems wrong to me, especially the part about making those who did not participate in the bad behavior potentially liable and adding a corporate-formalities requirement to an entity that is not supposed to have them. As Prof. Bainbridge argues in Abolishing Veil Piercing, "Abolishing veil piercing would refocus judicial analysis on the appropriate question-did the defendant-shareholder do anything for which he or she should be held directly liable." I agree.
Still, because veil-piercing of entities is well-settled law, I don't think judges have latitude to eliminate it. Judges must focus on proper limitations and clarity of the law that is still subject to interpretation (or plainly inconsistent with the law), where possible. At this point, abolishing veil piercing must be done by statute. Maybe some bold legislators will heed the call.
March 21, 2017 in Corporate Personality, Corporations, Joshua P. Fershee, LLCs | Permalink | Comments (0)
Monday, March 20, 2017
What I Did On My Spring Break
No. This is not a travelogue. Rather, it's a brief additional bit of background on a case that business associations law professors tend to enjoy teaching (or at least this one does).
In Ringling Bros. Inc. v. Ringling, 29 Del. Ch. 610 (Del. Ch. 1947), the Delaware Chancery Court addresses the validity of a voting agreement between two Ringling family members, Edith Conway Ringling (the plaintiff) and Aubrey B. Ringling Haley (the defendant). The fact statement in the court's opinion notes that John Ringling North is the third shareholder of the Ringling Brothers corporation.
I spent two days in Sarasota Florida at the end of Spring Break last week. While there, I spent a few hours at The Ringling Circus Museum. It was fascinating for many reasons. But today I will focus on just one. I noted this summary in one of the exhibits, that seems to directly relate to the Ringling case:
Interestingly, 1938 is the year in which the plaintiff and defendant in the Ringling case created their original voting trust (having earlier entered into a joint action agreement in 1934). The agreement at issue was entered into in 1941. Could it be that, perhaps, the two women entered into this arrangement as a reaction to John Ringling North's desire to acquire--or successful acquisition of--management control of the firm? I want to do some more digging here, if I can. But I admit that the related history raised some new questions in my mind. John Ringling North was all but forgotten in my memory and teaching of the case, until the other day . . . . The case takes on new interest in my mind (more broadly as a close corporation case) because of my museum visit and discovery.
[Postscript - March 21, 2017: Since posting this, I have been blessed by wonderful, helpful email messages offering general support, PowerPoint slides (thanks, Frank Snyder), a video link (thanks, Frances Fendler), and referrals to/copies of Mark Ramseyer's article on the Ringling case, Ringling Bros.-Barnum & Bailey Combined Shows v. Ringling: Bad Appointments and Empty-Core Cycling at the Circus, which offers all the detail I could want (thanks, again, Frances, and thanks, Jim Hayes) to help fill in the gaps--while still creating a bit of mystery . . . . I am a much better informed instructor as a result of all this! Many thanks to all who wrote.]
March 20, 2017 in Business Associations, Corporate Governance, Corporations, Joan Heminway, Shareholders, Teaching | Permalink | Comments (0)
Friday, March 17, 2017
Q&A with the Managing Editor of the Peer-Reviewed Atlantic Law Journal
Professor Keith Diener of Stockton University School of Business, who is a former law school classmate of mine and the current managing editor of the Atlantic Law Journal, agreed to answer some questions related to the journal.
The flagship journals for the Academy of Legal Studies in Business ("ALSB") are the American Business Law Journal (ABLJ) and the Journal of Legal Studies Education (JLSE, primarily pedagogy articles and teaching cases). In addition to these two journals, each regional association is generally responsibly for at least one journal with the Atlantic Law Journal coming out of the Mid-Atlantic region.
As Keith explains below, these journals are open to a wide range of scholars, including professors from law schools. I would encourage legal scholars who have not published in a traditional peer reviewed journal to consider submitting to one of the ALSB journals. I have published in both the ABLJ and the JLSE, and I have had good experiences in both cases.
Please provide us a brief overview of the Atlantic Law Journal and the MAALSB.
The Mid-Atlantic Academy for Legal Studies in Business (MAALSB) is an association of teachers and scholars primarily in the fields of business law, legal environment, and law-related courses outside of professional law schools with members from the Mid-Atlantic states, including Delaware, Maryland, Pennsylvania, Virginia & West Virginia. Residence in those states is not required for membership in the MAALSB, and many of our members come from different regions and states. In addition to sponsoring the Atlantic Law Journal, MAALSB holds an annual conference for our region usually in April of each year, where our members meet, present papers, and exchange ideas. The MAALSB is one of the regional branches of the national Academy of Legal Studies in Business (ALSB).
For over a decade, the Atlantic Law Journal was tied to the MAALSB annual conference. Presentation at the conference provided an opportunity for publication in the journal. A few years ago, the journal restructured and began accepting articles on a rolling basis, year-round. We welcome submissions from law professors, whether in law schools or not, but generally do not accept student-authored articles. We are soon entering our twentieth year as a viable legal publication.
What is your current role with the journal and what roles do other faculty members play?
The Atlantic Law Journal has a dedicated team of editors who, depending on classification, perform different roles within the journal.
Our Editor-and-Chief, Professor Cynthia Gentile, leads the journal, manages its website, publishes the annual volume, manages its listings in Cabell's and Washington and Lee's Journal Rankings, and coordinates indexing and archiving on Westlaw. As Editor-and-Chief, Professor Gentile is primarily responsible for journal outreach, growth, and sustainability.
