Bite-Sized Business Law

Joining us today is William Moon, a Professor of Business Law at the University of Maryland School of Law, to discuss his essay ‘Beyond Profit Motives’ which he wrote in response to Stephen Bainbridge’s book The Profit Motive. Will reviews Bainbridge’s work, offering an alternative theory of corporate purpose beyond what Will refers to as “ruthless profit maximization for shareholders.” With expertise in business law, corporate governance, offshore finance, and private international law, Will brings a wealth of knowledge to our discussion. Tuning in you’ll learn about Will’s new concession theory, how it differs from the ideas laid out by Bainbridge, and the relationship between the ESG movement and profit maximization. Our conversation covers key areas, including the mechanics of stakeholder capitalism, why ESG goals can be accomplished through enhanced legal compliance and obedience, and how to better align the interests of corporations with societal interests. Listeners should check out our interview of Bainbridge back in May 2023 to help them understand Will’s critiques. To hear all of Will’s insights on his new concession theory and The Profit Motive be sure to tune in today! Key Points From This Episode:•Professor William Moon’s review of Stephen Bainbridge’s book, The Profit Motive.•What inspired him to write ‘Beyond Profit Motives’ in response to The Profit Motive.•An overview of Milton Friedman’s article from 1970 entitled ‘A Friedman Doctrine ‐- The Social Responsibility of Business Is to Increase Its Profits’.•Examining whether there is a true conflict between long-term shareholder profit maximization and achieving environmental, social, and governance (ESG) goals.•Will’s argument against Professor Bainbridge’s conviction that stakeholder capitalism is fundamentally anti-democratic.•An outline of stakeholder capitalism and the different versions of it.•Will’s new concession theory as laid out in his article.•How the new concession theory can support ESG goals.•Why ESG goals can be accomplished through enhanced legal compliance and obedience.•Corporations’ ability to evade laws and the state’s ability to enact laws in response.•Blockchain-based business entities; what types of laws and regulations they are asking for.•Why the new concession theory mostly applies to large business enterprises.•Takeaways from the McDonald’s Caremark case and verdict.•Unpacking the ESG movement’s biggest accomplishments and areas for improvement.•A rundown of the topics to be explored in conversation with the new concession theory. Links Mentioned in Today’s Episode:William Moon‘Beyond Profit Motives’A Friedman doctrine‐- The Social Responsibility of Business Is to Increase Its ProfitsProfessor Elizabeth PollmanElizabeth WarrenBusiness RoundtableStephen BainbridgeStephen Bainbridge on LinkedInThe Profit MotiveFordham University School of Law Corporate Law Center

Bradford Newman, partner at Baker McKenzie and Chair of the firm’s North America Trade Secrets Practice, discusses the potential of AI in transforming our world, the importance of understanding AI usage, the impact of AI on the legal profession and law school curricula, and the urgency of data and privacy protection.

The recent Supreme Court decision on 303 Creative LLC v. Elenis left the nation debating whether the First Amendment grants business owners the constitutional right to turn away certain protected classes of individuals. It also raised other issues about corporate identity and personhood and made us ask: how did we get to the point where courts are treating corporate actors as indistinguishable from natural persons with individual rights? Here to help us unpack these issues is Adam Winkler, the Connell Professor of Law at the UCLA School of Law and a specialist in American constitutional law, the Supreme Court, and gun policy. He has published numerous books and articles, but for today’s discussion, we refer to his award-winning book, We the Corporations: How American Businesses Won Their Civil Rights. Tuning in, you'll learn about the corporate rights movement and the landmark cases that laid the foundation for corporate personhood in America. We also discuss which rights corporations should (and should not) have, the influence corporations have on the electoral process, and how AI might shape our understanding of corporate personhood going forward, plus so much more! Key Points From This Episode:•   Insight into the “corporate rights movement” and the purpose of corporate personhood.•   When companies became people: the history of corporate personhood in America.•   The 200-year quiet revolution led by business corporations to gain constitutional rights.•   Why the Supreme Court has historically sided with businesses.•   The foundations laid for corporate law by Bank of the United States v. Deveaux.•   Citizens United: a landmark decision regarding the political speech rights of corporations.•   Who really speaks when a corporation speaks.•   The influence corporations exert on the electoral process, even without the right to vote.•   Hobby Lobby and freedom of religion.•   Why granting corporations rights based on shareholder’s rights and interests is “slippery.”•   The 303 Creative decision and its intersection between the First Amendment and anti-discrimination laws.•   The problem with distinguishing between closely held corporations and public corporations.•   Property versus liberty: which rights corporations should and should not have.•   How AI might change the way we think about corporate personhood.  Links Mentioned in Today’s Episode:Adam WinklerAdam Winkler on LinkedInAdam Winkler on XWe the CorporationsFordham University School of Law Corporate Law Center

