ProfessorBainbridge.com

Would SEC Mandated ESG Disclosure Violate the First Amendment?

Liz Dunshee reports:

That was fast. Only a couple of weeks ago, Acting SEC Chair Allison Herren Lee gave a speech and issued a corresponding request for public comment on 15 aspects of climate change disclosure. Hunton Andrews Kurth’s Scott Kimpel alerted us that West Virginia’s Attorney General promptly responded with this letter to threaten a First Amendment lawsuit if the SEC adopts rules that require ESG disclosure.

The letter says the “strict scrutiny” framework applies to speech “compelled” by the government – and concludes that the SEC disclosure rules wouldn’t pass muster. The AG rests that conclusion on the theory that ESG info isn’t financially material and is merely meeting investor “demand.” Here’s an excerpt:

Strict scrutiny is the highest First Amendment standard and imposes three requirements. First, the regulation must advance a compelling government interest; second, it must be directly and substantially related to advancing that end; third, it must use the least restrictive means. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). This is a high bar for the government, and it is the “rare case[]” in which a regulation “withstands strict scrutiny.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015).

In Reed v. Town of Gilbert, the Court held that strict scrutiny applies to the type of content ­based speech regulation at issue here. 576 U.S. 155, 159 (2015). According to Justice Breyer, the holding in Reed “inevitably involve[s]” the “governmental regulation of securities.” Id. at 177. In NIFLA v. Becerra, the Court again applied strict scrutiny in a case dealing directly with compelled speech. 138 S. Ct. 2361, 2365-66 (2018). And most recently in an opinion by Justice Kavanaugh, the Court reaffirmed the same standard. Barr v. Am. Ass ‘n of Political Consultants, Inc., 140 S. Ct. 2335, 2346 (2020) ( citing Reed for its holding that “content-based laws are subject to strict scrutiny”). Concurring in part and dissenting in part in that case, Justice Breyer again remarked that this affects “the regulation of securities sales” because, “the regulatory spheres in which the Securities and Exchange Commission … operate[s]” is “defined by content.” Barr at 2360.

First Amendment strict scrutiny is an unmistakable roadblock for your proposal because merely meeting a “demand” for company statements is not a compelling government interest. And while protecting investors from fraud and deceptive practices in the issuance and trading of public securities will likely be held to be a compelling government interest, it is highly unlikely courts will find requiring statements of the kind you propose to directly and substantially serve that end. Moreover, the Commission would be hard-pressed to demonstrate that mandating companies to issue statements regarding environmental, social, and governance matters which are not material to future financial performance constitutes the least-restrictive means for investors to obtain such information. Private competition for customers and investors already leads companies to issue statements on a wide variety of matters of public interest without government compulsion.

It would be preferable for you and the Commission to recognize now that the First Amendment stands in the way of the plans you outlined. If not, these issues will be raised during rulemakings that proceed down this path.

It’s not too surprising to see a threat like this, given the fact that everything these days has become so politically charged. And remember, a First Amendment challenge was successful against the conflict minerals rule.

Supreme Court tosses case challenging Delaware's judicial balance requirement for lack of standing, as I anticipated, but Justice Sotomayor's concurrence poses a couple of interesting questions

Regular readers will recall that I did a Supreme Court preview of Carney v. Adams, the case challenging the Delaware requirements that the membership of its courts be balanced between the two major political parties:

Delaware’s state constitution imposes two unique requirements on the state judiciary that differentiates its courts from those of all other states. Under the bare majority rule, no more than half of the total number of the members of the state Supreme and Superior courts and the Chancery Court can be from the same political party (50 percent plus one if there is an odd number of judges). Under the major party rule, those judges must be from a “major” political party.

James R. Adams is a Delaware lawyer who has been frustrated in his search for a Delaware judicial position because he is a political independent. Adams sued Delaware Governor Carney in federal court seeking to have the Delaware provisions declared unconstitutional. Delaware argued that Adams lacked standing and, in the alternative, that the judicial-selection provisions fell within the policymaker exception to the First Amendment’s ban on conditioning state government positions on membership in a specific political party. The district court ruled for Adams on both grounds.