I currently serve the journal as the Managing Editor. In this capacity, I receive all submissions to the journal, sanitize them for double, blind peer review, send the sanitized articles to our staff editors for review, receive their recommendation and feedback forms, and notify authors of publication decisions.
We currently have two Articles Editors, Professors Laura Dove and Evan Peterson, who work with the accepted authors to prepare their manuscripts for publication, by editing the articles and making suggestions for improvement even after acceptance.
We also have a team of roughly 30-40 professors from around the country who serve the journal as Staff Editors. Without our Staff Editors, our journal would not function. They are responsible for peer-reviewing the submitted articles, and making recommendations for (i) acceptance, (ii) conditional acceptance, (iii) revision and resubmission, or (iv) rejection of the submitted articles.
What details can you provide about the submission process, including contact information, desired word-count range, typical article topics, etc.?
We generally publish annually, usually in July or August. September through January are typically the best months to submit if you are seeking to be published in the following summer. Spring semester submissions are also welcome, but are often more competitive. Although there are no per se word ranges, article lengths typically span 7,500 to 15,000 words. We publish a wide range of articles, but to be published in the Atlantic Law Journal, the article must have a nexus to business law theory or pedagogy, broadly construed.
The acceptance rate remains at or below 25%. This means that for every article we accept, at least three are initially turned down (although some are given the opportunity to resubmit).
You can submit by emailing the Managing Editor a complete copy and a blind copy, with Bluebook formatted footnotes, in accordance with the instructions and contact information found on our website.
What details can you provide about the review process and editing process?
Upon submission, you will receive a response, typically within a few days, confirming receipt of your article. From there, soon after, the article is typically sent to Staff Editors for peer review. To the extent possible, we match article content with the expertise of our Staff Editors to ensure a fair and professional review. We also find that the feedback provided by Staff Editors to authors is most helpful when they have expertise related to the article. Once appropriate and available Staff Editors are identified, they then review the article and return their recommendations to the Managing Editor. The Managing Editor then notifies the author of the publication decision. If an article is accepted, then the author is introduced to one of our Articles Editors for finalization of the essay.
We strive to inform authors of publication decisions within eight (8) weeks of submission.
In your opinion, what are the advantages and disadvantages of publishing with the Atlantic Law Journal?
In my opinion, there are many advantages to publishing with the Atlantic Law Journal.
The first advantage is that (unlike many law reviews today), if you submit to the Atlantic Law Journal, someone will respond to you when you submit it. Yet, not only will you receive a response, but you will also have your article read and reviewed by professional academics in the field of business law (who are also lawyers). We do not utilize law students in our publication process, and all our editors are professional academics.
Second, the Atlantic Law Journal is listed in Cabell's, ranked by Washington and Lee, and available on Westlaw. This means that articles appear not only in our volumes linked on our website, but are also indexed, searchable, and fully archived on Westlaw. This produces the potential for a broad impact and increased author visibility.
Third, while there appears to be a trend towards some law reviews accepting shorter articles, the Atlantic Law Journal already accepts shorter pieces (circa 7500 words). Let's face it, sometimes there's just not 50,000 words to say about certain topics. If you have a shorter piece that might not be long enough for a law review, the Atlantic Law Journal may be interested in it.
Fourth, unlike many law reviews, the Atlantic Law Journal is interested in articles, not only as to theoretical and scholastic topics, but also topics related to business law pedagogy. If you've tried something new in the classroom, had good results, and desire to share it with others, the Atlantic Law Journal may be interested. Our primary readership includes business law professors, who are always looking for new and innovative pedagogical techniques. We also welcome scholarly and theoretical articles, and try to include a mix of both scholarly and pedagogical articles in each edition.
Finally, all articles are double, blind peer reviewed. If your article is not accepted, we endeavor to provide high quality feedback that will allow you to improve your article as you continue your work on it. Our blind review is a genuine process. As Managing Editor of the journal, I am committed to ensuring the journal's integrity by sanitizing all submissions (removing all meta-data) prior to sending the articles for review.
For more on the MAALSB and the Atlantic Law Journal, see our website.
- Dr. Keith William Diener
March 17, 2017 in Business Associations, Business School, Corporations, Haskell Murray, Research/Scholarhip, Writing | Permalink | Comments (1)
Tuesday, March 14, 2017
Perpetuating the Hot Mess of LLC Veil Piercing Law
A new case, out just yesterday from the Southern District of Ohio, makes a mess of LLC veil piercing law. It appears that the legal basis put forth by the court in granting a motion to dismiss a veil piercing claim was probably right, but the statement of veil piercing law was not quite there.
The case is ACKISON SURVEYING, LLC, Plaintiff, v. FOCUS FIBER SOLUTIONS, LLC, et al., Defendants., No. 2:15-CV-2044, 2017 WL 958620, at *1 (S.D. Ohio Mar. 13, 2017). Here are the parties: the defendant is FTE Networks, Inc. (FTE), which filed a motion to dismiss claiming a failure to state a claim. FTE is the parent company of another defendant, Focus Fiber Solutions, LLC (Focus). The plaintiff, Ackison Surveying, LLC (Ackison) filed a number of claims against Focus, added an alter ego/veil piercing claim against FTE. Thus, Ackison is, among other things, seeking to pierce the veil of an LLC (Focus). Focus appears to be a Pennsylvania LLC, based on a search here.