Today on Bite-Sized Business Law, we tackle a topic that we’ve only alluded to in previous episodes, which is the funding of mass tort litigation by outside financiers. Dubbed “opaque capital” by one of today’s guests, its use for funding complex mass tort litigations gives rise to some tricky legal, business, and ethical predicaments that we discuss in detail. Joining us for this conversation are legal scholars Samir Parikh and Maria Glover. Samir is the Robert E. Jones Professor of Advocacy and Ethics at Lewis & Clark Law School and a nationally recognized expert on mass tort restructurings and business reorganizations. His recent article, 'Opaque Capital and Mass Tort Financing’, is sure to garner a lot of attention, as did his recent testimony before the Senate Judiciary Committee regarding the Texas two-step bankruptcy trend. Maria is a Professor of Law at Georgetown University, where she specializes in civil procedure and complex litigation. Maria has also testified before congressional committees and her work is not only published in leading law journals but cited by the media and the US Supreme Court. Tune in to hear Samir and Maria’s hot takes on third-party litigation funding, opaque capital, opportunities for exploitation in the mass tort litigation space, settlements, disclosure, regulation, and more! Key Points From This Episode:•   The history of litigation finance and why mass tort litigation is attracting bad actors.•   Distinguishing between class actions, mass torts, and multi-district litigations (MDL).•   Third-party litigation funding (TPLF) and contingency fees in the US versus Australia.•   The role of TPLF in mass torts, particularly for ad campaigns and lead generation.•   Defining opaque capital and the “new breed” of financiers moving into this space.•   Critical points in the process when TPLF has ugly consequences: the Alchemist's Inversion.•   Maria’s take on the perceived problems with mass tort litigation settlements.•   Claim generation and the trouble with funding that is contingent on quantity for payout.•   Some of the ways that non-meritorious claims affect everyone negatively.•   Outlining the ethical and legal obligations law firms have when accepting funding.•   Opinions on disclosure and transparency when it comes to financier agreements.•   The European movement towards more aggressive regulation in the mass tort space.•   Final comments on how this all relates to the shared ownership of law firms. Links Mentioned in Today’s Episode:Samir ParikhSamir Parikh on LinkedIn‘Opaque Capital and Mass Tort Financing’Maria GloverMaria Glover on LinkedInMaria Glover on XFordham University School of Law Corporate Law Center