On appeal, the Third Circuit held that Adams had sufficiently pled Article III standing. As to the merits, the Third Circuit addressed solely the major party rule. The court nevertheless struck down both it and the bare majority rule on grounds that the latter was not severable from the former.

Delaware successfully sought a writ of certiorari from the SCOTUS. I predicted that, if the Court reached the Marits, that Delaware should and would win. However, I also noted that:

In granting the state’s petition, however, the Supreme Court required the parties to also address the question of Adams’ standing.

The Supreme Court’s request for briefing on the standing issue suggests that the Court may be zeroing in on two key weaknesses in Adams’ case. First, Adams had been a registered Democrat until February 2017. While registered as a Democrat, Adams had once applied for a position on the state’s Family Court, as to which the major party rule does not apply, but had never applied for a position on any of the three courts to which that rule does apply. Second, since re-registering as an independent in 2017, Adams had considered applying for a Superior Court vacancy and a Supreme Court vacancy, but had not in fact done so. The Third Circuit found that Adams had nevertheless suffered the requisite injury on fact because it would have been futile for him—as an independent—to have done so. The Third Circuit also rejected Delaware’s argument that prudential considerations mitigated against recognizing Adams as having standing. Accordingly, it seems plausible that the Justices who voted to grant the petition may be teeing this cases up as an opportunity to clarify standing rules.

I was right. As Amy Howe explains over at SCOTUSblog:

The Supreme Court on Thursday tossed out a challenge to a Delaware constitutional provision requiring that appointments to the state’s major courts reflect a political balance. The justices unanimously agreed that John Adams, the Delaware lawyer contesting the requirement, lacks a legal right to sue, known as standing, because he did not show that he was “able and ready” to apply for a judgeship on one of the Delaware courts. ...

In a 12-page opinion by Justice Stephen Breyer, the justices agreed unanimously that Adams had not shown the kind of concrete and specific injury that he needed to challenge Delaware’s party-balance requirements. Emphasizing that the dispute before the court was a “highly fact-specific” one, Breyer wrote that Adams would need to show that he was “‘able and ready’ to apply for a judgeship in the reasonably foreseeable future” – which he could not do. Simply arguing that he would apply, without any references to past applications or efforts to determine when a vacancy might open up, is not enough, Breyer reasoned. Taken in context, Breyer posited, Adams’ argument seems to suggest only “an abstract, generalized grievance, not an actual desire to become a judge.” Moreover, allowing Adams’ lawsuit to go forward based only on his “few words of general intent” would “significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions.”

Breyer cautioned that the Supreme Court was not deciding whether a statement of intent, without more, might be enough to provide a legal right to sue in another case. “But we are satisfied,” he concluded, “that Adams’ words alone are not enough here when placed in the context of this particular record.”

Interestingly, Howe notes that "Justice Sonia Sotomayor filed a brief concurring opinion in which" she previewed her views of the merits in case the case or a similar one gets back to the Court:

First, she noted, “there are potentially material differences” between the “major party” provision and the “bare majority” provision: the latter is a fairly common requirement that applies to many public bodies, while the former is “far rarer” and “arguably impose[s] a greater burden on” First Amendment rights. Second, she continued, those differences suggest that the best course of action for federal courts considering similar questions in the future might be to ask the state’s highest court for a ruling on whether the “bare majority” provision can survive even if the “major party” provision is deemed unconstitutional.

I'm not an expert on Supreme Court procedure, but it seems odd that she would preview the merits in case tossed for lack of standing. Likewise, I am not a scholar of severability but I wonder whether the constitutionality of the statutes under federal law would turn on a state court's view of whether they are severable. 

Over on Twitter, Ann Lipton opines:

severability is a question of statutory interp - what did the legislature intend. in this case, delaware's.

— Ann Lipton (@AnnMLipton) December 10, 2020

Press accounts of the Supreme Court's oral argument in Carney v. Adams, re Delaware's political balance requirement

Long time readers may recall that I wrote a WLF backgrounder on Carney v. Adams, a case challenging Delaware's requirement of a politically balanced judiciary:

Delaware’s state constitution imposes two unique requirements on the state judiciary that differentiates its courts from those of all other states. Under the bare majority rule, no more than half of the total number of the members of the state Supreme and Superior courts and the Chancery Court can be from the same political party (50 percent plus one if there is an odd number of judges). Under the major party rule, those judges must be from a “major” political party.

