Author: Lawrence Cunningham

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Required versus Probable Reform and the Madoff Distraction

dollar sign.jpgThe press, politicians and reformers are devoting extraordinary attention to a Ponzi scheme whose only peculiarities are scale and duration. Compared to ongoing global financial devastation, this is trivial. Yet this attention may lead politicians to distract focus from their role in the deeper problems that matter far more.

Recriminations against the Securities and Exchange Commission arise from allegations it has made (complaint here) that Mr. Madoff operated a large-scale Ponzi scheme involving tens of billions of dollars over perhaps decades and bilking scores of sophisticated parties. SEC critics include prominent securities law professors Jim Cox (Duke) (SEC may “have a hell of a lot to answer for”) and Joel Seligman (Rochester) (“a debacle for the SEC”).

Critics express concern that the SEC may have failed to investigate investor tips (see Wall Street Journal story here); failed to regulate sufficiently Madoff’s investment advisory services or fund vehicles; or failed to enforce existing regulations. Calls are for both investigation and greater regulation, many pinning hope on the incoming Obama administration to institute such searching and effect requisite change.

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Oversight Panel Report Grim, Tough, Inviting

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Americans are being formally invited to participate in discussingthe ongoing federal program to stabilize the country’s economy. The invitation is by the five-member panel Congress created to oversee the program’s implementation. The panel also issued its first report yesterday, signed by the panel’s Chair, Harvard Law Professor Elizabeth Warren, plus AFL-CIO Associate General Counsel Damon Silvers and New York Superintendent of Banking, Richard Neiman. (One panel member, Rep. Jeb Hensarling of Texas, voted against issuing the report and the fifth panel seat is vacant.) The report contemplates asking ten tough questions about the program that give a sense of its tenor:

1. What is Treasury’s Strategy?

2. Is the Strategy Working to Stabilize Markets?

3. Is the Strategy Helping to Reduce Foreclosures?

4. What Have Financial Institutions Done With the Taxpayers’ Money Received So Far?

5. Is the Public Receiving a Fair Deal?

6. What is Treasury Doing to Help the American Family?

7. Is Treasury Imposing Reforms on Financial Institutions that are taking Taxpayer Money?

8. How is Treasury Deciding Which Institutions Receive the Money?

9. What is the Scope of Treasury’s Statutory Authority?

10. Is Treasury Looking Ahead?

The report’s further tenor can be gleaned from its Introduction, which is very sobering indeed, and excerpted below (with footnotes omitted and emphasis added).

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Sloppy, Inconsistent Federal Corporate Governance

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Lawmaking is a sloppy spectacle, perhaps especially amid crisis like now when Congress offers conditional financial assistance to save private banks and car makers. It is possible that once the entire process is complete a coherent law will result. So far, Congressional actions are not encouraging—and may worry even those scholars and policy analysts who may generally prefer moving from state-by-state corporate law production to a federal corporate law regime.

First, there appears to be no principled basis to distinguish the federal corporate governance conditions proposed to be imposed on the auto industry under the House bill (HR 7231) voted up yesterday and the comparatively loose conditions imposed on the financial industry under the economic stabilization act passed two months ago.

Principal examples are limitations on dividends (to be imposed on car makers but not on banks), limitations on corporate jets (car makers can’t own or lease them but banks can) and limitations on executive compensation (stringent for Detroit, weak for financiers).

Second, the draft House bill has some internal inconsistencies and provisions that are redundant because they already exist in federal law. These concern standards for executive compensation and corporate governance to be specified by a Presidential designee. 12(b)(2).

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“Yet, he ought to pay his rent.”

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“Yet, he ought to pay his rent,” is a famous legal conclusion from the grand case of Paradine v. Jane evoked by Mark Edwards recently in this blog, a wonderful early specimen in the law denying excuse from contractual obligation due to supervening events. Later chestnuts (like Taylor v. Caldwell to Krell v. Henry) relax the rigid stance denying impossibility, impracticability or frustration of purpose as excuses from contractual obligation, but only if the risks arising from a supervening event (fire, flood, riot, disease and the like) are not allocated, expressly or implicitly, by contract.

