Thursday, October 30, 2014

Ten Years of Honoring Champions of Justice

By Professors Anne Bloom and John T. Nockleby

As law professors, we've noted how frequently first-year law students mistake good lawyering with being unpleasant toward one’s adversaries. They are often surprised to learn that litigators who routinely oppose each other in court can be quite friendly and not uncommonly have the highest regard for each other.

Loyola Law School created its Civil Justice Program in 2005 to both facilitate a better public understanding of the civil justice system and to honor its finest practitioners. Each year, the program holds a Tribute to the Champions of Justice dinner to recognize lawyers who make significant contributions to the civil justice system through their professional excellence, technical proficiency and uncompromising integrity. Tonight, it will soon host its 10th-annual installment of the honors.

The list of past honorees reads like a who's who list of the Southern California trial bar. Past recipients include: 2013 – Paul R. Fine ’72, founding partner, Daniels, Fine, Israel, Schonbuch & Lebovits, LLP and Christine D. Spagnoli ’86, partner, Greene Broillet & Wheeler, LLP; 2012 – Gary M. Paul ’74; Waters, Kraus & Paul, LLP and David J. O’Keefe, Bonne, Bridges, Mueller, O'Keefe & Nichols; 2011 – Michael J. Bidart, Shernoff Bidart Echeverria Bentley LLP and Donna M. Melby, Paul Hastings LLP; 2010 – Samuel A. "Skip" Keesal Jr., Keesal, Young & Logan and Brian Panish, Panish Shea & Boyle; 2009 – Bob Baker, Baker Keener & Nahra LLP and Gretchen Nelson, Kreindler & Kreindler LLP; 2008 – Raymond Boucher, Khorrami Boucher, LLP and John Collins, founding partner of Collins, Collins, Muir & Stewart LLP; 2007 – Thomas Jerome Nolan, Skadden Arps Slate Meagher & Flom LLP and Mark P. Robinson Jr., Robinson Calcagnie Robinson Shapiro Davis, Inc.; 2006 – Bruce A. Broillet, Greene Broillet & Wheeler, LLP and Edith Matthai, Robie & Matthai, A Professional Corporation; 2005 – James J. Brosnahan Jr., Morrison & Foerster LLP- San Francisco and Thomas V. Girardi ’64, Girardi | Keese.

This year is the 10th anniversary of Loyola's annual tribute. To mark the anniversary, the dinner will honor the previously named Champions of Justice, plus announce two new ones: Louis H. "Duke" DeHaas of La Follette, Johnson, DeHaas, Fesler & Ames and William Shernoff of Shernoff, Bidart, Echeverria & Bentley LLP. The dinner will be held on Thursday, Oct. 30 at the Beverly Hilton.

Wednesday, October 8, 2014

Expression is the Better Part of Valor: Discretion and Good Faith in Entertainment Contracts

By Professor F. Jay Dougherty

It is not unusual for contracts in the entertainment industry to contain provisions leaving performance of an act to one party’s discretion. Often the other party’s attorney will request that such a provision also expressly require good faith. Sometimes, “good faith” is expressly added to the contractual language—after all, the client will act honestly in exercising its discretion. In the past, however, negotiators might reject the request, arguing that good faith and fair dealing is implied in all contracts anyway. In recent years, some courts have moved away from implying an obligation of good faith in a matter left to a party’s discretion. Other courts have implied the good faith obligation, even where a matter of subjective creative judgement is involved. Volatility and uncertainty in connection with implied covenants of good faith suggest that attorneys should be careful to draft such provisions clearly, leaving no ambiguity as to the intent of the parties.

In Third Story Music v. Waits[1], the plaintiff (“TSM”) had entered into an exclusive recording artist agreement with acclaimed singer-songwriter Tom Waits in the 1970’s, and had later transferred its rights under that agreement to Elektra/Asylum Records, a label in the Warner Communications family of record companies (“Warner”). Under the agreements, TSM would produce Waits’ records, and Warner would have the exclusive right to exploit and license those records. The agreement between TSM and Warner also specifically said that Warner “may at [Warner’s] election refrain from any or all of the foregoing.” TSM was to receive a percentage of amounts earned by Warner from the records, and a substantial advance for each album.