James R. Adams is a Delaware lawyer who has been frustrated in his search for a Delaware judicial position because he is a political independent. Adams sued Delaware Governor Carney in federal court seeking to have the Delaware provisions declared unconstitutional. Delaware argued that Adams lacked standing and, in the alternative, that the judicial-selection provisions fell within the policymaker exception to the First Amendment’s ban on conditioning state government positions on membership in a specific political party. The district court ruled for Adams on both grounds.

On appeal, the Third Circuit held that Adams had sufficiently pled Article III standing. As to the merits, the Third Circuit addressed solely the major party rule. The court nevertheless struck down both it and the bare majority rule on grounds that the latter was not severable from the former.

I argued that the Supreme Court should reverse.

The Supreme Court heard oral argument in the case yesterday. 

Bloomberg reports that:

The U.S. Supreme Court seemed likely to reinstate Delaware rules requiring a politically balanced state judiciary, which the state argues are responsible for the “First” state’s outsized role in American corporate law.

... the majority of justices during oral argument Oct. 5 signaled they didn’t seem to think the rules unconstitutionally prohibited Independent and third parties from judicial service on Delaware state courts.

Amy Howe at SCOTUSblog reports that the Court may not reach the merits. Delaware counsel argued that Adams lacked standing, but several justices pushed back strongly on that issue. 

... the justices seemed even more concerned about the broader effect that a ruling for Adams might have on other governments around the country. Alito asked Finger whether it would be any different if a governor indicated that he would never appoint someone from the opposing political party as a judge; Finger responded that it would not. Although Finger stressed that a ruling for his client would “not necessarily” have any effect on other partisan-balance rules elsewhere, it is not clear whether the justices shared his view.

Delaware Business Times is something of an outlier, speculating that law is in trouble:

In the first case of their 2020-21 term, the U.S. Supreme Court justices wasted no time needling counsel representing the state of Delaware in a case that could change the decades-old rules under which the state’s top judges are appointed.

The case, Carney v. Adams, will be closely watched by corporate America, as it impacts courts where litigation is heard for more than a million incorporated businesses, impacting shareholders, executives and more. At question is whether a state can dictate that judges be selected from major political parties and whether it can legally divide judgeships amid parties.

Are shareholder inspection rights subject to the internal affairs doctrine?

I have long understood (and taught) that shareholder inspection rights are a rare exception to the internal affairs doctrine. In our casebook, for example, we include Crane Co. v. Anaconda Co., 346 N.E.2d 507 (N.Y. 1976), in which the court applied New York law to determine whether a shareholder (that was incorporated in Illinois) was eligible to examine the stockholder list of a company incorporated in Montana. Plaintiff relied on NY BCL sec. 1315, which permits NY courts to order inspection of books and records of companies incorporated in other states.

In Juul Labs, Inc. v. Grove, CV 2020-0005-JTL, 2020 WL 4691916 (Del. Ch. Aug. 13, 2020), however, the Delaware Chancery Court held that "[s]tockholder inspection rights are a core matter of internal corporate affairs."

This is a critical holding, because the internal affairs doctrine has important constitutional implications:

“[T]he internal affairs doctrine raises important Constitutional concerns—namely, under the Fourteenth Amendment Due Process Clause, the Full Faith and Credit Clause, and the Commerce Clause.” Salzberg v. Sciabacucchi, 227 A.3d 102, 136 (Del. 2020). The Due Process Clause of the Fourteenth Amendment is implicated by the need for directors and officers “to know what law will be applied to their actions” and by the stockholders' “right to know by what standards of accountability they may hold those managing the corporation's business and affairs.” McDermott Inc. v. Lewis, 531 A.2d 206, 216–17 (Del. 1987). The Full Faith and Credit Clause “commands application of the internal affairs doctrine except in the rarecircumstance where national policy is outweighed by a significant interest of the forum state in the corporation and its shareholders.” Id. at 218 (emphasis in original) (footnote omitted). Under the Commerce Clause, a non-chartering state “ ‘has no interest in regulating the internal affairs of foreign corporations.’ ” Id. at 217. ...

