Washington and Lee law professors Lyman P.Q. Johnson and David Millon, along with distinguished colleagues, have authored and submitted comments to the Centers for Medicare and Medicaid Services, Department of Health and Human Services. Specifically, the comments address the proposed definition of “eligible organization” for purposes of coverage of certain preventative services under the Affordable Care Act.
From the abstract:
In late August 2014, after suffering a defeat in the Supreme Court Hobby Lobby decision when the Court held that business corporations are “persons” that can “exercise religion,” the Department of Health and Human Services (“HHS”) proposed new rules defining “eligible organizations.” Purportedly designed to accommodate the Hobby Lobby ruling, the proposed rules do not comport with the reasoning of that important decision and they unjustifiably seek to permit only a small group of business corporations to be exempt from providing contraceptive coverage on religious grounds. This comment letter to the HHS about its proposed rules makes several theoretical and practical points about the Hobby Lobby holding and how the proposed rules fail to reflect the Court’s reasoning. The letter also addresses other approaches to avoid in the rulemaking process and argues for rules that, unlike what the HHS has proposed, align with the Supreme Court’s reasoning while being consonant with generally applicable precepts of state law and principles of federalism.
The full letter may be read here.
Washington and Lee law professors Christopher Bruner and David Millon will speak on theories of the corporate form at the UCLA School of Law on April 11-12, 2014. Titled “Competing Theories of Corporate Governance,” the conference is sponsored by UCLA’s Lowell Milken Institute for Business Law and Policy and organized by Professor Stephen Bainbridge, UCLA’s William D. Warren Distinguished Professor of Law.
Over recent decades, a number of theories have been advanced to describe the balance of power between shareholders and boards of directors, on the one hand, and the aims toward which corporate decision-making ought to be directed, on the other. Professor Millon will critique one such theory, the “team production” model, and Professor Bruner will discuss the implications of various theories for judicial review of director decisions.
Washington & Lee law professor Lyman P.Q. Johnson will publish in the forthcoming issue of the Washington & Lee Law Review. The article, The Dwindling of Revlon (with Rob Ricca) was recently reviewed by another Washington and lee law professor, David Millon at Jotwell: Corporate Law.
The review is titled What’s Left of Mandatory Shareholder Primacy? and was published on March 18, 2014.
Washington & Lee Law Professors Lyman Johnson and David Millon have just posted a critique of a forthcoming piece by Professors Bebchuk and Jackson. Their post is available at the Professor Bainbridge blog:
Preempting Professors Bebchuk and Jackson: Poison Pills, State Corporate Law, and the Williams Act
Lyman Johnson & David Millon
Washington & Lee University School of Law
Professors Lucian Bebchuk and Robert Jackson recently posted a provocative paper,Towards a Constitutional Review of the Poison-Pill, forthcoming in the Columbia Law Review. The paper, regrettably, makes several claims that are flatly wrong, and it also misreads the Williams Act.
First, Professors Bebchuk and Jackson assert that “corporate law scholars have overlooked the unresolved validity of state-law poison-pill rules”; such scholarship has “focused exclusively on anti-takeover statutes, ignoring the validity of state-law poison-pill rules”; and, [the Bebchuk-Jackson paper is the] “first systematic analysis of the possibility that these rules are preempted by the Williams Act…”
These assertions are incorrect. Twenty-five years ago, we wrote a lengthy article that pointedly examined possible Williams Act preemption of all non-statutory state corporate law rules, including those sanctioning poison pills, that might impede corporate takeovers. We took no final position on the preemption issue in that piece (we addressed that larger question in a companion article published in the Michigan Law Review discussed below) but instead sought only to extend the then lively preemption debate beyond its narrow focus on anti-takeover statutes. Thus, we expressly considered whether state legal rules condoning poison pills might be preempted, concluding, critically, that if “the Williams Act mandates shareholder autonomy, this state law rule clearly undermines that federal policy.” We also explicitly noted that, under the so-called “meaningful opportunity to succeed” standard crafted by federal district judges in Delaware, state common law rules upholding poison pills lack just such a safety valve, and thus may be preempted under that test.
