Corporate and Transactional Law

Emory Law Associate Professor George S. Georgiev is among a select group of researchers who recently received funding from the Ford Foundation, as part of a far-reaching project on how some of the biggest companies in the United States manage and compensate their employees.

Emory’s Center for Transactional Law and Practice has named George W. Kuney and Carol Morgan the 2021 winners of the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills.

Today, the US News and World Report’s 2022 ranking of "America’s Best Graduate Schools" was released, showing Emory Law ranked 29 among ABA-accredited law schools. Specialty rankings demonstrate Emory’s unique strengths in business – corporate law (22), constitutional law (24), contracts – commercial law (22), and health care law (23).  

Associate Professor Alexander Volokh testified before a Georgia House of Representatives subcommittee in a battle between traditional car manufacturers and dealerships, and the electric car industry, which tends to go directly to the consumer for sales. Volokh told the subcommittee that businesses should be allowed to find the best ways to sell their products. "It shouldn't be up to us to tell manufacturers the best way to reach their customers," he said.

Congress is taking on the tech industry, in response to allegations that once scrappy startups have evolved into monopolies that disregard users' privacy in the pursuit of profit. However, getting courts to enforce antitrust laws can be difficult, some professors say. "If you go into court and you say, 'We ought to break up this company because it has a 100% market share,' but you can't show that they did anything reprehensible to gain that market share, then you're going to lose," Professor Alexander Volokh tells Salon.

Congress' mammoth stimulus bill, the Cares Act, delivered a quick and happy benefit to some energy companies. For pipeline company Antero Midstream, it was a $55 million payment in the form of a tax refund. Congress could have required companies applying for tax breaks to show they needed the cash and to promise that they would not distribute it to shareholders or lay off employees, Professor Dorothy A. Brown tells the Washington Post. Instead, the tax breaks were too broad in their applicability, she said, and "you see corporations taking money and laying off employees."

Emory University School of Law welcomes Kristin Johnson to the faculty beginning in January 2021. Johnson comes to Emory Law from Tulane University Law School where she is the McGlinchey Stafford Professor of Law, associate dean for faculty research, an affiliate of the Murphy Institute for Political Economy, and the Gordon Gamm Faculty Scholar.

Professor Liza Vertinsky joined two other law professors in an op-ed that criticizes the FDA's recent announcement that it would authorize emergency use of investigational convalescent plasma as a treatment for COVID-19. They question whether the decision reflected extreme political pressure and a departure from evidence-based standards.

Corporate America has responded to nationwide protests following the killing of George Floyd with a wave of public statements condemning racism, or by contributing financially to support to Black Lives Matter. But there's an underlying assumption, Professor Dorothy Brown tells Marker, that failing to make promised changes around race gets a pass--unlike failing to make promised changes around revenue or profits. CEO payouts or bonuses could be tied to keeping those promises. "Some CEO needs to lose their job because they failed at this," Brown said. "Make CEO pay dependent upon Black employee lives mattering."

Mary of the companies now expressing solidarity with black businesses and anti-discrimination have contributed to systemic inequality through their products as well as their hiring and compensation practices, the New York Times reports. "Most of these corporate statements were put together by the marketing team that was trying not to offend white customers and white employees," said Professor Dorothy A. Brown. "It’s complete B.S. It’s performative."

Professor Richard Freer discusses his career and passion for helping students reach their potential.

The farm-to-table movement, which provides restaurants with locally grown, high-quality produce generated $12 billion last year for small-scale producers including cheesemakers and vintners. But as restaurants have shuttered during the COVID-19 pandemic, small farms are in trouble. "I was getting calls as soon we went into lockdown," Mindy Goldstein, director of the Turner Environmental Law Center, told the New York Times. "The question is how do we get these folks any form of market."