The statute at issue in Juul was a California law substantially similar to New York's section 1315. As the court explained:

California is not alone in granting rights to access the books and records of foreign corporations that do business in the state. If other states could define the terms by which stockholders can inspect books and records, then a Delaware corporation could be subjected to different provisions and standards in jurisdictions around the country. Under constitutional principles outlined by the Supreme Court of the United States and under Delaware Supreme Court precedent, stockholder inspection rights are a matter of internal affairs. Grove's rights as a stockholder are governed by Delaware law, not by California law.

If widely accepted, Juul’s application of the internal affairs doctrine to shareholder inspection rights thus calls into question the constitutional validity of statutes like those of New York and California that attempt to treat shareholder inspection rights as being an exception to the internal affairs doctrine.

Juul stands in opposition to prior law that treats access to stockholder lists as a well-established exception to the internal affairs doctrine as a matter of both corporate law and conflicts of law. The Restatement (Second) of Conflict of Laws, for example, provides:

The right of a shareholder to inspect the books of a corporation poses special problems. This is an issue which can practicably be determined differently in different states. This is also an issue which, if decided differently in different states, will not seriously undermine the policy favoring uniform treatment for all shareholders of a corporation. For these reasons, a court will apply to a foreign corporation doing substantial business in the state a local statute providing for the inspection of books by a shareholder if in the court’s opinion the statute embodies an important policy.

Restatement (Second) of Conflict of Laws § 304, comment d (1971). See also Annot., 19 A.L.R.3d 869, 889-91 (1968) (noting that states have traditionally exercised authority to require disclosure of stockholder lists of foreign corporations doing business within their borders).

Although the Juul court did not directly speak to the Restatement commentary, it did address the argument that having multiple states regulating shareholder inspection rights of the same corporation would not be problematic:

An important public policy served by the internal affairs doctrine is to ensure the uniform treatment of directors, officers, and stockholders across jurisdictions. “Uniform treatment of directors, officers and shareholders is an important objective which can only be attained by having the rights and liabilities of those persons with respect to the corporation governed by a single law.” Restatement (Second) of Conflict of Laws § 302, cmt. e. “A State has an interest in promoting stable relationships among parties involved in the corporations it charters, as well as in ensuring that investors in such corporations have an effective voice in corporate affairs.” CTS Corp., 481 U.S. at 91, 107 S.Ct. 1637. Having the law of the state of incorporation govern a corporation's internal affairs “prevent[s] corporations from being subjected to inconsistent legal standards” and “provide[s] certainty and predictability,” thus “protect[ing] the justified expectations of the parties with interests in the corporation.” VantagePoint, 871 A.2d at 1112–13.

...

California's balancing of the competing interests between stockholders and the corporation differs from Delaware's. And California is not alone in granting rights to access the books and records of foreign corporations that do business in the state. If other states could define the terms by which stockholders can inspect books and records, then a Delaware corporation could be subjected to different provisions and standards in jurisdictions around the country.

Update: Our friend Francis Pileggi has an excellent post discussing the case, including treatment of its analysis of the exclusive forum clause.

The prospect of an Amy Comey Barrett nomination to the Supreme Court has unhinged both right- and-left wing anti-Catholic bigots

I think we can reasonably debate such things as:

• Is the Supreme Court too powerful in US life?
• Is it hypocritical for the GOP to nominate someone now after blocking Merrick Garland?
• Is it hypocritical for the Democrats to invoke Garland as a precedent for doing nothing now?
• Does the nominee (if there is one) have the proper legal skills and judicial temperament?

But what I will not put up with is the sort of modern Know-Nothingism being spewed over on Twitter and in some corners of the media at the mere possibility that Amy Comey Barrett might be the nominee. It's proving once again that anti-Catholicism is the last acceptable prejudice.

This good and decent person is being branded a "Catholic fascist," a harbinger of The Handmaid's Tale becoming real, "the Catholic version of Dolores Umbridge," and even worse. Much worse.

