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How a “Superstar” CEO Exposes the Necessity for Third Party D&O Insurance
Get PDFhe influence that “superstar” CEOs have over a company’s board of directors can be alarming. Among other things, Elon’s ability to skirt personal liability for seemingly obvious breaches of duty has raised concerns within the realm of corporate governance and corporate regulation. While much has been written on Elon’s influence on Tesla’s board of directors, one area of the law that often gets overlooked that has exacerbated Elon’s corporate governance issues, is that of directors and officers (D&O) liability insurance. While personally insuring board members seems like a very Elon move, it could have broader implications beyond Elon. Are “superstar” CEOs above the law? What are the effects on corporate law? How can we safeguard accountability of fiduciary duties?
This Article narrates the behavior of Elon, as CEO, Chairman, and a director of Tesla, which led to several lawsuits and SEC sanctions. Undoubtably, his behavior and resulting litigation had an impact on Tesla’s D&O insurance rates, leading to Tesla to forgo traditional ways of insuring, resulting in Elon personally insuring the directors. However, this demonstrates the tension that can occur when a conflict arises and a director, as a corporate fiduciary, is required to put the interests of the company above the interest of themselves and the interest of the CEO. This Article explores the importance of D&O insurance and its impact on corporate fiduciary duties by shedding light on the concerns and potential consequences of Tesla-Elon type D&O agreements on corporate governance and corporate law
W&L Law Library Newsletter, Vol. 3, Iss. 2 (Apr. 2024)
Get PDFW&L Law Library Newsletter, Volume 3, Issue 2 (April 2024).https://scholarlycommons.law.wlu.edu/llnewsletter/1005/thumbnail.jp
Comment: Court ADR Analytics
Get PDFFor the reasons in my comments below, Jordan Hicks’s note entitled Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court is a tour de force. Its content and methodology suggest a fresh approach to thinking about court-annexed Alternative Dispute Resolution (“ADR”) in general and court-annexed mandatory nonbinding arbitration programs in particular. The meticulous analysis of three different eras (1978–2008, 2008–2018, and 2018–present) of the program, with a focus on judicial efficiency (speed, failure rate, and prejudicial concerns), provides an important template for how this work might be expanded to look at programs in other courts in different jurisdictions. Whether this approach can be incorporated in the analysis of ADR efficacy on a broader level is the topic of this comment
Comment: Protecting Childhood Independence and the Families Who Embrace It
Get PDFThe legal problem of how to give parents flexibility and how to give children independence cuts to the core of some of our most sacred values: (1) how we raise our kids in this society, (2) the degree to which parents are free to raise their children as they see fit, and (3) the extent to which the state gets to substitute its own judgment for that of parents. Incursions into the family, and disruptions of family security and integrity, should be the exception rather than the rule. Schick-Malone joins a small group of legal scholars who are not content to stand by and watch while families are disrupted and parents are forced to infantilize their children for fear of legal consequences. Her contribution to the discussion and debate in this area is most welcome, as it highlights the problem and raises awareness of the need for better solutions and better approaches
ESG, Sustainability Disclosure, and Institutional Investor Stewardship
Get PDFThis Article sheds new light on the link between sustainability disclosure and institutional investors’ stewardship activities aimed at promoting improvements in the ESG performance of investee companies. On the one hand, sustainability disclosure is one of the information elements that may be relevant to institutional investors’ stewardship activities. On the other hand, improving the quality of sustainability reports provided by investee companies is often the ultimate goal of investor engagement initiatives. The role of climate and social disclosure is problematic from both perspectives. First, institutional investors, especially those with broadly diversified portfolios, are unable to use sustainability information directly and rely on ESG ratings and indices for their investment and stewardship strategies due to the very high costs involved. Therefore, in addition to the fact that the regulatory framework still appears to be fragmented and that there are differences between different sets of sustainability disclosures, European legislation shows that it is not enough to provide for climate and social disclosure requirements and that regulation of ESG ratings and indices is essential to make them more transparent and reliable. Second, the decision by non‑activist institutional investors to focus part of their engagement initiatives on sustainability disclosure, for example by requiring a higher degree of transparency or the adoption of a particular reporting framework, appears to be dictated by a desire to avoid more intrusive (and perceived as more aggressive) initiatives aimed directly at encouraging changes in the environmental strategies or policies of the companies concerned
Fitting a Block into a Sphere Mold: The Inadequacy of Current Data Privacy Regulations in Protecting Data Privacy within the Blockchain Space
