A recent report from Wilson Sonsini on venture-backed IPOs has lots of interesting tidbits, for example:

• Almost all of the companies are incorporated in Delaware (94%).
• More companies separated the chairman and CEO roles than combined them.
• Board committees at these companies frequently included venture capitalists who had invested in the companies (counting the VCs as independent," despite their share ownership). 
• Almost all of the companies (98%) had adopted a code of business conduct.
• Over 80% of the companies implemented a classified board in connection with the IPO.

Lots more in the report. Thanks to Richard Blake for the tip.

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Ried Hoffman, founder of LinkedIn, is quoted as saying, "If you are not embarrassed by the first version of your product, you’ve launched too late."

This encapsualtes one of the core principles of lean startups, which you can learn about here. (More free courses for entrepreneurs here.)

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DealBook, on Treasury's plan to sell off its GM holdings:

Unlike the A.I.G. rescue, however, the government’s wind-down of its G.M. bailout is expected to lose money. The Treasury Department’s break-even pricepoint is generally estimated at about $53 a share, following the car maker’s I.P.O.

But the Treasury Department has long argued that the auto makers’ bailout was always expected to be unprofitable, offset by both the A.I.G. rescue and the bank recapitalization program.

Shares in G.M. were up 5.7 percent in early morning trading, at $26.93.

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I never met Robert Bork, but I was an intern at the DC Court of Appeals in 1985, when he and Antonin Scalia were still on that court. The word among the staff and clerks at the Court was that one of those two would become the next nominee to the United States Supreme Court, if President Reagan were given the opportunity to nominate someone.

The next year, when William Rehnquist was elevated to Chief Justice on the retirement of Warren Burger, President Reagan had an opportunity to nominate a new Associate Justice. Should he nominate Scalia or Bork?

I don't know if this story is true, but I was told later by someone who claimed to be an insider that President Reagan nominated Scalia in part because he was younger than Bork and in better health. (Bork was a smoker.) If you want a justice to leave a legacy, it probably helps if the justice stays on the Court awhile. That was over 26 years ago.

Of course, Robert Bork would also get his nomination the year after Scalia was confirmed. The battle over Bork's nomination happened during my first year of law school, and it consumed much of the time and attention of the students and faculty at the University of Chicago. That seat eventually went to Anthony Kennedy.

After the Senate rejected Bork's nomination, I took Antitrust from Frank Easterbrook, who introduced me to The Antitrust Paradox. I know a lot of antitrust scholars criticize that book, but as a law student, I was enthralled by Bork's command of history and policy. He was a great writer. Reading that book made me think that being a law professor could be both fun and important, and I am grateful to Bork for that.

Robert Bork died today. He was 85 years old.

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Another reminder that cheese is awesome:

In prehistoric times, when almost every adult was lactose-intolerant, the invention of cheese-making offered herders a way to turn fresh whole cow's milk into a food that they could consume without getting ill, experts said. Cheese contains far less lactose than milk. Moreover, cheese, which normally takes up a tenth of the volume of the milk from which it is made, is easier to store, transport and preserve.

From the comments: "Cheese historians whey in."

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I will have to return before this meeting, but I wish I could be there for it ...

The Scholarship of Professor Larry Ribstein

    Moderator: Douglas K. Moll, University of Houston Law Center

    Speakers:

    Kelli A. Alces, Florida State University College of Law

    Matthew T. Bodie, Saint Louis University School of Law

    J. William Callison, Partner, Faegre Baker Daniels, LLP, Denver, CO

    Ann Ribstein, University of Illinois College of Law

    Roberta Romano, Yale Law School

    Commentators: Lyman P.Q. Johnson, Washington and Lee University School of Law

    Daniel S. Kleinberger, William Mitchell College of Law

    Jeffrey M. Lipshaw, Suffolk University Law School

    Larry Ribstein was a friend to many and a colleague to all of us in the academy. With his untimely passing, he left behind a pioneering and influential body of work across a vast range of subjects. Our program seeks to honor Larry’s legacy by focusing on his scholarship in the unincorporated area. Our speakers include invited presenters as well as presenters who responded to a Call for Papers on the influence of Professor Ribstein's scholarship.

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Our own Christine Hurt will be featured in the Business Associations section ...

Business Associations and Governance in Emerging Economies

    Moderator: Brett H. McDonnell, University of Minnesota Law School

    Speakers:

    Virginia Harper Ho, University of Kansas School of Law

    Nicholas C. Howson, The University of Michigan Law School

    Christine Hurt, University of Illinois College of Law

    Kellye Y. Testy, University of Washington School of Law

    Commentator: Jodie Kirshner, University Lecturer, University of Cambridge F aculty of Law, Cambridge, United Kingdom

    Emerging economies such as China, India, and Brazil play an increasingly important role in the world economy. Companies based in these economies face their own particular set of challenges in corporate governance. In some ways these problems are the same as those faced in developed economies, and in some ways they are quite different. The challenges, and solutions to those challenges, also vary among emerging economies. Panelists will discuss those challenges and how participants in emerging economies are meeting them. Some panelists are drawn from a Call for Papers; other panelists will comment upon those papers and use them as a launching point for a general discussion of corporate governance in emerging economies.

