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Corporate & Securities Law

Truth on the Market

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Last Entry: April 01, 2011 at 00:51:38

Fair Search’s Google-ITA Video

Posted on November 17, 2010
A link to the video is available here. The video has all of the standard ingredients of a competitor complaint: (1) a slogan (“Stand with Bob”), (2) anti-corporate rhetoric (“Freedom not Google Profit!”), and (3) appeals to provocative statements from a CEO...

Will Leegin Return to the SCOTUS?

Posted on November 17, 2010
See Update Below. The Supreme Court’s ruling in PSKS v. Leegin Creative Leather Products, which reversed Dr. Miles and ended the per se rule for minimum resale price maintenance, remanded the case to the district court to consider claims under the new rule of reason analysis...

Arbitration and preemption

Posted on November 16, 2010
Ok, so here’s the deal. AT&T sells two cellular phones for nothing with a two-year contract term, and then charges $30.22 in sales tax. Customers complain about the sales tax. The contract provides for individual arbitration where the customer resides...

Close corporation remedies and the evolution of the closely held firm

Posted on November 16, 2010
As previously discussed, I attended and presented a paper at an interesting symposium on the famous close corporation case, Wilkes v. Springside. Now the paper is available. Here’s the abstract: Close Corporation Remedies and the Evolution of the Closely Held Firm This paper examines the law of closely held firms from an evolutionary perspective...

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Antitrust and the Midterm Elections

Posted on November 12, 2010
What do the midterm election results mean for antitrust, if anything? According to the American Antitrust Institute, not much: Despite predictions that the new Congress will result in a dramatically changed climate for business, the American Antitrust Institute (AAI) predicts that the election will have relatively little impact on the enforcement of the nation’s antitrust [...

An epitaph for backdating

Posted on November 12, 2010
Peter Lattman reports on the Karatz case as an epitaph for the whole backdating so-called scandal: ?These prosecutions went out with a whimper rather than a bang,? said Christopher J. Clark, a criminal defense lawyer at Dewey LeBoeuf who has done work on backdating cases...

When Cartels Unravel, Judicial Clerkship Market Edition

Posted on November 12, 2010
The National Law Journal reports (HT: Rick Hills): Are the Wild West days of federal clerk hiring back? That’s what some law school administrators and judges fear. They worry that the voluntary system whereby federal judges wait until September of the 3L year to hire clerks is teetering...

Justice for a backdater

Posted on November 11, 2010
Two days ago I discussed the sentencing of KB Home’s Bruce Karatz, where the court was weighing the Probation Office’s recommendation of home detention against the U.S. Attorney’s 6.5 year jail sentence recommendation. I noted the argument that was being made that ?swindlers shouldn?t be treated better than dope dealers,” and responded “Injustice to drug dealers doesn?t justify [...

When governments attack–and delusional law professors find the problem to be corporations

Posted on November 11, 2010
I find it interesting that many on the left, so intent on maintaining their anti-market narratives, distort reality so badly that black is white and up is down–and “government” is “corporations.” I’ve highlighted this before when discussing the misdirected criticisms (and solutions) of self-described privacy advocates who point the finger at Google when really they [...

Citizens United: Friday at Georgia State

Posted on November 10, 2010
I’ll be talking about the Citizens United case Friday at a Georgia State University College of Law symposium. Speakers also include Gene Nichol (UNC), Richard Briffault (Columbia), Joel Gora (Brooklyn), Heather Gerken (Yale), Jamie Raskin (American), Richard Hasen (Loyola), and Michael Boos, (GC Citizens United)...

CPI Symposium featuring Ginsburg and Wright on Antitrust Sanctions

Posted on November 09, 2010
Competition Policy International’s newest issue has been released. The issue is focused on cartel sanctions and features a colloquium on a piece co-authored by Judge Douglas Ginsburg and me on Antitrust Sanctions, with comments from a fantastic lineup of antitrust economists and lawyers: Joseph Harrington (Johns Hopkins), Pieter Kalbfleisch (Netherlands Competition Authority), Mariana Tavares de [...

Jail time for backdaters

Posted on November 09, 2010
I’ve blogged fairly extensively about backdating, including serious questions about whether and when it was wrong at all, and even more serious questions about whether it should be criminalized. Among the specific issues are whether any misrepresentations were material to investors...

Meet the new doctor’s office: the hospital

Posted on November 08, 2010
The WSJ reports that doctors increasingly working for hospitals, which are becoming “consolidated health-care providers,” rather than for themselves. Doctors don’t want to have the burdens of ownership, and hospitals want to lock in customers for their expensive facilities...

Foreclosure lawyers as mortgagees

Posted on November 07, 2010
The NYT reports on foreclosure lawyers who are getting paid contingency fees for mortgage savings, and are themselves getting mortgages from their clients to secure their fees: The Ticktin mortgages resemble the loans that the clients originally got from Countrywide, GMAC and other lenders...

Following the sun, or not

Posted on November 07, 2010
From Nick Rowe (HT MR) (see also): [L]et T be the time everybody else chooses, and let S be the time the sun chooses. So my reaction function is t = R(T,S). Assume that dR/dT>0, dR/dS>0, and dR/dT+dR/dS=1. What this means is that if everybody else gets up one hour later, I will get up (say) [...