Pennsylvania law provides the liability cannot be imposed on a member of an LLC for failing to observe formalities. The law states:
The failure of a limited liability partnership, limited partnership, limited liability limited partnership, electing partnership or limited liability company to observe formalities relating to the exercise of its powers or management of its activities and affairs is not a ground for imposing liability on a partner, member or manager of the entity for a debt, obligation or other liability of the entity.
(1) grossly inadequate capitalization,(2) failure to observe corporate formalities,(3) insolvency of the debtor corporation at the time the debt is incurred,(4) [the parent] holding [itself] out as personally liable for certain corporate obligations,(5) diversion of funds or other property of the company property [ ],(6) absence of corporate records, and (7) the fact that the corporation was a mere facade for the operations of the [parent company].
March 14, 2017 in Corporations, Joshua P. Fershee, Litigation, LLCs | Permalink | Comments (5)
Monday, March 13, 2017
More on the U.S. Private and Public Equity Markets
As you may know, I have had an abiding curiosity about the line between the U.S private and public securities markets in large part because of my work on crowdfunding. Almost three years ago, I published a post on the topic here at the BLPB. I posted on the referenced paper here. That paper recently was republished in a slightly updated form by The Texas Journal of Business Law, the official publication of the Business Law Section of the State Bar of Texas (available here).
As a result of this work, my interest was (perhaps unsurprisingly) piqued by a this paper by Amy and Bert Westbrook. Enticingly titled "Unicorns, Guardians, and the Concentration of the U.S. Equity Markets," the article documents concentrations in both private and public equity markets in the United States and makes a number of interesting observations. I was especially intrigued by the article's identification of a potential resulting peril of this market concentration: the aggregation of both corporate management and ownership in the hands of the few.
[W]ealth has concentrated and private equity markets have emerged that serve as alternatives to the public equity market. At the same time, the public equity market has become dominated by highly concentrated shareholding, in the form of institutional investors, especially index funds, and the occasional founder. Both developments have resulted in concentrations of capital that mirror the concentration of management that concerned Berle and Means. For Berle and Means, the concern was concentrated management and dispersed ownership. The concern now is that both management and ownership are concentrated in the hands of very few people.
Very interesting . . . . And this is only one of the conclusions that the authors draw. As a foundation for its assertions, the article documents the concentration of ownership in both private and public markets, tying current participation in both markets back to salient economic and social data and trends. The full abstract from SSRN is set forth below, for your convenience.
Developments in the private and public equity markets are changing the role equity investment plays in the United States, and therefore what "stock market" means as a matter of political economy. During the 20th century, securities and other laws did much to tame the "animal spirits" of industrial capitalism, epitomized by the "Robber Barons." In order to raise large sums, businesses offered stock to the public, thereby subjecting themselves to the securities laws. Compliance required not only disclosure, transparency, but more subtly, that the firms themselves undergo a process of Weberian rationalization. A relatively broad middle class was comfortable investing in such corporations, and the governance of firms and thus much of the economy was understood to be answerable to this class. Citizens understood such arrangements as theirs, part of "the American way."
In recent years, in conjunction with rising inequality in the United States, there has been a decisive shift from broad-based ownership of firms to much more concentrated forms of ownership in both private and public markets. Private equity markets are concentrated by legal definition: relatively few people are qualified to participate directly. Yet private equity has become the preferred method of capital formation, epitomized by "unicorns," firms valued at over $1 billion without being publicly traded. Public equity markets are dominated by funds with trillions of dollars under management, and small staffs, who are in effect "guardians" for the portfolios that ensure long-term stability for individuals and institutions, notably through retirement and endowments. The governance of the U.S. economy has to a surprising degree become a matter of grace: the nation now relies on a small elite to make good decisions on its behalf about the allocation of capital, the governance of firms, and the preservation of portfolio value. This consolidation of ownership rivals that of the late 19th century, and may challenge the law to address the equity markets in new ways.
I think you'll enjoy this one. At the very least, it's a great read for those of you who, like me, are interested in analyses of the U.S securities markets. But perhaps more broadly, with contentious changes in federal business regulation in the offing under the current administration in Washington, this work should contribute meaningfully to the debate.
March 13, 2017 in Corporations, Current Affairs, Joan Heminway, Private Equity, Securities Regulation | Permalink | Comments (0)
Friday, March 10, 2017
The FairShares Model
On of the many interesting things discussed during the social enterprise law workshop at Notre Dame Law School was the "FairShares Model." Nina Boeger (University of Bristol-UK) brought the model to the group's attention, and the model was new news to me.
The FairShares Model was "created during a research programme on democratising charities, co-operatives and social enterprises involving academics at Sheffield Hallam University and Manchester Metropolitan University in the UK."
The FairShares Model cites the "Social Enterprise Europe Ltd" when noting that social enterprises "aim to generate sustainable sources of income, but measure their success through:
Specifying their purpose(s) and evaluating the impact(s) of their trading activities;
Conducting ethical reviews of their product/service choices and production/consumption practices;
- Promoting socialized and democratic ownership, governance and management."