The banking turmoil that rocked the past year is the most significant system-wide banking stress since the 2008 financial crisis. Now, regulators are rushing to implement measures to respond to those bank failures and mitigate their impact. In July, federal banking regulators, including the Federal Reserve Board of Governors and the FDIC, proposed new rules around capital requirements and risk, but these measures have actually been a long time coming, with the US considering the adoption of the so-called Basel III Endgame framework ever since 2008. Today, we learn more about what the proposals entail and the potential impact they will have on the economy. Joining us for this discussion is Jeremy Kress, Assistant Professor of Business Law at the University of Michigan Ross and Co-Faculty Director of the University of Michigan’s Center on Finance, Law, and Policy. Jeremy’s research focuses on bank regulation, systemic risk, and financial stability, which makes him the ideal guest to lend his voice to today’s conversation. Also joining today’s discussion is Richard Squire, professor of business law at Fordham Law School and the faculty director of the Fordham Corporate Law Center. Join us as we discuss the Basel III Endgame proposal, whether it will have favorable effects on the US lending environment, the Fed’s role in banking stability, and more! Key Points From This Episode:•   Some context on the 2023 bank failures and the revision of the Basel III standards.•   Defining capital and capital requirements according to bank regulators.•   Different types of risk implicated in the Basel III Endgame proposal.•   The main risks that banks face that most other businesses don’t.•   Understanding the liquidity crisis of 2008 versus 2023.•   Why banks shouldn’t count held-to-maturity securities as highly liquid assets.•   Insight into the AOCI opt-out and how the Basel III Endgame proposal has responded.•   How a broader crisis of confidence in the markets influenced the recent bank failures.•   Why Jeremy believes we’ll see more effective supervision of regional banks going forward.•   The discount window and the Federal Reserve’s role in maintaining banking stability.•   Jeremy’s take on the supposed negative effects of the Basel III Endgame proposal.•   When we can expect to see the proposal finalized. Links Mentioned in Today’s Episode:Jeremy KressUniversity of Michigan Ross School of BusinessJeremy Kress on LinkedInJeremy Kress on TwitterJeremy Kress PapersRichard SquireFordham University School of Law Corporate Law Center

What does capitalism owe to the common good? This is the question raised by Taming the Street: The Old Guard, the New Deal, and FDR’s Fight to Regulate American Capitalism, a riveting new book from award-winning financial journalist and New York Times bestselling author Diana Henriques. Those who saw The Wizard of Lies and The Monster of Wall Street will recognize Diana, whose research and writings formed the basis for both shows. Her latest offering details how President Franklin D. Roosevelt (FDR) battled to regulate Wall Street in the wake of the 1929 stock market crash, ultimately making the finance world safer for retail investors and average Americans. In today’s episode, Diana takes us back to a time when America’s financial landscape was ruled by the titans of vast wealth, largely unrestrained by government, and walks us through a pivotal moment in history: the creation of the SEC. Tuning in, you’ll gain insight into Diana’s motivations for covering this topic, how she believes we should regulate emerging financial industries like crypto, and why Taming the Street is increasingly essential reading as inequality once again reaches Great Depression levels. For a truly fascinating discussion about America’s financial past (and future) with a central cultural voice in reporting white-collar crime and corporate corruption, you won’t want to miss this episode! Key Points From This Episode: •   A look at Diana’s career path into journalism, which she calls “a lifelong goal.”•   Insight into her decision to take on the New Deal in Taming the Street.•   Why this book becomes more critical as the pendulum swings further toward deregulation.•   What life was like for the American working class in the lead-up to the Great Depression.•   Now illegal stock market practices that were common in the 1920s.•   Bill Douglas, Dick Whitney, and other central characters Diana introduces us to in her book.•   The “bedside meeting” with FDR that forms one of the most poignant parts of this story.•   Unpacking Diana’s description of FDR’s “moral Pole Star.”•   Why the health of America’s democracy depends on the fairness of America’s economy.•   Diana’s take on the Silicon Valley Bank collapse and current financial reform battles.•   Her hope to bring awareness to the safety of the banking system today, thanks to FDR.•   Recommendations for regulating emerging financial industries like cryptocurrency. Links Mentioned in Today’s Episode:Diana HenriquesDiana Henriques on LinkedInDiana Henriques on XTaming the StreetThe Wizard of LiesFidelity’s WorldFordham University School of Law Corporate Law Center