Moreover, we did not confine our analysis to poison pills, but more broadly subjected to preemption analysis all state corporate law rules that might impede takeover bids, including Delaware’s quite extensive judge-made law of takeovers. State decisional law, like state statutes, must, of course, yield to federal law under the Supremacy Clause. Unlike Professors Bebchuk and Jackson, therefore, we were able to explain (in our footnote 15) precisely why it is not the poison pill plans themselves but, rather, judicial rulings upholding them that comprise the state “law” subject to constitutional review. This is a particularly important point for any preemption attack on Delaware poison pill law because it is almost exclusively common law in origin. In focusing on statutes authorizing poison pills and, in the absence of statute, on poison pills as “private contracts,” Professors Bebchuk and Jackson therefore continue to underestimate the potential breadth of the preemption issue we first identified in 1989 and actually make the preemption analysis as to non-statutory poison pills much more elaborate than it needs to be.
Second, Professors Bebchuk and Jackson state that “no court has ever expressly considered a preemption challenge to the validity of state-law poison-pill rules.” That too is an inaccurate statement. In 1995, the Fourth Circuit Court of Appeals rejected a preemption challenge to four of Virginia’s corporate statutory provisions, including a provision authorizing poison pills and a provision codifying the director standard of conduct as being ‘good faith business judgment.” The Williams Act challenge thus went far beyond the Control Share Acquisition and Business Combination statutes. The Fourth Circuit considered the argument made by Tyson Foods, the challenger, that Virginia’s statutes were, in concert, so potent that they made it “impossible” in practice to succeed with a bid. The Court, in forthrightly rejecting the Delaware federal court’s “meaningful opportunity to succeed” standard, observed that the Williams Act did not protect bidders, and upheld all of Virginia’s laws, including the pill provision, against both Supremacy and Commerce Clause attacks. The Supreme Court denied certiorari. Presumably the same analysis would apply to state court judgments validating poison pills in the absence of a statute.
Third, and perhaps of greatest importance, Bebchuk and Jackson’s arguments about the Williams Act’s preemption of poison pill rules are faulty regardless of whether they are sanctioned by statute or judicial decision. As we explained at length in our Michigan Law Review article cited above, the Williams Act does not mandate a federal pro-takeover policy. Rather, Congress chose not to take a position on one side or the other of the then novel debate about the costs and benefits of hostile takeovers. For example, the Senate Report on the bill that became the Williams Act states that it “avoids tipping the balance of regulation either in favor of management or in favor of the person making the hostile takeover bid.” SEC Chairman Cohen echoed this sentiment when he stated that “[t]he Commission does not believe that any bill should be adopted which would either encourage or discourage takeover bids . . ..” Instead, Congress’ objective was the more modest one of requiring disclosure of information relevant to shareholders confronted with a tender offer (consistent with the basic premise of federal securities regulation) and alleviating pressures on shareholders to tender who might otherwise prefer to hold their shares.
As we noted in our Michigan piece, we think the mistake that scholars like Bebchuk and Jackson make when they ascribe preemptive force to the Williams Act results from a mistaken equation of Congressional assumptions about the world of hostile takeovers in 1968 with Congressional intentions about the appropriate balance of power between target company management and shareholders then and in the future. In 1968 state corporate law did little to limit the freedom of shareholders to decide for themselves whether to accept a hostile bid. Congress took that fact for granted and sought to enhance the ability of shareholders to make these choices in an informed, deliberate manner within the existing legal framework. It is wrong, however, to claim that Congress sought not only to make a limited adjustment to the then current legal regime but sought also to in effect freeze that larger context and preserve it for future generations. In 1968, Congress had no reason to foresee that by the late 1980s state legislation and judicial opinions would confer broad authority on target company management to block shareholder access to hostile bids. That was not the problem that Congress chose to address in the Williams Act. That statute thus is irrelevant to current debates about the lawfulness of poison pills and other state law anti-takeover devices. Those seeking to resolve such questions in favor of shareholder autonomy need to look elsewhere for legal support.
Shareholder decisions about whether to accept hostile tender offers are more than simply choices about whether to sell or hold securities. Because hostile bids are designed to achieve a change of control, shareholder responses have important corporate governance implications. In this respect, efforts to tie target company management’s hands by attacking the legality of poison pills are not just an effort to give target company shareholders the opportunity to realize short-term gains. They are also part of the larger shareholder empowerment agenda that would limit the discretion of management to determine the long-run best interests of the corporation and its shareholders. That’s a bad idea in other contexts and it’s a bad idea here too.