To address theses aims, the FairShares Model offers social audits and suggests the issuing some combination of (1) founder shares, (2) labour shares, (3) investor shares, (4) user shares.
While I agree that significant corporate governance changes should be considered, at first glance this model seems a bit unwieldy if all four types of shares are issued. Still, I am interested in learning more.
March 10, 2017 in Business Associations, Corporate Governance, Corporations, CSR, Entrepreneurship, Haskell Murray, Social Enterprise | Permalink | Comments (0)
Wednesday, March 8, 2017
Best Binge-worthy Movies on Business
Every year, I offer my students the option of writing an extra credit paper on what Hollywood gets wrong about business. They can also apply what they've learned to a popular movie, television show, or book (the Godfather, Game of Thrones, and Sex and the City have provided some of the more interesting analogies). Often I provide a list of TV shows or movies that they can consider. Today, I'm asking my co-bloggers and our readers for their binge-worthy movie or TV choices. Some movie lists for business students are here, here, here, and here but I welcome your suggestions. For those of you who aren't in my class and just want a break from the news, these lists may come in handy.
March 8, 2017 in Corporations, Current Affairs, Film, Marcia Narine Weldon | Permalink | Comments (6)
Monday, March 6, 2017
A Market For Corporate Disclosure? !!!!
Most of us editors here at the Business Law Prof Blog obsess and blog in one way or another about disclosure issues. Marcia has written passionately about conflict minerals disclosure (see a recent post here) and the SEC's efforts to revamp--or at least reconsider--Regulation S-K (including here). Anne also wrote about the Regulation S-K revision efforts here. Ann wrote about mining industry disclosures here and focuses ongoing attention on securities litigation issues in the disclosure realm (including, e.g. here). Josh wrote about the intersection of corporate governance and disclosure regulation in this post. I have written about "disclosure creep" here and most of my research and writing has a disclosure bent to it, one way or another . . . .
Last summer, at the National Business Law Scholars Conference at The University of Chicago Law School, I listened with some fascination to the presentation of an early-stage project by Todd Henderson (whose work always makes me think--and this was no exception). His thesis¹ was a deceptively simple one: that the age-old disclosure debate could best be solved by creating a contextual market for disclosure (rather than by, e.g., continuing its the current system of "federal government mandates and issuer pays" or leaving market participants to their own devices as to what to disclose and punishing malfeasance merely through fraud and misstatement liability or state sanctions). The paper resulting from that presentation, coauthored by Todd and Kevin Haeberle from the University of South Carolina School of Law (but moving to William & Mary Law School in July), has recently been released on SSRN. The title of the piece is Making a Market for Corporate Disclosure, and here's the abstract:
One of the core problems that law seeks to address relates to the sub-optimal production and sharing of information. The problem manifests itself throughout the law — from the basic contracts, torts, and constitutional law settings through that of food and drug, national security, and intellectual property law. Debates as to how to best ameliorate these problems are often contentious, with those on one end of the political spectrum preferring strong government intervention and those on the other calling for market forces to be left alone to work.
When it comes to the generation and release of the information with the most value for the economy (public-company information), those in favor of the command-and-control approach have long had their way. Exhibit A comes in the form of the mandatory-disclosure regime around which so much of corporate and securities law centers. But this approach merely leaves those who value corporate information with the government's best guess as to what they want. A number of fixes have been offered, ranging from more of the same (adding to the 100-plus-page list of what firms must disclose based on the latest Washington fad), to the radical (dump the federal regime and its fraud and insider-trading overlays altogether in favor of state-level regulation). This Article, however, offers an innovative approach that falls in middle of the traditional spectrum: Make relatively small changes to the law to allow a market for tiered access to disclosures, thereby allowing firm supply and information-consumer demand to interact in a way that would motivate better disclosure. Thus, we propose a market for corporate disclosure — and explains its appeal.
I have skimmed the article and am looking forward to reading it in full over my spring break in a week's time. I write here to encourage you to make time in your day/week/month to read it too--and to consider both the critiques of federally mandated disclosure and the article's response to those critiques. I am confident that the thinking it will make me do (again) will sharpen my teaching and scholarship; it might just do the same for you . . . .
¹ After publishing this post, I learned that the paper actually was drafted by Kevin well before Todd presented it last summer. My apologies to Kevin for leaving him out of this part of the story! :>)
March 6, 2017 in Corporations, Joan Heminway, Research/Scholarhip, Securities Regulation | Permalink | Comments (0)
Tuesday, February 28, 2017
A Few Irritating Things
I don't know if it's the time of year or if I am just a little off, but I am generally grumpy today. So, I am going to vent a bit.
First, a regular irritation that is no shock to regular readers is the "limited liability corporation." I probably should have stopped the Westlaw alert for that terms, which comes through nearly every single day with multiple cases and news items. A new case from the U.S. District Court in Kansas, Pipeline Prods., Inc. v. Horsepower Entm't, No. CV 15-4890-KHV, 2017 WL 698504, at *1 (D. Kan. Feb. 22, 2017), is typical. The court states:
Pipeline Productions, Inc. is a Kansas corporation with its principal place of business in Lawrence, Kansas. Backwood Enterprises, LLC is an Arkansas limited liability corporation with its principal place of business in Lawrence, Kansas. . . .The Madison Companies, LLC is a Delaware limited liability company with its principal place of business in Greenwood Village, Colorado. Horsepower Entertainment, a Delaware limited liability company, is a wholly-owned subsidiary of Madison with its principal place of business in Greenwood Village, Colorado.