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The Section on Transactional Law and Skills is still emerging, but we have another great program this year ...

Researching and Teaching Transactional Law and Skills in an Increasingly Global World

    Moderator: Brian JM Quinn, Boston College Law School

    Speakers:

    Deborah Burand, The University of Michigan Law School

    John C. Coates, IV, Harvard Law School

    Claire M. Dickerson, Tulane University School of Law

    Juliet M. Moringiello, Widener University School of Law

    Marco Ventoruzzo, Pennsylvania State University, The Dickinson School of Law

    Stephen Zamora, University of Houston Law Center

    The business world is facing continuing challenges related to globalism and cross-border open electronic access through the Internet. Many transactions cross national borders and almost all – including traditional goods and services purchase orders and real property transactions – have international significance. Some legal structures have begun to encompass international business supervision and enforcement efforts, while others remain grounded in traditional nation-state-based regulatory systems. As a result of these changes in the market for business transactions, international and comparative law scholarship has broadened to include a robust and growing business transactional element. All of these changes have increased our challenge as legal scholars and instructors in educating our students in the theory, policy, doctrine, and skills that they will need as participants in the transactional business law setting.

    This two-part panel features (1) two academic paper presentations on international, comparative, or cross-border transactional law topics culled from a Call for Papers, and (2) an expert panel of law teachers commenting on the program theme, implemented in a roundtable discussion format with a moderator, focusing on transactional law scholarship and teaching in this current, dynamic business transactional environment.

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I thought I would highlight a few sessions I will be attending at the AALS Annual Meeting in New Orleans. First up, Contracts ...

The Law of Contract or Laws of Contracts?

    Moderator: Thomas W. Joo, University of California, Davis, School of Law

    Speakers:

    Rachel Arnow-Richman, University of Denver Sturm College of Law,

    David A. Hoffman, Temple University, James E. Beasley School of Law

    Robert C. Illig, University of Oregon School of Law,

    Karen E. Sandrik, Willamette University College of Law,

    “There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant.” - O.W. Holmes, The Path of the Law.

    This story was meant to ridicule the Vermont justice, but he may have been ahead of his time. This year’s Section program will revisit the perennial and fundamental questions about “contract law” as a legal rubric. Is it preferable to analyze “contracts” as a category, or to disperse contracts into “churn” – like categories, such as sales, consumer protection, employment, family relations, intellectual property, securities, and so on? To what extent does the experience of one type of contract justify generalizations about “contract law”? Conversely, what kinds of contracts implicate context-specific practices, markets, or policy concerns justifying specialized analysis and/or doctrine?

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Appeals to Washington have been a part of takeover defense and merger thwarting for some time, but it used to be that antitrust was the principal vehicle for the complaint.  As I've written, there's a lot of effort to turn national security into another component of that appeal, though it is hard to get CFIUS, the committee that reviews foreign acquisitions, to bite (it is much easier in Canada, which reviews foreign acquisitions of Canadian assets on a broader set of appropriateness metrics).  There's now a full DC bar that can advise you on either side of this process, and they aren't afraid to be very clear about the services they are offering.  We'll outsource the rest to the Blog of The Legal Times:

With a Chinese company moving closer to acquiring most of a bankrupt U.S. battery maker for $256.6 million, a Milwaukee-based auto parts manufacturer that bid for the firm has hired a team of Washington lobbyists from Wiley Rein as part of an effort to thwart the deal.

Johnson Controls Inc. has enlisted Wiley Rein public policy consultant Scott Weaver and former Representative Jim Slattery (D-Kan.), a partner who leads the firm's public policy practice, to educate members of Congress about how the sale of A123 Systems Inc. to Chinese auto parts maker Wanxiang America Inc. would impact U.S. Defense Department contracts, according to lobbying registration paperwork filed with Congress on Friday. Slattery said he's made contacts with congressional offices about the proposed transaction.

"There's concern" on Capitol Hill about the A123 deal, he said.

Although Navitas Systems LLC, based in Woodbridge, Ill., would receive A123's U.S. military contracts for $2.3 million, Republican Senators Chuck Grassley of Iowa and John Thune of South Dakota have been vocal about the potential national security implications related to Wanxiang purchasing a company that has technology used by the Defense Department, and is the recipient of about $250 million in government stimulus grants intended to bolster lithium-ion battery manufacturing.

"While we welcome foreign investment in the United States, we must ensure that national security and taxpayer interests are appropriately addressed," the senators wrote in a November 1 letter to U.S. Treasury Secretary Timothy Geithner.