 Lyman Johnson and David Millon, Does the Williams Act Preempt State Common Law in Hostile Takeovers?, 16 Sec. Reg. L.J. 339 (1989).
 Lyman Johnson and David Millon, Misreading the Williams Act, 87 Mich. L. Rev. 1862 (1989).
 WLR Foods, Inc. v. Tyson Foods, Inc., 65 F.3d 1172 (4th Cir. 1995).
 516 U.S. 1117 (1996).
Washington and Lee law professor David Millon has been appointed the Finance and Legal Affairs Committee of the Law School Admissions Council (LSAC). Prof. Millon will serve a two-year term on the committee, which meets annually to advise the LSAC on a variety of matters.
The LSAC is a nonprofit corporation that provides unique, state-of-the-art products and services to ease the admission process for law schools and their applicants worldwide. Currently, 218 law schools in the United States, Canada, and Australia are members of the Council. All law schools approved by the American Bar Association are LSAC members, as are Canadian law schools recognized by a provincial or territorial law society or government agency.
Prof. Millon is currently finishing his term as President of the Southeastern Association of Law Schools (SEALS), which will hold its annual academic conference next month in Florida.
W&L Law Professors Lyman Johnson and David Millon will be featured at a conference at the University of St. Thomas entitled “Law and the History of Corporate Social Responsibility” this Friday, April 26.
This one-day conference is co-sponsored by the Holloran Center for Ethical Leadership, the Center for Ethical Business Cultures (CEBC), the University of St. Thomas School of Law, the Law Journal Symposium, and Opus College of Business. Scholars in law and business, members of the legal profession, and CEBC members discuss key topics and issues in the development of corporate law and the history of corporate responsibility. The event was inspired by the Fall 2012 publication of CEBC’s landmark history: Corporate Responsibility: The American Experience, Cambridge University Press.
When: Friday, April 26, 2013 8:00 a.m. to 3:00 p.m. (A reception will follow this event.)
Where: Schulze Hall Auditorium, Opus College of Business, University of St. Thomas Minneapolis Campus 1000 LaSalle Ave.Minneapolis, MN 55403-2015
Professor David Millon, the J.B. Stombock Professor of Law at Washington and Lee University, recently wrote a review of Robert G. Eccles, Ioannis Ioannou, & George Serafeim, The Impact of a Corporate Culture of Sustainability on Corporate Behavior and Performance, Harvard Business School Working Paper 12-035 (2012). Here is an excerpt:
Those interested in corporate social responsibility (CSR) and the problems of managerial and investor short-termism should not overlook the paper reviewed here. Robert Eccles, Ioannis Ioannou, and George Serafeim (professors at Harvard, London, and Harvard business schools respectively) make an important contribution to debates among corporate law academics about CSR as an alternative to shareholder primacy. Their paper also has significant relevance to those who are concerned about the costs of shareholder primacy’s current incarnation as an obsession with quarterly earnings and their effects on share prices. The authors present a sophisticated, empirically grounded demonstration of the economic advantages enjoyed by corporations that have chosen to invest in stakeholder relationships and to pursue a long-run approach to wealth creation. Because these companies are shown to outperform financially their more traditionally-minded, shareholder-primacy, short-term-oriented rivals, CSR advocates can assert a ‘business case’ for their belief that corporations should attend to the well-being of nonshareholding stakeholders, including employees, customers, local communities where the firm operates, and those who are affected by its impact on the environment. The business case also lends support to critics of short-termism who have no particular interest in CSR.
A persuasive ‘business case’ for CSR is important because until now the large body of empirical research investigating its efficiency has yielded distinctly mixed results. Further, the ‘ethical case’ for CSR gains limited traction among investors and managers seeking to maximize financial returns. Progressives do need to bear in mind the limits of the business case: it justifies investment in stakeholder well-being only to the extent that there is a financial payoff. Nevertheless, there is no doubt that companies genuinely embracing a stakeholder orientation create more social value than those that do not, even if their motivation is primarily economic.
The full review is available at the Corporate Law JOTWEL at http://corp.jotwell.com.