Not all Supreme Court arbitration decisions feature strident 5-4 splits of opinion. Such contentious cases, like Lamps Plus this year (see separate analysis), deal with requirements that claimants pursue their claims alone, rather than en masse. When it comes to arbitration procedure, however, the court generated unanimous opinions in New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019) and Henry Schein, Inc. v. Archer & White Sales, 139 S. Ct. 524 (2019).

Abigail Disney has called out the Walt Disney Co. for paying its CEO Bob Iger an "insane" $65.6 million, more than 1,424 times the median salary of a Disney employee. "A CEO-to-median pay ratio of 1,424 to 1 is certainly shocking--but such numbers are a shiny decoy," Assistant Professor George S. Georgiev writes for the Los Angeles Times. The op-ed discusses a controversial provision of the 2010 Dodd-Frank Act that requires publicly traded companies to report median employee pay and calculate the CEO pay ratio.

Elon Musk has agreed to new social media restrictions in a deal with the Securities and Exchange Commission that provides clarity on what the Tesla chief can tweet without prior approval of a lawyer. "The new deal marks the SEC's second attempt at crafting communications rules to check Mr. Musk," who eschews the cautious social media approach employed by most CEOs, the Financial Times reports. The new terms are "much more watertight," Emory Law Assistant Professor George Georgiev said. "The original deal that they struck wasn't very workable."

"The CEO pay ratio rule that was implemented as part of the Dodd-Frank Act mandates that companies disclose the ratio between CEO pay and median employee pay, and while the ostensible purpose was to shine light on compensation-related governance issues, two law professors have concluded that, given the vagueness of the rule's requirements, it serves as little more than 'click bait' to incite emotions," the article reads, citing the study co-authored by Emory Law Assistant Professor George S. Georgiev. "Trusted Professional" is the newspaper of the N.Y. State Society of CPAs.

"Opponents of the CEO pay ratio rule have a new ally: a comprehensive academic analysis that methodically constructs a case for the rule's worthlessness," CFO magazine says of a recent paper co-authored by Emory Law Assistant Professor George S. Georgiev. The paper, the first academic analysis of the pay ratio rule following the first round of reporting, has a chance of influencing changes to the rule, Georgiev said. "I think our proposal is fairly reasonable, so that's what we're hoping for," he says. "You can't stop journalists from looking for a headline, but you can put the numbers in context."

Research by Emory Law Assistant Professor George S. Georgiev was featured in a Bloomberg opinion article on alternative data and the relevance of a new SEC disclosure requirement: CEO pay ratios, or the difference between the CEO's pay and its median employee. Columnist Matt Levine quotes Georgiev's co-authored article: "We suggest that the pay ratio disclosure rule represents a unique approach to disclosure, which we term disclosure-as-soundbite. This approach is characterized by (1) high public salience--the pay ratio is superficially intuitive and resonates with the public to an extent much greater than other disclosure, and (2) low informational integrity--the pay ratio is a relative outlier in terms of certain baseline characteristics of disclosure, meaning that the information is lacking in accuracy, difficult to interpret, and incomplete."

Emory Law professor George Georgiev's research was quoted Bloomberg Opinion in regards to Google failing to disclose that Google+ exposed their users' private profile data. "Since the threshold for what is material increases as firms get bigger, however, at the very largest firms even matters that are significant or sizeable in absolute terms may be deemed immaterial and remain undisclosed," he said.

How much money does YouTube make? It is a secret: Alphabet Inc., which owns YouTube, does not break out revenue for it separately, Bloomberg reports. The story cites Emory Law Professor George S. Georgiev's article "Too Big to Disclose: Firm Size and Materiality Blindspots in Securities Regulation," which shows how large firms legally take advantage of the materiality standard to avoid disclosure of important matters.