Irritation 1: Arkansas does not have an entity called a "limited liability corporation." Arkansas, as is typical, has a corporation entity and a limited liability company entity. They are different. The fact that the court gets the entity right for the two Delaware LLCs suggests to me that the filings from Backwood Enterprises, LLC, is the likely source of the language. Still, courts should be getting this right. (It won't shock me if my obsession with this is irritating more than one reader. C'est la vie.)
Irritation 2: The case also references a "wholly-owned subsidiary." This is a common reference, but "wholly owned" does not need a hyphen when used a compound adjective. This source cites the one I tend to follow, from my public relations days:
When a compound modifier–two or more words that express a single concept–precedes a noun, use hyphens to link all the words in the compound except the adverb very and all adverbs that end in -ly. —AP Stylebook, 2013 edition. Boldface added.
Spot on. The site also provides a good hint:
*Warning: Not every word that ends in -ly is an adverb. Watch out for nouns like family and supply, and adjectives like only. For example, "family-oriented websites"; supply-side economics"; "only-begotten son."
Since Americans (in particular) love threes, I will follow the Rule of 3s, and add one more.
Irritation 3: The word "articulate." Yeah, this is kind of random, but I am done with that word. I cannot come up with a time when another word won't serve as a good substitute, and the loaded way in which the term has evolved means it should be skipped. See, e.g., here. This article provides more good background and quotes Condoleezza Rice's former communications counselor, Anna Perez:
The word perfectly conveys, to quote George Bush, the soft bigotry of low expectations. It literally comes down to that. When people say it, what they are really saying is that someone is articulate ... for a black person.
Before anyone wants to get mad at me for being too "PC," calm down. I am not saying you can't say it. I am saying you will irritate me if you do. And if you say it to or about an African-American person, you probably are showing the bias Ms. Perez described. And, yeah, I have heard it said about and to African-Americans in my presence, and it's usually pretty clear the bias is there. It's an irritation to me, and it's demeaning, even though I think it is, from time to time, well intentioned, if ignorant. Time to move forward. What was once "progressive thinking" is not anymore. Try to catch up if you're really trying to be nice.
I know, everyone has things that irritate them. It's good to vent now and again. No person attacks or freak outs. Just a good, old-fashioned vent. Happy Mardi Gras.
February 28, 2017 in Corporations, Current Affairs, Joshua P. Fershee, LLCs | Permalink | Comments (4)


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We offer makeup services for all your upcoming special events.
Call Now to Book Your Special Day with Marjorie.
As we mentioned some weeks ago, Marjorie has officially became part of our SanOlvi Beauty team. We are very happy to have her on board.
Do you have a Special Event coming up? Wedding? Sweet 16? Bridal Shower? Photo or Video Shoot? Or just a Special Night Out on the Town? Well, Marjorie is available for all of your makeup needs. She also offers makeup lessons for those of you who are trying to find the right look. Book yours today by emailing Marjorie at firstname.lastname@example.com or by calling 773-930-4751.
Below you can find some great examples of her work.
We also offer private hair and makeup sessions upon request.
CLICK HERE to view the rest of the pictures in our Makeup Gallery
Welcome the newest member of the SanOlvi Beauty team, Marjorie Madero. Marjorie will be in charge of all events booking for SanOlvi Beauty. Have a special day coming up and need our services? Marjorie will be the go to person and the face of SanOlvi Beauty at all of our events.
Remember we do Weddings, Sweet 16s, Quinceañeras, Styling for Video/Photo Shoots, and much more.
Contact Marjorie at email@example.com
Marjorie is a professional makeup artist and is available for appointments for makeup lessons and more.
At SanOlvi Beauty we believe that a business does not strive without its community, and I always told myself the day I owned my own business I will give back however possible.
This month we start our Monthly Makeovers at SanOlvi Beauty – This is an idea we have had for over a year now, but have finally had the time to put into action.
We understand that physical beauty is only a small detail in life, but we also understand the empowerment one feels when they feel beautiful. Beauty empowers the spirit and the self esteem of a person. We are here to help someone out who may need that boost in that particular part of life.
Read the flyer for all the details. Pass it along to your friends. Tell us who should get a makeover and why. We will be picking a winner each month. So keep the emails coming, we want to hear from you. Thank you and have a blessed day.
We are proud to announce that the President/CEO of SanOlvi Beauty, SanOlvi herself, has been spotlighted over at Tricoci University of Beauty Culture's website. She was chosen as their 1st story on TUBC alumni who have been successful after graduating from Tricoci University.
We are truly honored to have her be the 1st story of this new series of interviews by such a highly regarded institution.
Take some time out of your day and read the full interview by CLICKING HERE.
– SanOlvi Beauty (PR)
Again, we wanted to thank everyone who purchased our Living Social deal on Wednesday and Thursday. We Sold Out of our deal in less than 2 days, which is amazing to us.
We want to let you all know that we will work hard to accommodate each and every one of you. Please help us out by calling in to schedule your appointment ahead of time. Also, remember you have from now until April 3rd, 2012 to redeem your Living Social voucher.
We value our clientele and we want to give you the best possible experience.
We appreciate you working with our schedule as we are trying to work with yours.
