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Beyond Issuers: The Future of Private Securities Litigation
Get PDFPrivate securities litigation has traditionally been viewed as a subfield of corporate governance, reducing agency costs by disciplining wayward management. In this brief Symposium essay, I argue that the future of private securities litigation lies beyond issuers. I discuss how a fraud claim under Rule 10b-5 can be understood as a kind of economic tort, and set out, in broad strokes, an economic analysis of claims against non-issuer defendants. I then consider emerging trends in the case law against non-issuers in social media and market manipulation cases. I conclude by identifying some challenges and opportunities for securities litigation in a “beyond issuer” era
Igniting Action to Reduce Gas Flaring: Real Opportunities. Real Projects. Real Results.
Get PDFGas flaring is a major global challenge. Despite bold commitments from governments, national oil companies (NOCs), international oil companies (IOCs), and leading independents, global flaring levels have stagnated at around 140–150 BCM per year, emitting up to 1 billion tonnes of CO2-equivalent greenhouse gases annually, while representing as much as $30 billion per year in potential lost revenue.
Numerous studies have outlined how flared gas can be captured and monetized – through power generation, fertilizers, petrochemicals, LNG and pipeline exports, among other use cases. Substantial reductions in flaring are not only technically achievable but can often create significant commercial value with attractive returns. Compared with other levers, reducing gas flaring is a material decarbonization “quick win.”
This report, co-authored with Capterio and generously supported by the Grantham Foundation, illustrates the potential to reduce flaring with six case studies, going beyond analyzing the “what” and “why” of flaring, and focusing on the “how” to unlock and accelerate delivery. Three project-based case studies present projects that have successfully captured and utilized associated gas in countries and regions that are not among the global leaders in flare reduction (Angola, the Kurdistan Region of Iraq, and Argentina - links coming soon). Three country-based case studies (Federal Iraq, Egypt, and Algeria - links coming soon) highlight not only where modest progress in flare reduction has been observed, but also where opportunities to do more can and should be developed
The Past, Present, and Future of Proxy Voting Choice
Get PDFThis article provides an early attempt at understanding what voluntary pass-through voting could mean for the marketplace. I first provide an overview of my argument in my 2018 Journal of Corporation Law article and the events that followed. I then survey passthrough voting initiatives that have taken hold at three asset managers — BlackRock, Vanguard, and State Street. I then conclude with some preliminary observations about how voting choice is likely to affect the proxy voting landscape and outline open questions
Jurisdiction: Courts Versus Arbitrators
No full textThe problem of arbitral jurisdiction, while easily stated, is not easily resolved: What is the optimal allocation of authority between courts and arbitrators in interpreting an arbitration agreement and determining whether an arbitration is valid, applicable, and enforceable? This chapter assesses this allocation of authority in New York, a matter largely governed, in view of its subject, by federal law. It examines the different scenarios in which the question arises, attempting to describe, among other things, courts’ and arbitrators’ likely choice of applicable law and the degree of independent judgment or deference that courts and arbitrators exercise in each scenario.
Arbitration agreements are a type of forum selection clause that “specify an arbitral forum for resolution of differences” between the parties. While forum selection clauses may be of a “derogation” nature (i.e., may designate an exclusive forum for the resolution of covered disputes) or of a “prorogation” nature may merely identify an available possible and leave all other available for a intact), arbitration clauses are ordinarily deemed to have an exclusive character
U.S. Climate Litigation During the Biden Years
No full textUsing cases collected in the Sabin Center for Climate Change Law’s Climate Litigation Database, this report analyzes the 630 climate change lawsuits filed in United States courts while President Joseph R. Biden was in office. During the Biden administration, the federal government reversed course on the first Trump administration’s climate deregulation and embarked on a “whole-of-government approach to combatting the climate crisis.” Many states and municipalities pursued their own efforts to mitigate and prepare for climate change, while other states undertook climate deregulatory efforts. During the four years of the Biden administration, many areas of the U.S. experienced disasters linked to and intensified by climate change, including hurricanes, extreme heat, and wildfires. This report assesses characteristics of the climate cases filed in federal and state courts during this time period, with these policies and climate events as their backdrop and subject matter. The report’s analysis does not assess the outcomes of these cases, many of which remain pending. Instead the report distills elements of these cases: what goals the litigation aimed to achieve, who the parties were, and the underlying subject matter and substantive law. The analysis — which builds on the Sabin Center’s reports on climate litigation during the first Trump administration — provides a quantitative overview of these characteristics of climate litigation. The report concludes with a discussion of how the trends in U.S. climate litigation may be evolving during the second Trump administration as the U.S. federal government once again reverses course on its climate agenda
Climate Change Litigation in New York
Get PDFNumerous lawsuits have been brought in the federal and state courts in New York concerning climate change. Some were under two important state statutes on the subject – the Climate Leadership and Community Protection Act of 2019 (CLCPA)and New York Climate Superfund Act of 2024. Others are brought under various common law, consumer protection, securities, and other theories. This column describes the most important of these cases
For Whose Benefit Is the Freedom of Speech?