The common law’s navigation of these doctrines prompt parties to include in contracts express provisions excusing performance of obligations upon the occurrence or non-occurrence of stated supervening events. Parties can include any sorts of events they wish. A common example of the kinds of clauses that result, often generically described as force majeure clauses, follows:

“If either party to this contract shall be delayed or prevented from the performance of any obligation through no fault of their own by reason of labor disputes, inability to procure materials, failure of utility service, restrictive governmental laws or regulations, riots, insurrection, war, adverse weather, Acts of God, or other similar causes beyond the control of such party, the performance of such obligation shall be excused for the period of the delay.”

Pending in New York court is a claim that a similar sort of clause enables the real estate developer, Donald Trump, and companies he controls, to delay repayment of obligations for borrowed money to Deutche Bank, and a syndicate of other banks. The borrowers want a declaratory judgment that prevailing real estate market conditions are within such a clause and beyond the borrowers’ control. Accordingly, they want to lawfully delay repayment of a $40 million installment due last month under a $640 million construction loan. The substantive argument is that sales of condo and hotel units the construction loan supported have failed to materialize as anticipated (only $204 million have closed and $353 million are under contract).

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Footnotes in Delaware Judicial Opinions

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Casebook editors, including Professor Stephen Bainbridge of UCLA, complain about the prodigious length of recent Delaware corporate law judicial opinions, especially those written by its Chancery Court. As I edit a round of recent cases for my spring course and new edition of my casebook, I add a related complaint: the proliferation of footnote use in Delaware court opinions. This practice tends both to lengthen opinions plus complicate practical tasks facing teachers and editors.

As a practical matter, a style has developed in Delaware over the past decade of inserting case citations and other authorities in sequentially numbered footnotes rather than in textual discussion. This practice mirrors the style traditionally used in scholarly writing and is a sharp departure from the standard practice in judicial opinions and litigation briefs.

For a casebook editor, this is annoying because it requires tracking relevant footnotes separately and then preparing selected footnotes or, for ease of student reading, relocating the relevant case citations from footnotes into bracketed citations within the text.

As to length, it is no longer uncommon to read Delaware corporate law opinions with more than 50 footnotes and a fair number bloat more than 100 footnotes. Many contain meditations on matters remote from the issues the court is required to address. They sometimes present long string cites, increasingly to include scholarly articles and treatises.

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Countrywide Sub Prime Suit May Proceed

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Many securities lawsuits arising out of the sub-prime mortgage lending debacle are not showing much promise of success. But an important exception may be that concerning Countrywide. Kevin LaCroix provides analysis of the 112-opinion issued last week denying most defendants’ motions to dismiss the Countrywide securities class action complaint.

The opinion contains several points of special interest because they may seem to go against the weight of authority. This may simply reflect the procedural stage of the case. But they may also suggest that the scale and unusual nature of the sub-prime market may invite judicial reconsideration of some traditional securities law doctrines.

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Fundraising Creativity

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When times are tough, it seems especially important to remember those who rely on others for their well-being. For organizations that support those people, this means attention to fund-raising. In prosperous times, funding often seems relatively easy to generate, compared to recessionary times, when otherwise generous people opt to tighten belts and make charitable giving a first line casualty. In such periods, fund-raisers need to be creative. One way that happens is through visual imagery that compels remembering the less fortunate.

Among the inspired efforts in this season’s fund-raising efforts is the accompanying poster from a campaign for a can drive, a popular fund-raising method. This campaign, called Yes We Can, is for a middle school in New York City, Rodeph Sholom School. It taps into the prevailing thirst for optimism in the nation, reflected in President-elect Obama’s election campaign, while playfully evoking Warhol’s pop artistry. It also conveys a civics lesson to the students, parents and other community members being targeted. It was created by a teacher at the school, math and digital art whiz, Jonathan Cuba.

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Baseball Player Salaries

Many people now clamor to cap corporate executive compensation, especially for those running companies seeking government financial support. Wall Street firms are laying off personnel and withholding bonuses to those lucky enough to have not been fired yet this year. Corporations are increasingly cutting their work forces, pushing tens of thousands of people out of jobs, and putting unemployment claims at a 26-year high.