In 1993, an affiliate of TSM attempted to obtain a license from Warner to compile and exploit an album of some of the Waits recordings. Warner itself had no objection, but before it would agree to issue the license, it sought Waits’ approval, which he refused to give (assertedly to maximize the value of his later recordings made after the expiration of his agreement with TSM). When Warner refused to issue the license, TSM sued for damages for breach of the implied convenant of good faith and fair dealing. Warner demurred, asserting that the contract language expressly permitting it to refrain from licensing precluded application of the implied covenant. The demurrer was sustained, and affirmed on appeal.

Wednesday, October 1, 2014

Who Will Police the Police?

By Professor Priscilla Ocen

This op-ed originally appeared in the Los Angeles Daily Journal on Sept. 22.

In August, Ferguson, Mo. — a small, predominately black suburb of St. Louis — erupted in protest after the shooting death of Michael Brown, an unarmed black teenager, by a white police officer. Following the shooting, Brown’s body lay prone on the street for hours, visible to neighbors and passersby as a gruesome reminder of the violent end to his young life. Brown’s death at the hands of police, however, was only one of many this summer. In New York, Eric Garner, another unarmed black man, was killed after he was placed a chokehold by members of the New York Police Department. In Los Angeles, Ezell Ford, an unarmed, mentally disabled black man, was shot and killed by members of the Los Angeles Police Department.

The deaths of Brown, Garner and Ford are not isolated incidents. According to the FBI, police officers, on average, kill over 400 people per year in what were determined to be “justifiable homicides.” This figure, however, likely underrepresents the number of police killings as it only includes self reported data from less than 10 percent of police departments and only those killings that have been deemed justified. Nevertheless, it is clear that the burden of deaths in police custody has fallen disproportionately on African-Americans. Annually, nearly a quarter of the 400 killings involve African-Americans. This means that African-Americans are killed by police almost twice a week in the United States. Indeed, in a recent report by Mother Jones magazine, it was found that blacks are roughly four times as likely as whites to die during arrest or while in police custody.

While the killing of African-Americans by law enforcement officers is a tragically common event, criminal penalties for police officers accused of killing African-Americans are startlingly uncommon. In one study of 21 high-profile shootings of unarmed African-Americans, only three officers were successfully prosecuted. As both St. Louis County and federal officials investigate the shooting death of Michael Brown, what kind of outcome should we expect if a criminal case is ultimately filed?

Monday, September 15, 2014

Loyola's Civil Justice Program on 'Injury as Cultural Practice'

By Visiting Professor Anne Bloom
Assistant Director, Civil Justice Program

Last week, the Civil Justice Program was excited to host an international symposium on "Injury as Cultural Practice." The conference featured presentations from an interdisciplinary group of scholars including lawyers, social scientists, anthropologists and social theorists. I was thrilled to collaborate with David Engel, SUNY Distinguished Service Professor at SUNY Buffalo Law School, in organizing and directing the program.

The purpose of the symposium was to continue a dialogue that began last spring on how the meaning of legal injury is constructed through social and cultural practices. For the symposium, we broke the topic into four parts, with three panels on the first day of the symposium and a fourth on the second day.

The first panel on Day One discussed "What Counts as an Injury?" Mary Anne Franks, Associate Professor of Law at University of Miami, led things off with a presentation on "Injury Inequality." Franks argued that the kinds of injuries that affect more powerful members of society tend to be overstated. David Engel presented next with a paper on “Chairs, Stairs, and Automobiles: The Interpretation of Injury and the Absence of Claims.” (One of the many things I learned from this presentation is that chairs are not particularly good for our spines -- still, no one considers the pain that results an "injury").

I presented next with my co-author, the legendary Marc Galanter, Professor of Law Emeritus from the University of Wisconsin Law School. Our paper was called “Good Injuries” and examined the line between "injury" and "enhancement" in contexts like tattooing and plastic surgery. The symposium participants then heard from Sagit Mor, Assistant Professor of Law at Haifa University in Israel, who presented on how injuries are understood from a disability perspective. Loyola's own John Nockleby was next with a fascinating historical paper on the different ways that law has responded to the harm caused by natural disasters.

Tuesday, August 26, 2014

Prof. Berdejo Blogs About Forthcoming Article on the JOBS Act

By Professor Carlos Berdejo

This originally appeared on the CLS Blue Sky Blog, Columbia Law School's blog on corporations and the capital markets.