Get PDFIn United States v. Alvarez, the US Supreme Court ruled that an official of a water district who introduced himself to his constituents by falsely stating in a public meeting that he had earned the Congressional Medal of Honor had a First Amendment right to make that demonstrably untrue claim. Audience members misled by the statement might well be considered to have a First Amendment interest in not being directly and knowingly lied to in that way. Other members of the community might be thought to have a First Amendment interest in public officials such as Xavier Alvarez telling the truth about their credentials and experiences. Nevertheless, as both the plurality and the concurring justices who together formed the majority in Alvarez viewed the case, it was the liar’s interest in saying what he wished that carried the day. Why is that? Crucial to answering this question is whether ‘the freedom of speech’ that the First Amendment tolerates ‘no law abridging’ is understood to be primarily speaker-centered, audience-centered, or society-centered
The Financial Sector and Global Dollar System
No full textThe second Trump administration’s approach to financial markets and institutions mixes familiar deregulatory policies with a range of other policies (financial and non-financial) that are largely without precedent and may lead to significant structural change in the long term. Combined, these policies have the potential to affect the financial sector in at least four ways. First, they could threaten the foundations of the global dollar system – mutual cooperation, trust, and interdependency, both between the producers and consumers of financial instruments and among the nations that constitute the dollar bloc. Second, they may undermine financial stability by loosening prudential standards, especially with respect to limits on leverage. Third, they can jeopardise consumer and investor confidence by relaxing regulatory standards and lessening financial law enforcement. Fourth, they could frustrate the financial crimes and sanctions regime, notably by promoting stablecoins, which can be used beyond the reach of governments to enable various forms of illicit activity.
These effects, in turn, could have a negative impact on the economy in the medium to long term. They raise the risk of financial instability and a messy deleveraging. They also may put upward pressure on interest rates for public and private dollar-denominated debt. Although the global dollar system has proven robust to past disruptions, and remains well entrenched, the administration’s new stance, if pursued to its logical end, could increase financial fragility and impair capital formation. If that comes to pass, a future exogenous shock to the economic or financial system would pose significant risk to economic growth if policymakers are unable, in the face of such a shock, to come together swiftly to avert a disorderly monetary contraction
Fixing MFW: Fairness and Vision in Controller Self-Dealing
No full textThe legal regime governing controlling shareholders relies on the ability of Delaware courts to police conflicted transactions under the stringent entire fairness standard of review. This review involves both implicit valuation – evaluating the transaction process, and explicit valuation – assessing the fairness of the transaction\u27s financial terms. This Article reveals a critical flaw in this regime: courts cannot reliably engage in valuation when the transaction involves an entrepreneur\u27s idiosyncratic vision for the company. As a result, there is a gaping hole in Delaware\u27s framework for policing the fairness of controller transactions.
Delaware courts have developed guardrails to avoid judicial valuation by rewarding controllers that implement procedural protections for minority shareholders with more favorable review. Nonetheless, we describe how these guardrails have increasingly failed, forcing judicial valuation to the forefront of trials and negating the informed input of shareholders. To address this shortcoming, we propose reforms to the cleansing framework that would enable courts to avoid valuation when the interested parties have endorsed the transaction and its price. We also offer guidance for judicial review of controller self-dealing transactions where necessary that respects the competency of courts. Our modified framework represents an important advancement in the legal treatment of controlling shareholder transactions. It would safeguard minority shareholders from expropriation by controllers while simultaneously encouraging visionary entrepreneurs to engage in value-creating activities, thereby promoting both fairness and innovation in Delaware corporate law
The Trump Administration Reverses U.S. Position on UNRWA Immunities
No full textOn April 24, 2025, the U.S. Department of Justice submitted a letter in a civil lawsuit that maintains for the first time that the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) is not immune from U.S. civil litigation. The letter reverses the position taken by the previous administration in the same lawsuitFootnote 2 and alters nearly eight decades of U.S. practice concerning the immunities of UN entities that are considered subsidiary organs of UN principal organs and thus part of the United Nations itself. Heretofore, the government stated that such organs are entitled to absolute immunity under U.S. treaty obligations. The new position regards UNRWA as an agency with separate legal personality and hence ineligible for the absolute immunity applicable to the United Nations, and it downgrades the immunities of high-ranking UN officials responsible for UNRWA’s activities. The executive branch’s change of position is significant not only for this lawsuit and for UNRWA, but also for UN-affiliated bodies more generally, and for UN officials, including officers at or above the rank of UN assistant secretary-general who enjoy the equivalent of diplomatic immunities under applicable international law. The reversal implicates questions of the international law of immunities, as well as the constitutional and statutory law of the United States. Specifically, the new position will require U.S. courts to address such issues as: whether the U.S. president has constitutional authority to determine the immunities of an entity created by the UN General Assembly; whether courts should autonomously interpret the applicable treaties and statutes dealing with the immunities of such an entity; what degree of deference (if any) should be accorded to a new executive treaty interpretation, announced for the first time in litigation where the prior administration had twice affirmed longstanding positions on the same questions; and how the relevant statute on international organizations immunity should be interpreted in relation to a subsequent and self-executing treaty on UN immunities