Click on the Business Info + Hours tab at the top of the page to get our phone number, address, and hours.
Thank you. – SanOlvi
WE DID IT! We Sold Out of our Featured Deal on LivingSocial! We Sold 800 Deals in under 2 days. Amazing!
Thank you to everyone who supported us during out feature on LivingSocial. We even got announced on V103 FM in Chicago on Wednesday Morning without even knowing we would be. We truly are grateful and appreciate every one of you who purchased the deal. We look forward to accommodating and servicing our New and Loyal Clientele.
Thanks again for all the support. – SanOlvi


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AATSP 2016 Poster Contest Theme
Español: Abre puertas con el español
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Each year the AATSP sponsors the Poster Contest that is open to K-12 Spanish and Portuguese students whose teachers are current AATSP members. The posters are a demonstration of student understanding of the importance and uses for learning new languages and an excellent project for Hispanic Heritage Month and Foreign Language Celebrations!
Judging is conducted by the Poster Contest Committee and the Board of Directors. A special thank you to all who helped make the 2016 contest a splendid success.
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Posted on 26 March 2004
- 12:00
Obviously with the new manager all the players will want to prove that they are right men for the job.
The last game I played in there we lost 1-0 on Boxing Day a couple of seasons ago, but we also lost 4-0 and we have to do better.
We have to make sure nothing like that happens again. That game was on television and I think I watched that in hospital after my thigh injury. Obviously I had other things on my mind but it wasn't great to watch.
15 May 2017
All the stats, facts and figures you need to know about our competitive matches during our 118-year stay at White Hart Lane.
2 May 2017
Don't forget, there's another chance to come to White Hart Lane to take in a game this coming Thursday (May 4) before we move out of our iconic home stadium at the end of the season.
23 March 2017
Spurs Ladies will play at White Hart Lane for the first time on Wednesday, April 19.
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All photography copyright Getty Images (unless otherwise stated)


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Was there some grumbling about Tuesday's bird-parts photos? Here's an Ovenbird (Seiurus aurocapilla) to tide you over until you get outside.And a Chestnut-sided Warbler (Setophaga pensylvanica).One of my favorite warblers. A Veery (Catharus fuscescen), our least marked thrush.Wood Thrush (Hylocichla mustelina), our most-marked thrush.Scarlet Tanager (Piranga olivacea), le rouge et le noir.
Posts Tagged 'Green-Wood'
Whole BirdsPublished May 12, 2017 Fieldnotes 1 Comment
Tags: birding, birds, Green-Wood, NYBG
Barely Glimpsed BirdsPublished May 9, 2017 Fieldnotes 1 Comment
Tags: birding, birds, Great Swamp, Green-Wood, Marine Park
This is a natural history blog, not a photographic one. I try to use my best pictures for illustrative purposes, but my PowerShot SX50 definitely isn't a SLR with a long lens. Sometimes I get a fine shot. Often not. You'll notice few in-flight images here, for instance. And sometimes I get shots for reference's sake only: what was that bird, or flower, or insect? So here are some recent less than great photo opportunities that still have, I think, some educational value.A Piliated Woodpecker (Hylatomus pileatus) in Great Swamp NWR. You can hear them — oh, can you hear them, their maniacal laugh resounding through the woods — and you can sometimes see them. Big as they are, though, they're generally elusive.Saltmarsh Sparrow (Ammodramus caudacutus) at Marine Park Saltmarsh Nature Center, another elusive species that usually lurks amid the reeds and grasses. So not one to pose too long. There were two; perhaps they're setting up a nest? There are nesting records for Jamaica Bay and Staten Island. The Greater Yellowlegs (Tringa melanoleuca) stand out, but how those little ones in front of them? Click on image to make it larger. The peeps sure blend in, rather better than at the beach. Semipalmated Sandpipers (Calidris pusilla), I think: their legs are barely visible, but don't look yellow (which could turn them into Least Sandpipers).A bathing Blue-winged Warbler (Vermivora cyanoptera). The two wing bars, not visible here, and the line through the eye of the yellow face and head are the "tells" here. A male American Redstart (Setophaga ruticilla) is unmistakable even without a head.You'd think an orange and black bird would be easy to see, but male Baltimore Orioles (Icterus galbula) are often best revealed by their song.
Raptor WednesdayPublished April 19, 2017 Fieldnotes Leave a Comment
Tags: birding, birds, Brooklyn, Green-Wood, Marine Park
The all-Merlin (Falco columbarius) edition.
In Green-Wood. This falcon, seen here on two different perches, was one of two by the Crescent Water at the same time. The other flew into a nearby tree — but the photography possibilities were not worth posting home about. The second bird took off, followed by the first. I wasn't sure if this territorial or courtship behavior.Another day, another place, this time Marine Park. An hour before sunset, so that House Sparrow looks like dinner.
Sibley gives the following stats for average Merlin size:
length: 10″; wingspan: 24″; weight: 6.5 oz (109g); females always bigger than males.
For House Sparrow:
length: 6.25″; wingspan 9.5″; weight: 0.98 oz (28g).