Chinese acquisitions of U.S. companies dropped 56 percent in volume to $44.5 billion, dragged down by concerns about U.S. national-security deal reviews and shifts in China's foreign investment policies, Bloomberg reports. Emory Law Professor George Georgiev mentioned the impact of the Committee on Foreign Investment in the United States, or CFIUS, which evaluates deals that may have national security concerns. "I think CFIUS has always been a wild card," Georgiev said. "When you don't have regulatory certainty, it creates problems."

Uber's recent troubles and ouster of its CEO is not unusual for a Silicon Valley startup. But Uber is no ordinary private start-up. "For Uber to reform itself, the private company needs to behave like a public one." Emory Law Professor George S. Georgiev writes for The Hill.

Decades of court decisions created the "California Rule," which guarantees government workers the pension that was in place on the day they were hired. But a California appeals court declared in August that public retirement plans were not "immutable" and could be reduced. Emory Law Associate Professor Alexander Volokh called the decision "a big change from what the doctrine has been so far" and expressed doubt that it would be upheld, in a Los Angeles Times story about the case.

Clawback policies have become the norm in the U.S., especially at larger companies. Wells Fargo's policy is triggered by financial restatements. The policy allows the bank to recover unvested stock awards where misconduct "might reasonably be expected to" cause "reputational or other harm." Emory Law Assistant Professor George S. Georgiev noted Wells Fargo only acted to enforce its clawback policy after public reaction to the issue became too loud to ignore. "I would favor more oversight by boards over additional complexity in compensation practices," he said. Additional complexity only makes it easier, and creates multiple opportunities, for executives to game the system, he said.

Wells Fargo says it will recover $60 million in stock grants from two top executives in the wake of the phony account-opening scandal. It fired 5,300 employees for opening bogus accounts, returned $2.6 million in improper customer fees and paid a $185 million fine. Those figures pale, though, compared with Wells Fargo's $1.9 trillion in assets and $23 billion in earnings last year. "Even though the fraud was on a massive scale, at the same time, the impact on the bottom line was fairly minimal," said Emory Law Assistant Professor George S. Georgiev. "Often in these borderline cases, you can tell yourself a story as to why something is material or not depending on what you want the outcome to be."

Associate Professor Alexander Volokh is the incoming chair of Emory's Committee on Open Expression. He was quoted by the Chronicle of Higher Education in a story which examines the current debate both inside and outside academe on the concept of "safe space." (subscription required)

The Department of Justice's decision to wind down private-prison contracting was apparently based on those prisons' bad record of safety and security violations compared to public ones, Emory Law Associate Professor Alexander Volokh writes. "It turns out, though, that the DOJ's understanding of private prisons' record is informed by a serious over-reading of faulty comparative studies, in particular a recent study by the Office of the Inspector General."

Emory Law Associate Professor Alexander Volokh was quoted by the BBC on the Obama administration's decision to phase out contracts with private, for-profit prisons that house federal inmates. It was based on findings that they don't provide substantial savings or maintain the same levels of security and safety found in public facilities. Volokh says private prisons could perform better if they followed models such as the United Kingdom's that make payment contingent on performance. Story starts at 1:02.

Student loan borrowers who want to discharge loans need to convince a bankruptcy judge that repaying the loans would cause them to face "undue hardship." Judges can interpret "undue" to mean either "excessive" or "unjust." Interpreting undue to mean excessive raises a much simpler question, Katy Stech writes in the Wall Street Journal. "How would the borrower be affected if told to fully repay the loans? Would that burden be too much?" "The more it becomes an economic calculus, it should be easier" for borrowers to prove, says Emory Law Professor Rafael Pardo.

Emory Law Professor George Shepherd has been invited to testify before a House of Representatives subcommittee, on the issue of how the U.S. Supreme Court's ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council affects the leeway agencies have to interpret laws passed by Congress since. "Since the Supreme Court's ruling in Chevron, there has been increasing confusion in the courts, Congress, the legal bar, and legal academia on the issues of whether, when and how courts should defer to federal agencies' interpretations of the statutes they administer," according to a committee release. The hearing is before the House Judiciary Committee Subcommittee on Regulatory Reform, Commercial and Antitrust Law. Visit https://judiciary.house.gov/ for a live webcast of the hearing at 1:30 p.m. March 15.