Many leading universities have declared hiring freezes and budgetary constraints likely to result in caps on raises for people they cannot terminate. A recession is underway and there are essentially no positive economic signals giving reason to be optimistic about any recovery.

Yet, meanwhile, baseball players in negotiations over their contracts appear unfazed by these economic realities–despite teams and agents signaling tough economic times ahead. Even so, team owners are paying up.

The New York Yankees are offering a 6-year $140 million to pitcher C. C. Sabathia, which he has not yet accepted. The Yankees are also offering $10 million a year to veteran pitcher Andy Pettitte, who is reportedly insisting on the same $16 million salary the team paid him last year.

Two days ago, the Boston Red Sox signed a 6-year contract with the third-year player, Dustin Pedroia, set to cost the team $40.5 million. The San Francisco Giants have agreed to pay $2.75 million next year to a relief pitcher, Bobby Howry.

Where will team owners get the resources to pay baseball players annual salaries of $1 to $10 million in the next several years as the economy and workforce reel in financial straits? If such soaring salary commitments persist, look for serious financial difficulties to beset major franchises. When the salaries come down, that may be an indicator that the recession is nearing an end.

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Odds on Corporate Pardons

Talk in Washington at the end of any President’s term turns to the unbridled power that US presidents have to pardon people for having committed crimes. This year, chatter debates whether President Bush will give a pass to convicted former corporate executives, despite a national mood unlikely sympathetic to redemption for financial deception.

Executives seeking pardons reportedly include criminals from the technology-sector financial scandals that erupted during President Bush’s first term. The most infamous applicant is Bernie Ebbers, now serving a 25-year federal prison term for crimes he committed at the fraud-infected telecom giant, WorldCom. That company imploded in 2002 amid $10 billion worth of deceptions that were a primary catalyst of the Sarbanes-Oxley Act of 2002, the law designed to reduce the likelihood of similar large scale corporate accounting fraud.

Other corporate criminals seeking pardons from President Bush come from yet earlier periods. They include the disgraced publishing magnate Conrad Black, and the 1980s-90s junk-bond king-pin, Michael Milken.

The Presidential pardon power can strike the ordinary civics student as bizarre. No doubt, President-elect Obama’s putative nominee for Attorney General is having second thoughts for supporting President Clinton’s late-term pardon of the tax-evading financier, Marc Rich. But Presidents face little risk of rebuke for such decisions.

The betting on whether President Bush will grant pardons to these corporate wrongdoers hedges two competing observations. On one hand, President Bush’s record on just use of law is weak (or mixed, at best), increasing the odds that pardons will be forthcoming. On the other, the country, in the early grip of a deepening recession with roots in perceived corporate financial deception, is unlikelyin in the mood to forgive or offer redemption to crooked business executives.

Net: the smart money is on pardons, for all three of these fellows–and perhaps thousands more.

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List of Financial Regulation Conferences?

Financial regulation conferences are regularly held year in and year out by numerous organizations, including universities, throughout the world. But the current economic crisis seems to have caused a spike in the number and diversity of these gatherings. This may reflect how complex the current situation is.

A complete account of the precise causes of the ongoing crisis remains elusive. True, unregulated financial instruments seem to have contributed to excessive liquidity that fueled a speculative price bubble in many housing markets. But exact contours of the dynamics and the role of other forces remain uncertain.

In addition, the full consequences of these precipitating causes have not yet even manifested let alone been resolved. Billions of dollars of unregulated financial instruments remain outstanding, un-matured, and prospects for increasing default levels remain.

Efforts to mitigate or reverse the costs of the crisis, including the Treasury-Congress’s various interventions, are not working well or quickly. Additional support for the auto industry remains a political and economic challenge. Ultimately, therefore, most policy reforms designed to prevent or alleviate recurrences are necessarily made cautiously.

It is not surprising that there should be a proliferation of conferences probing the fundamental issues underlying all of this. It could be helpful to have a complete list of upcoming conferences. A short list appears below (concentrating on those with US, academic and/or law attributes). It would be wonderful if readers would use the comment feature to mention any other scheduled conferences with such attributes.

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