Get PDFDespite global imposition of data privacy laws and regulations, data privacy is a nonexistent luxury amongst the data-charged world we live in. Data privacy has long been established as a fundamental right. Entities have successfully established robust methodologies around existing data privacy laws and regulations to utilize past consumer behavior to predict, impact and manipulate current and future consumer behaviors. This phenomenon has been commonly coined as “corporate surveillance.” Emerging spaces arising through technological developments have greater access into consumer data to impact economic choices. Specifically, the blockchain space, through its unique open-source and permanent traits, has been able to skirt around data privacy laws and regulations through its nonconventional decentralized nature. Current data privacy regulations are geared towards centralized systems, thus not readily applicable to decentralized blockchains. While most blockchain spaces boast of increased security, the danger lies within the increased volume and access into data collection itself that is not regulated, prompting greater invitation for bad actors. Countries, especially the United States, should impose stricter data privacy regulations to impact the blockchain space to provide consumers greater data protection within emerging new technological spaces. Blockchain spaces should also have minimum data privacy protection mechanisms such as the usage of zero-knowledge proofs and integration of data privacy regulations at the system’s foundation. Through the combination of establishing necessary requirements and heightened regulations, consumer data and privacy can be better protected as a fundamental right
Standing Up to Bounty Laws: Examining State Standing Jurisprudence and Its Effect on Laws Enforced Through Private Rights of Action
Get PDFThe Texas Heartbeat Act (SB 8) adopted a unique enforcement scheme that succeeded in circumventing Roe v. Wade’s protection of a woman’s right to abortion before viability. By prohibiting enforcement of the Act by public officials and instead authorizing enforcement solely through civil actions by “any person,” SB 8 effectively ended a women’s right to abortion after a fetal heartbeat is detected. The passage of this law placed the protection of other constitutionally endowed rights in jeopardy and facilitated the passage of similarly constructed legislation, such as California’s Senate Bill 1327, which authorizes “any person” to sue anyone who manufactures or distributes illegal firearms. Recent articles have examined various avenues for defeating these bounty laws but have fallen short of reaching a pathway to combat this legislation and its harmful effects. This article specifically examines how standing doctrine in Texas and California enables the success of bounty laws, and potential strategies for challenging these laws through state standing jurisprudence
Chief Justice Angela R. Riley and Professor Suzette Malveaux in Conversation at the Eleventh Annual John Paul Stevens Lecture: The Third Sovereign: Tribal Courts and Indian Country Justice
Get PDFThe Byron R. White Center for the Study of American Constitutional Law at the University of Colorado-Boulder’s Law School is a premier research and programming institution aiming to facilitate informed and engaged scholarship and dialogue on constitutional law. As part of this effort, it hosts the annual John Paul Stevens Lecture, named after the U.S. Supreme Court Justice Stevens, who delivered the inaugural lecture in September 2011. This fireside chat brings distinguished jurists from around the country (and even world) to Colorado Law to discuss the state of the judiciary, democracy and current constitutional issues. The esteemed lecture attracts students, lawyers, scholars and community members to Colorado Law to hear about the jurist’s approach to some of the most important legal issues of the day.
The eleventh annual lecture, on October 18, 2022, was hosted in partnership with Colorado Law’s American-Indian Law Program. This program provides students with robust opportunities to study and gain practical experience in American Indian law. Together with the White Center, it chose Professor and Chief Justice Angela R. Riley to deliver the Stevens Lecture. Chief Justice Riley joins the ranks of other esteemed jurists who have given the Stevens Lecture, including; six former United States Supreme Court justices, U.S. federal circuit court judges, state supreme court justices and appellate court judges, and a former justice on South Africa’s Constitutional Court. Chief Justice Riley is the first Tribal Court Justice, first member of a federally-recognized tribe, and first American Indian woman to deliver the lecture. This bestowed honor formally recognizes the substantial role, and necessity, of federal Indian law in American constitutional and civil rights legal jurisprudence
Book Review, Her Honor: Stories of Challenge and Triumph from Women Judges by Lauren S. Rikleen (2024)
No full textIn an inspiring collection of stories, Her Honor: Stories of Challenge and Triumph from Women Judges takes readers on a journey into the lives and experiences of 25 female judges. These distinguished women are all recipients of the American Bar Association’s Margaret Brent Award, an honor bestowed upon women who achieve professional excellence and serve as inspirations in the legal field. The collection of narratives in this book shines a light on the exceptional lives, hardships, and accomplishments of these exceptional women, leaving readers feeling empowered and motivated