Associate Professor Sasha Volokh talked with WDET's Stephen Henderson about private prison services, specifically about the abrupt end of Michigan's contract with the private food service company Aramark, and the differences between public and private prison services.

On July 6, Professor Alexander Volokh filed an amicus brief in DOT v. Ass'n of American Railroads. His primary arguments are: Congress' delegation of authority to Amtrak to develop metrics and standards violates the Due Process Clause; and the appointment of a private arbitrator does not violate any per se rule against delegations of authority to private parties.

In the antitrust case, N.C. Board of Dental Examiners v. FTC, the Board aggressively went after non-dentist teeth whiteners, sending them numerous cease-and-desist letters claiming that they were engaged in the unauthorized practice of dentistry, Associate Professor Alexander Volokh writes in the Washington Post for the Volokh Conspiracy. "Does this violate antitrust law? The Federal Trade Commission said yes." The U.S. Supreme Court agreed 6-3.

Plaintiffs suing General Motors claiming the carmaker covered up evidence of a faulty ignition switch they blame for their daughter's death want GM's lawyers at King & Spalding to hand over confidential internal notes and memos about the case. King & Spalding will fight back, says Emory Law professor Richard Freer. "The attorney-client privilege is sacrosanct," he said. If a judge--as a representative of the government--were to grant the motion to compel King & Spalding to produce its communication with its client or among its lawyers, the action could have far-reaching effects not only on the legal world but on privacy in general, Freer said.

The Educational Credit Management Corp. is buying 56 of Corinthian Colleges' campuses for $24 million. The nonprofit's primary business is as a guarantor of student loans. "This is like the government giving the fox unfettered access to the hen house, which in this case is the students," says Emory Law Professor Rafael Pardo. "The perceived conflict of interest really casts a pall on this whole transaction."

The U.S. Supreme Court is set to hear arguments next month over dentists' ability to keep the business of teeth whitening to themselves. Is it reasonable for a government licensing agency to limit commercial teeth whitening to dentists as a matter of public health, or is it pure self-preservation on the part of dentists who sit on the licensing boards? "If antitrust law is justified anywhere, surely this is one of the most compelling cases," Emory Law Associate Professor Alexander Volokh tells the Daily Report. (Log-in required)

Volokh files amicus cert in DOT v. Ass'n of American Railroads

This is the fourth post in a series on the ¿California rule¿ and constitutional protection of public-sector employee pensions.

A former state attorney general says a bill to replace Georgia's medical malpractice tort system with a workers' compensation-like board is constitutional.

Why is the US seen as the law-enforcer-in-chief while China as the law-breaker?

About 2,000 plaintiffs hope to get picked Sept. 30 when the Supreme Court meets privately for its first conference of the 2013 term. Less than 1% of them are likely to be rewarded.

When your financial adviser becomes either inattentive or nonresponsive to your requests, particularly those relating to information and explanation, an alarm bell should immediately go off in your mind.

How did lawlessness become an axiom about Chineseness rather than a fact needing to be verified empirically, and how did the United States assume the mantle of law's universal appeal?

Life will be much less stressful if you think of your home primarily as a consumption cost rather than as an investment.

If you plan to go it alone as an investor, without the guidance of a professional, it is crucial to educate yourself.

Individuals, for the most part, fall into one of two categories regarding their attitudes toward work: Either they live to work, or they work to live. If your heir falls squarely in the former category, a dramatic change in wealth is not likely to affect his or her motivation to work.

Dozens have sued the New England Compounding Center linked to the deadly fungal meningitis outbreak. Meningitis victims consider suing pharmacy over tainted shots. Professor Richard Freer says the compounder may not have many assets, so patients may consider other defendants.