The epic investment Burford Capital made in the recent Argentinian YPF oil case delivered incredible results and over $16 billion awarded to plaintiffs. Joining us today on the Bite-Sized Business Law Podcast is commercial litigator and YPF expert, Gabrielle Vázquez to discuss this case. Tune in to hear what this case entailed, Gabrielle’s involvement, the rulings and how they affected the market, and the scary truth about Argentina’s ability to pay. We also discuss how Gabrielle feels about these kinds of litigation financing arrangements before delving into her thoughts about the possible appeal from Argentina. You won’t want to miss this fascinating conversation so press play now!Key Points From This Episode:A brief introduction to today’s guest, Gabrielle Vázquez, and her illustrious career.What the Argentinian oil case is about and how Gabrielle got involved in it.The trial, what rulings were made, and the exact amount of the judgment. The importance of trigger dates in this instance. What Burford Capital gains from this damages award. How this case affected the market in general. The concern that Argentina is unable to pay and whether or not they actually will. Gabrielle shares her thoughts on these types of litigation financing arrangements. Why Gabrielle thinks Argentina will appeal. Links Mentioned in Today’s Episode:Gabrielle Vazquez, McGrail & Bensinger LLPGabrielle Vázquez on LinkedInBurford CapitalSDNY September 8, 2023 Opinion and OrderFordham University School of Law Corporate Law Center

Back in November of 2022, major cryptocurrency exchange FTX filed for Chapter 11 Bankruptcy. This came after the revelation that the company had significant liquidity problems and that its founders were likely misusing customer funds. Since then it’s been one newsworthy development after another, chief among which was the arrest of FTX CEO, Sam Bankman-Fried, followed by his extradition to the United States. A lot has happened since then, including John Ray III’s appointment as CEO of FTX — a prominent attorney who specializes in corporate reorganization — and the removal of Bankman-Fried as CEO. For today’s conversation, we focus on one of the latest developments in the case, namely FTX’s attempt to claw back over a billion dollars allegedly misappropriated by Sam Bankman-Fried and other executives. Lending his expertise to our discussion is return guest Richard Squire, a bankruptcy scholar and Professor of Law at Fordham Law School. We talk with Richard about the complexity of the FTX bankruptcy case, what the outcomes will be based on, and how he expects it to play out. Richard gets into the details of what constitutes fraudulent transfers and constructive fraudulent transfers, and how these can be proven in bankruptcy. We also discuss Bankman-Fried’s notoriously lax bookkeeping (and the impact this could have on FTX’s claims), along with Richard’s assessment of what FTX will be able to claw back and how this compares to other high-profile bankruptcy cases. If you’re interested in learning more about the FTX debacle or simply want to geek out on bankruptcy law, then look no further than today’s conversation with Richard Squire! Key Points From This Episode:•A recap of the events surrounding FTX’s collapse.•Why FTX is suing its former CEO, Sam Bankman-Fried.•What makes the FTX bankruptcy filings so complex.•An overview of what bankruptcy proceedings typically look like (and how they can vary).•Why John Ray III was brought in to replace Sam Bankman-Fried as CEO.•How Sam Bankman-Fried managed (and mismanaged) company funds.•Insight into FTX’s attempt to claw back over a billion dollars.•A rundown of the various ways that transfers can be recalled.•What constitutes a fraudulent transfer and how this can be proven.•Bankman-Fried’s poorly kept financial records and how it impacts the case.•Details about FTX’s sister company Alameda Research.•Payments received by Caroline Ellison; Bankman-Fried’s then-girlfriend and former CEO of Alameda Research.•The definition of a constructive fraudulent transaction and the evidence required to prove it.•What to expect of payments made for legitimate goods and services in this case.•Richard’s assessment of what FTX will be able to claw back for creditors.•How FTX compares to other high-profile bankruptcy cases. Links Mentioned in Today’s Episode: Richard SquireFTX Trading Ltd.Who Is Sam Bankman-Fried?Fordham University School of Law Corporate Law Center