Creditor derivative suits in Delaware LLCs

Posted on November 07, 2010
The ever-helpful Francis Pileggi thoroughly discusses an interesting and important recent Delaware opinion by VC Laster, CML V, LLC v. Bax, C.A. No. 5373-VCL (Del.Ch. Nov. 3, 2010) which holds a creditor lacks standing under the Delaware LLC act to sue an insolvent LLC derivatively...

Business Law and the Austrian Theory of the Firm

Posted on November 07, 2010
My Missouri colleague, Peter Klein, of Organizations and Markets fame (and, like Larry, a proud non-voter), has been asked to contribute a book chapter on the Austrian theory of the firm and the law. Peter, who has written extensively on the Austrian theory of the firm and maintains an online bibliography on the subject, is [...

Some Economics of Contractual Restrictions on Political Contributions by Cable Pundits

Posted on November 07, 2010
Jonathan Adler and Orin Kerr chime in over at VC to make the point that MSNBC’s rules against contributions from television personalities is pointless, or perhaps counterproductive. Here’s Adler: I agree with Orin that strict application of rules against political activity by journalists to opinionated commentators and hosts is silly...

Stanford Law School Panel: The Constitution in the Financial Crisis

Posted on November 04, 2010
I am privileged to have the opportunity to travel to Palo Alto next week alongside my senior colleague Prof. Todd Zywicki to participate in a conference on The Constitution in the Financial Crisis organized by the Stanford Constitutional Law Center. I will in large part be discussing my work in this area, including Treasury Inc...

Don’t blame me, I voted for nobody

Posted on November 03, 2010
Illinois has filled the Obama seat with a Republican. Too bad for the Democrats that (1) Blago couldn’t sell the seat; and (2) they didn’t want an election back when they could have elected a Democrat. And now Senator Kirk will be able to vote to continue the Bush tax cut in the lame duck [...

Movies, capitalism and anti-semitism

Posted on November 03, 2010
Jean-Luc Godard’s getting an honorary Oscar which, as the NYT reports, presents a problem. Godard is “an avowed anti-Zionist and advocate for Palestinian rights,” and made a documentary which included alternating images of Golda Meir and Adolf Hitler...

FTC Settlement Finalized

Posted on November 02, 2010
The FTC settlement with Intel has been finalized with one change the Commission’s press release describes as follows: After considering public comments, the FTC modified the proposed order to allow Intel to manufacture and sell a chip that it had in development before the proposed order was negotiated, but that would violate that order because [...

Patent Thickets: Lessons from the Sewing Machine War

Posted on November 02, 2010
My colleague Adam Mossoff’s wonderful paper, A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket, was featured in a WSJ article focused on drawing implications for the smartphone market by studying our experience with the sewing machine patent pool...

Election 2010 and Financial Services Politics

Posted on November 02, 2010
I thought it would be interesting to blog some of the rumors currently circulating about what the election will mean for the makeup of the House Financial Services Committee and the Senate Banking Committee. The makeup of the Senate Banking Committee is, I would argue, the single most important driver shaping financial services legislation...

Indoors and outdoors whistleblowing

Posted on November 01, 2010
Today?s WSJ notes criticism of Dodd-Frank?s bounty provision for whistleblowers on the ground that it undermines the internal reporting provisions of the previous financial law, Sarbanes-Oxley. The WSJ notes that plaintiffs lawyers eager to handle complaints on behalf of whistleblowers are getting the word out, issuing press releases and publishing articles about the new law [...

A new argument against federal proxy access

Posted on November 01, 2010
Dodd-Frank included new federal rules regarding proxy access, which have significant problems. Now a new paper by Becker, Bergstresser and Subramanian provides an additional argument against these rules, Does Shareholder Proxy Access Improve Firm Value? Evidence from the Business Roundtable Challenge...

When Google’s Competitors Attack …

Posted on November 01, 2010
We’ve discussed the all too common tactic in antitrust of rival’s complaining to government agencies to get them to bring antitrust complaints. There is nothing particularly special about this tactic. As I’ve pointed out in the context of allegations by Microsoft and Microsoft-supported rivals of Google, conventional economic reasoning suggests that, without more, complaints from [...

Verret Proposal on Hedge & PE Funds Included in Dodd-Frank

Posted on October 28, 2010
I published a paper back in 2007, Dr. Jones and the Raiders of Lost Capital: Hedge Fund Regulation Part II, an SRO Proposal, in the Del. J. Corp. L which started as my 3L writing project and eventually became the paper I used to go onto the AALS academic market...

The limits of fiduciary duties: tomorrow at B.U.

Posted on October 28, 2010
Tomorrow at Boston University I’ll be joining a distinguished group to discuss the Role of Fiduciary Law and Trust in the 21st Century, inspired by the work of Professor Tamar Frankel. Those who have followed my work will not be surprised that I’m going to focus on the limits of fiduciary duties, and their inappropriate [...

Don’t vote

Posted on October 27, 2010
[In honor of the coming election. The following is reprised from the last election. It still applies.] Here?s the basic instruction (stop after 1:22). Dubner & Levitt giving the sober economics (of course it?s about social norms). Gordon Tullock, in the inimitable style I recognize from being officed down the hall from him back at [...

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