Raptor WednesdayPublished March 22, 2017 Fieldnotes Leave a Comment
Tags: birding, birds, Brooklyn, Green-Wood
Red-tailed Hawks are the Old Faithful of NYC raptors. I see them regularly from my windows, passing parallel to the moraine or swirling over the flatlands below. This was one of two in the same tree in Green-Wood recently. Mating and nesting season is a "go"!Here's a Prospect Park pair, moments after mating. Note the difference in belly plumage: individual Red-tails have a lot of unique characteristics (all birds do, but it's much easier to see on the larger specimens). Female left, male right. He's also a little smaller. The birds had been perched about a 100 yards apart, looking in opposite directions. The female flew to a tree near the male and started to make the noises that must mean, "hey sailor!" because he flew right over. Bird copulation is quite brief for most species, a few seconds long; they may mate multiple times during the day, though, and dozens if not hundreds of times during before brooding.
So, to recap:
The President of the United States and members of his administration and current and former associates are under investigation by the FBI for collusion with Russia.
The Russians are sitting on the information hacked from the RNC.
There is no basis for the President's wild claims that President Obama put a "tapp" on his phones. And, true-to-form, Trump is double-downing in support of his reckless lie, red-meat to his sociopathic fans.
Meanwhile, the GOP's horrendous Stripping of Health Care from Americans Act has actually made a couple dozen Republican reps nervous. Go get 'em.
Scolopax minorPublished March 17, 2017 Fieldnotes Leave a Comment
Tags: birding, birds, Green-Wood
The first of three American Woodcocks seen on the Brooklyn Bird Club's Woodcock walk in Green-Wood last weekend.Same bird from the other side. A dozen people walk by stealthily…. The sun came out. But it's at dusk that these non-shore shorebirds do their magic. The males begin to vocalize repeatedly with a peent/beent call. Then they fly into the air, to descend with a twittering made by their wings. The ladies are impressed by these displays. The whole song and dance can barely be seen in the gloaming, but it can be heard, and we shall listen Sunday night (rain-checked from the original schedule).This one was just about two feet away from the one above, but harder to see. The leaf had just blown onto the bird's bill before I snapped this. Since then, we had a storm, and in the last couple of days dozens of these birds have been spotted around the city. They've no place to hide. Just goes to show you how many of them are here, and how well hidden they usually are. But, exposed to predators like the city's plague of feral cats, and food hard to get to in the frozen ground (they use those long bills to probe the soil), this unveiling can't be good for them.
Great Blue & the Democracy of the HeartPublished March 10, 2017 Fieldnotes 1 Comment
Tags: birding, birds, Brooklyn, Green-Wood
Lo and behold, on a recent day I scanned the little islet in the midst of the Sylvan Water and found this Great Blue Heron. Had the bird stuck around all winter? (We've have very few days with frozen water). I did see a GBH sail across the Sunset Park plain back in January, heading for the harbor or beyond.
This is particularly compelling: the notion of "cognitive elite" and the political uses of calling your enemies stupid. I have definitely committed that sin.
PodPublished March 6, 2017 Fieldnotes 3 Comments
Tags: Green-Wood, trees
Variation on a Kentucky Coffeetree (Gymnocladus dioicus) pod.
"Listen to them! The children of the night. What music they make." Ok, Bela Lugosi's Count D is talking about the Transylvanian wolves, but Brooklyn has some interesting early spring night musicians, too. Join me on a Brooklyn Brainery expedition to the edges of the borough to listen for spring peepers, choral frogs, and American Woodcock doing their mating flights on the 18th. It will be cold and dark and we will be depending on our ears more than our our eyes, for a change.


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Explore Disney Cruise Wedding, Grand Pianos and more!
Explore related topics
Ryan playing the piano for me...but I won't be allowed to sit on it.
Disney Cruise Line Wedding
The most amazing Disney proposal ever!! 1. I love how at first she was all concerned about missing Harry Potter:) 2. this is without a doubt my dream engagement process. 3. I have high expectations for my engagement now:)
Wedding Photography - Love this idea!
ee82e57c9d1c1353f975c843ace9b558.jpg 553×2,071 pixels
The officiant wore a GoPro during the wedding
A must-have photo! Lol, so us!
This is a great idea for a brides photo.
Awesome wedding photo
For my large family?


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#1 Sep 13, 2010
Yes, I always vote.
#2 Sep 13, 2010
Vote the bums out!
#3 Sep 13, 2010
And vote new ones in.. lol.
The political landscape if filled with self serving career politicians that represent whom pays them the most.. and that is not the voting public.
#4 Sep 13, 2010
Here in taylor county we just have Clowns running. Clark and Price both have 5 peopel running for sheriff. We need that here why doesnt hoffmann run on again?
United States
#5 Sep 13, 2010
funniest thing i heard today. I was hoping paul would run, but he is chicken.
#6 Sep 13, 2010
he isnt a chicken I bet he woudl of solved the unsolved murders and wouldn't allow the cops to have sex in the squad like Daniels has done
#7 Sep 13, 2010
Support Bruce Daniels
We want four more years of Unsolved murders
Let Deputy Amos get away with more did the women give him back his cuffs when they partied with Jailer NP?
opps former Jailer I mean. After all of this Sheriff Daniels states I have you best interest Boys. Daniels for Sheriff what a joke
#8 Sep 13, 2010
no seriously, why didn't Paul run?
#9 Sep 13, 2010
You guys think you have trouble up there! Down here even the Circuit Court Judges joke about all the Nehls' working for Dodge County! Their very own criminal records from years and years ago on to recently show a pattern of violence against their own families, the public in general and on and on.