The deal, which the U.S. Bankruptcy Court for the District of Delaware endorsed on December 11, must also secure the approval of the Committee on Foreign Investment in the United States, which Geithner heads.

Dave Vieau, Chief Executive Officer of A123, said in a written statement after the court's decision that his company is "confident" the Committee on Foreign Investment in the United States will back their plan to sell their assets.

"We believe an acquisition by Wanxiang will provide A123 with the financial support necessary to strengthen our competitive position in the global vehicle electrification, grid energy storage and other markets, and we look forward to completing the sale," Vieau said.

Wanxiang and A123 don't have lobbyists registered to advocate for them, according to congressional records.

But Johnson Controls spent $266,500 on federal lobbying during the first three quarters of this year. For its government affairs work, the company used its own staffers, as well as lobbyists from Dutko Worldwide.

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• Anderson on Zywicki on Skeel on the financial crisis.
• This is a nice overview of private equity's transformation into a regulated group of financial products players, and a useful corrective to those who think that money doesn't want to be regulated, and so will increasingly opt for hedge funds and, well, PE.
• Barney Frank: "In no rational world will you have a separate Securities and Exchange Commission and a Commodity Futures Trading Commission. So that one I would have liked to change."

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From Friend of Glom Haskell Murray:

At the upcoming Association of American Law Schools (“AALS”) Annual Meeting, the Nonprofit and Philanthory Law Section is hosting a panel dedicated to legal issues related to social enterprise. 

The panel will take place from 4:00 p.m. until 5:45 p.m. in the Windsor conference room on the third floor of the Hilton New Orleans Riverside.

Dana Brakman Reiser (Brooklyn) will serve as moderator and the panelists will present papers (on the topics listed) in the following order.

Melanie Leslie (Cardozo) –  proposing a joint venture-based framework for social enterprises

Haskell Murray (Regent) – jurisidictional competion and social enterprise

Richard Schmalbeck (Duke) – tax law and social enterprise

Cass Brewer (Georgia State) – also discussing tax law and social enterprise

Alicia Plerhoples (Georgetown) –  pedagogy, focused on teaching social enterprise

I am looking forward to the panel, and I am glad that Dana has organized this group to discuss a number of the legal issues in this emerging space.

Here's a link to Haskell's post.  Unfortunately I won't be at AALS this year, but if I were, I'd certainly check out this panel!

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Elizabeth Trujillo, Jason Yackee, Sonia Rolland, and yours truly are the new leadership of the American Society of International Law's International Economic Law Group, Sonia and I in the vice-chair role.  So hurrah and all that.

The historiography of this group is a bit different from that of the usual business law outfits.  Corporate and securities regulation academics have been thinking about Delaware and the SEC for a very long time, and it seems to me that the new areas of research - executive compensation, what to do about private equity, and so on - fit within the Delaware and SEC framework.  International economic law meant, until about 2000, one thing, and one thing only: the WTO (well, maybe also letters of credit, not that there's a lot of research on that).  Then it meant two things that don't really overlap - the WTO and investment arbitration.  Now there is a third group of financial regulation scholars in the mix, and the next emerging outfit will likely be one focusing on debt instruments.  So what you see on the committees, and at the conferences, are trade specialists, investment specialists, and financial regulatory specialists, with sovereign debt to come.  It isn't easy to knit those research interests together.  But that is why we have the IELG.

So I'm excited to add VCASILIELG to my already impressive acronymic title roster (see also CCABAALSILC)

Anyway, the official announcement follows.

more ...

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European political leaders agreed to cede the power to supervise their most important banks to the European Central Bank - no small thing in a continent where banking and politics have long been conjoined.  This is a pretty good overview.  But the striking nature of the development demands a long view as well:

• As a matter of logic, there's no particularly good reason why the institution that sets monetary policy should be the institution that makes sure that banks are safe and sound.  Why should a mission related to unemployment and interest rates make a bunch of regulators also good at cajoling a bank overweighted in Slovenian real estate, or developing country debt, or whatever, to diversify?  And yet Europe has just combined these functions in the ECB, instead of simply creating a new bank supervisor, independent of the institution that sets monetary policy.
• In doing this, they have adopted an American model of bank supervision.  Fed regulators will tell you time and again how useful it is that they have examiners in the banks they talk to when they talk about the economy.  These regulators appear to have persuaded Europe that they are on to something, even though one might assume that the stronger interest in supervision lies in the ability of the Fed to fund itself through examination fees, thereby avoiding congressional appropriations oversight (it also raises plenty of revenue through bond sales, admittedly).
• Without wanting to be too dramatic about it, you can see how unionization advocates pin their hopes on financial integration.  It did for Alexander Hamilton.  It was a priority for ancient regime France.  Finance is so integratable.  And once finance is integrated within a particular polity, very frequently broader statebuilding follows.  So this may indeed be a red letter day for European Unionists.  Also, by adopting an American central banking plus supervision model, it may pave the way for broader harmonization to come.

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