Congressional consideration of further deregulation of the federal securities laws, informally labeled by some as JOBS II, makes an evaluation of the impact of the JOBS Act of 2012 particularly timely. Several of the provisions of the JOBS Act relax the level of mandatory disclosures required of “emerging growth companies” (EGCs) during the IPO process and phase in certain ongoing regulatory requirements following the completion of an IPO. In a recent article, Going Public After the JOBS Act, I gather data on IPOs during the period 2010-2013 and perform an empirical assessment of the impact the JOBS Act has had on EGCs’ access to the public capital markets.

The evidence indicates that EGCs are not only taking advantage of the scaled disclosure requirements made available to them under the JOBS Act, but are also doing so with increasing frequency. For example, during the time period I studied, 87.3% of EGCs elected to file a confidential draft Form S-1 with the SEC. But in the first three quarters following the enactment of the JOBS Act, the percentage of issuers filing a confidential draft was about 72.7%, which is substantially lower than the percentage of issuers who chose to do so during the later quarters in the sample, 90.6%. There was also a considerable increase in the proportion of issuers that elected to include two rather than the standard three years of audited financial statements – from 27.3% in the first three quarters to 44.8% in the last three quarters (the overall sample average is 41.5%). Notably, EGCs that took advantage of the scaled financial disclosure available under the JOBS Act had lower revenues, were younger, and disproportionally belonged to R&D-intensive industries, such as pharmaceuticals. It is worth noting that these figures exclude IPOs in which the initial Form S-1 was publicly filed with the SEC before the JOBS Act became effective, as including these IPOs would merely inflate the reported inter-temporal differences.

Read the complete post.

Friday, August 22, 2014

Prof. Berdejo to Publish Going Public After the JOBS Act

Professor Carlos Berdejo's article, Going Public After the JOBS Act, will be published by the Ohio State Law Journal.

Abstract:

The Jumpstart Our Business Startups Act of 2012 (JOBS Act) represents one of the most comprehensive overhauls of the securities laws in recent years. One of the principal goals of the JOBS Act is to improve access to the capital markets for smaller issuers, referred to in the act as emerging growth companies, or EGCs. To accomplish this goal, the JOBS Act seeks to reduce the costs of conducting a public offering and complying with the ensuing reporting obligations by making certain disclosure requirements voluntary for EGCs.

This Article examines whether these scaled disclosure rules have increased the number of small issuers conducting an initial public offering (IPO) of their equity securities and the extent to which these issuers have taken advantage of the various exemptions available to them under the JOBS Act. The evidence presented in this Article shows that EGCs have increasingly taken advantage of several of the scaled disclosure provisions of the JOBS Act during their IPOs. EGCs that take advantage of these scaled disclosure provisions are smaller, younger and more likely to belong to the R&D-intensive pharmaceutical industry. Notably, despite the fact that EGCs are embracing these scaled disclosure provisions, there has not been a noticeable increase in the proportion of IPOs conducted by issuers that qualify as EGCs. The Article explores two interrelated explanations for these seemingly contradictory findings.

First, the evidence indicates that the benefits of the JOBS Act may not be as significant as may have been expected. While the direct costs of conducting an IPO have not decreased for EGCs following the enactment of the JOBS Act, indirect costs may have actually increased. In addition, by their second fiscal year, over forty percent of issuers that went public as EGCs no longer qualify for such status, a fact that limits the expected ongoing benefits of the JOBS Act at the going public decision stage. Second, certain issuers that qualify for EGC status may be choosing to pursue private offerings, which certain provisions of the JOBS Act facilitate. Changes in the mix of small issuers going public following the enactment of the JOBS Act suggest such a shift in the pattern of going public decisions across firms.

Thursday, August 21, 2014

Prof. Pollman to Publish A Corporate Right to Privacy

Professor Elizabeth Pollman will publish the article A Corporate Right to Privacy in a forthcoming edition of the Minnesota Law Review. Earlier this summer, she published a blog post about the article on the Conglomerate.

Abstract:

The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions, and the ones that offer the greatest potential for better understanding the nature of corporate rights. This Article analyzes one of those questions—whether corporations have, or should have, a constitutional right to privacy. First, the Article examines the contours of the question in Supreme Court jurisprudence and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on this unresolved issue. Second, the Article examines approaches to determining the scope of corporate constitutional rights and argues that corporate privacy rights should be evaluated not by reference to the corporate form itself or a notion of corporate personhood, but rather by reference to the privacy interests of the various people involved in the corporation and their relationship to the corporation. Further, because corporations exist along a spectrum—from large, publicly traded corporations constituted purely for business purposes to smaller organizations with social, political, or religious purposes—the existence of a corporate privacy right will and should vary.