#10 Sep 14, 2010
If I can find out where.
#11 Sep 14, 2010
If I can find out where. Anyone know what ward I'm in?
#12 Sep 14, 2010
if their lips are movin they're lyin.
#14 Sep 14, 2010
If a candidate spends more time and money complaining about his opponent than he does promising to work with and for We The People, then he's not the rep. for me. I'd rather see a "None of the above" line on the ballots than put greedy, self-centered politicians in those seats again.
#15 Sep 14, 2010
Sue from Monroe said it so right! The politicians are so "me, me, me" well what about "us, us, us?" Those that pay their wages and whom they're suppose to serve and protect! You go Sue!
Dodge County, vote Nehls OUT!
United States
#16 Sep 14, 2010
The "Outsiders" are learning real fast all about the problems with all the crime in Forest county, wisconsin. We need to stick together and look out for each others property because people and law enforcement, if any in these small towns are NOT looking out for you.
The residents should be ashamed of what is going on in your town!
Since: Feb 09
South Milwaukee
#17 Sep 14, 2010
Like I tell the callers that ask "Are you going to vote....."....None of your beeswax.
#18 Sep 14, 2010
He was busy doing other things. He knows he can do a better job then Daniels but wonder if dealing with all the games and liars in the court house woudl be worth it. Paul is a fair guy who is open minded he was right on a lot of things and solved crimes not make up charges on people like the current adminstration does to make money for the county. Did you know Daniels went to out west for training at tax payers expense to see if he can bring federal inmates into Taylor County jail. why do we need more crimminals here. Call him to support and ask him he was asked to run.
#19 Sep 14, 2010
smiley Contcat him maybe you can push for a tea party write in
wouldnt it be great if he got in Kelz would crap his pants and paul woudl send him and several others packing
#20 Sep 14, 2010
Well, if he was really committed to change he would have had the courage to run.
Of course, he did the crap kicked out of him in the 2006 election by Daniels.
I suppose he wasn't in the mood for another humiliating defeat or the expense.
#21 Sep 14, 2010
Sam you most supprt Daniels and his problems
at least paul had the guts to try more then you can do huh
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MP3 of the Day: "Burnin' Hell" by Rotagilla
Season For Leavin' (self-released)
You'd think it was 1970 again, for Chrissakes, what with the way the guys of Rotagilla let out their inner Led Zep. Granted, there's no hint of a Robert Plant or Jimmy Page lurking among this lot. However, in recycling the old school power trio format and letting loose their ragged riffing and rambunctious exhortations, these guys expel a lot of volume. And what they may lack in technical prowess, they more than make up for in sheer exuberance.
Recorded live, the band's new limited edition full-length album, Season For Leavin', offers practically nada in the way of refinement or constraints, sacrificing those elements for ample doses of purely raucous revelry. But no matter; restraint seems like it was never really part of their constitution to begin with.
Inevitably, Rotagilla offers the impression they've been listening to a lot of boozy, bluesy Brit bands, and vintage stuff, at that. And it wouldn't be surprising to learn they'd also nicked their folks' Sex Pistols and Guns N Roses albums in an attempt to frame some references.
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For that matter, when was the last time anyone proffered an honest-to-God drum solo? The instrumental "Captain Ishmael" may not start a trend, but it does provide a delirious attempt at indulgence. Likewise, the raw boogie of "Gangrene Blues," the unabashed barroom blitz of "Fleetwood," the pedal to the metal onslaught of "No Grove, No Love" and the sturdy twelve bar blues of "Lonely Man" all serve to emphasize Rotagilla's penchant for baring the basics.
Here's a free download of the band's song "Burnin' Hell."
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Getting Rid of a Foul Smell in Your Refrigerator
Having a bad odor in your fridge is a problem that is more common than we think. However, getting rid of the smell is somewhat more complicated than simply taking out the food that is causing it, and it can sometimes be so strong that it actually changes the taste of other food you keep in your refrigerator. The good news is that there are simple and solutions to ridding your refrigerator of bad smells for good, which are provided in today's article by our appliance repair company in Franklin Park, Illinois.
Give it a good clean
Over time, it is possible to notice a smell building up in your fridge, even if there is nothing rotting in there. It is therefore recommended to perform a thorough cleaning of your refrigerator every once in a while. Make sure that you clean the shelves on both sides and that you take out the drawers to clean up the space behind them. Make sure you wipe any cleaning product you use so that your fruits and vegetables don't absorb them once you put them back in there.
Baking soda
Baking soda is pretty much the standard when it comes to getting rid of bad smells. Keeping an open box of baking soda in your refrigerator will prevent foul odors from developing in your appliance
Cut up an orange or a lemon and simply put the slices in your refrigerator. Close it for a few hours and you will notice that a nice citrus smell will develop in there, masking any other odor that could have crept up in your refrigerator.
Another natural ingredient that is excellent for masking odors is vinegar. You have nothing to do but to pour a small amount in a recipient and leave it in your fridge until the nasty smell is gone.
If after trying these different methods, your refrigerator still smells really bad, you may be dealing with a more serious issue. In such a case, it is better to seek assistance from an appliance technician. If you need refrigerator service in Chicago, be sure to get in touch with Platinum Cares today.