There is one thing that Vladimir Putin cannot tolerate, and that is betrayal (at least according to his autobiography). So when former Wagner Group leader, Yevgeny Prigozhin, led a short-lived mutiny against the authoritarian Russian president and emerged relatively unscathed, many experts were left wondering what Putin’s long-term retribution strategy would be. After two months of speculation, Putin’s intentions were evidently made clear when Yevgeny Prigozhin was killed in a plane crash that proved fatal to everyone aboard his private jet. In light of these revelations, we’re using today’s show to welcome back Peter Clement, a senior research scholar and adjunct professor at the Columbia School of International and Public Affairs (SIPA) and the Salzmann Institute of War and Peace Studies (SIWPS). Tuning in you’ll hear us pick up where we left off in Episode 21 where we discussed Putin’s corporate takeover of the Wagner Group after Prigozhin’s attempted uprising. Our conversation covers the facts surrounding Prigozhin’s death and investigates the threat he posed to Putin. We examine the factors that contributed to Prigozhin’s growing popularity before dissecting how Putin’s actions continue to undermine any hope for foreign investment (or the removal of sanctions). To hear Peter’s insight on this pivotal moment in Russian current affairs, and how it resonates within the broader political landscape, be sure to tune in!Key Points From This Episode:An update on Yevgeny Prigozhin and the plane crash that caused his death.Insight into who else was on the plane; key members within the Wagner Group.How these developments are expected to impact the Wagner Group and their operations.Why Putin’s apparent retaliation against Prigozhin took two months to take place.The one thing Putin cannot tolerate: a betrayal of trust.Implications surrounding Prigozhin’s presence in Africa in the weeks leading up to his death.Prigozhin’s key error in his mutiny against Putin.Social media channels that are critical of the war in Ukraine and Russia’s Ministry of Defense, and how they will be affected by these events.Prigozhin’s continued popularity in Russia and the threat this poses to Putin.How Putin’s actions undermine the potential for foreign investment or the removal of sanctions.The narrative that Putin is trying to push when it comes to Russia and the West.Why we will never know the full truth of certain Russian historical events.Peter’s final thoughts on Putin’s biggest mistakes. Links Mentioned in Today’s Episode: Peter ClementWagner GroupEpisode 21: Peter Clement on Putin's Corporate Takeover of the Wagner GroupAmy MartellaFordham University School of Law Corporate Law Center

Corporate compliance, the notion that businesses must adhere to all applicable laws, regulations, and company policies, is a growing discipline. In this episode, we discuss the ever-increasing focus on corporate compliance with guest Barbara-Ann Boehler. Barbara is the Senior Director of the Program on Corporate Ethics and Compliance at Fordham Law School. She is also an experienced attorney, former compliance officer, and adjunct law professor. In today's conversation, Barbara elaborates on the basics of compliance and shares her thoughts on its growth amidst new regulations. She discusses the importance of compliance buy-in, dealing with the friction between those creating value at the company and compliance officers, and the overall necessity of building a culture of compliance in businesses. To hear more about her thoughts on the challenges between legal and compliance departments and what she thinks about AI and compliance, don’t miss out on this episode! Key Points From This Episode: •Barbara explains the basics of compliance.•What falls under a compliance officer's role and where compliance should be reported.•The three lines of defense at a firm.•Barbara talks about the growth of compliance.•Her thoughts on industries or firms, specifically Crypto, that do not have traditional compliance departments.•The story of FTX and its lack of a risk officer.•Welcoming regulations as a compliance officer.•How to get compliance buy-in, and what does not work.•Dealing with the friction between those creating value for the company and the compliance officers.•Creating a culture of compliance.•Compliance failures and examples of commonly found failures.•The role lawyers play in compliance; when to involve the legal or compliance departments.•The compliance programs offered at Fordham Law (LLM or MSL).•Her thoughts on AI and compliance: advantages and disadvantages.  Links Mentioned in Today’s Episode:Barbara Ann Boehler on LinkedInFINRAChatGPTFordham Compliance ProgramsEpisode 15 —Christopher Conniff on Corporate Criminal EnforcementFordham University School of Law Corporate Law Center