It's not just the left. Ann Coulter moronically asks: ""Would her ... idiosyncratic view of the vast deference Catholics owe the pope on political issues...lead to the ongoing influx of immigrants who overwhelmingly vote for pro-choice candidates?"

More indirect precedent for the proposition that California's Female Board Member Quota law is unconstitutional

Keith Paul Bishop has the details.

Roman Catholicism, Religious Assent, and Private Reason: The Case of the Gospel of Life

Longtime regular readers have probably figured out that I am pro-life. Over on Facebook, I posted something expressing a certain amount of dissatisfaction with Chief Justice Roberts' recent decision in June Medical Services v. Russo, the SCOTUS's latest pronouncement on abortion.

This prompted a friend to post the following reply:

Putting abortion to one side for a moment, do you favor things that would reduce the number of unwanted pregnancies? And what exactly? Do you favor free or subsidized contraception? Sex education broadly available to kids? Free or subsidized health care for pregnant moms, and free or subsidized help for young families? More adoptions? Put simply, while we all struggle to find agreement on abortion, are there other things we can do to collectively address your heartfelt objections? I do not agree with you, but I do not want to ignore your heartfelt view. What other policies can I support that you would view as helping here?

These are great questions, fairly asked, and deserve a fair answer. Such an answer, of course, requires more room than the usual Facebook reply. Hence, this blog post.

At least insofar as the question about contraception is concerned, I would respectfully suggest that its phrasing is problematic. I am, as you know, a Roman Catholic who tries (but all too often fails) to adhere to the faith. A core tenet of Roman Catholicism is the doctrine of religious assent:

Divine assistance is also given to the successors of the apostles, teaching in communion with the successor of Peter, and, in a particular way, to the bishop of Rome, pastor of the whole Church, when, without arriving at an infallible definition and without pronouncing in a "definitive manner," they propose in the exercise of the ordinary Magisterium a teaching that leads to better understanding of Revelation in matters of faith and morals. To this ordinary teaching the faithful "are to adhere to it with religious assent"which, though distinct from the assent of faith, is nonetheless an extension of it. (Catechism § 892.)

In his encyclical Evangelium Vitae, Saint Pope John Paul II affirmed that "direct abortion ... always constitutes a grave moral disorder." He specifically stated that this teaching is part of "the Church's Tradition and taught by the ordinary and universal Magisterium." (§ 62) In addition, JPII confirmed that "despite their differences of nature and moral gravity, contraception and abortion are often closely connected, as fruits of the same tree." (§ 13) In so doing, he disappointed those who hoped he would overturn or at least modify the ban on contraception set out in Pope Paul VI's encyclical Humanae Vitae (§ 14).

Although neither encyclical possesses the degree of infallibility Vatican I attributed to papal definitions, both possess the infallibility which Vatican II attributed to the teaching of the "ordinary and universal magisterium." (See Sullivan). As such, both command religious assent.

So what does that mean? The Dogmatic Constitution on the Church (Lumen Gentium) teaches that religious assent requires we acknowledge the teachings "with reverence" and "sincerely" adhere thereto. Despite the arguments of some Cafeteria Catholics I can't see any way around my obligation to adhere to the Church's position on contraception.

By the way, let me touch on an issue that often comes up at this point. Some critics of the doctrine of religious assent, especially as applied to issues involving the Gospel of Life, contend that it treats Catholics as unthinking automatons marching to the dictates of the Church hierarchy. The relationship between individual reason and religious assent is extremely complex. It is worth pointing out, however, that the church encourages lay initiative “especially when the matter involves discovering or inventing the means for permeating social, political, and economic realities with the demands of Christian doctrine and life.” (Catechism § 899) The Church also acknowledges that:

In the work of teaching and applying Christian morality, the Church needs the dedication of pastors, the knowledge of theologians, and the contribution of all Christians and men of good will. Faith and the practice of the Gospel provide each person with an experience of life "in Christ," who enlightens him and makes him able to evaluate the divine and human realities according to the Spirit of God.Thus the Holy Spirit can use the humblest to enlighten the learned and those in the highest positions. (Catechism § 2038) 

Hence, it is the task of Catholic intellectuals to exercise critical reflective judgment with respect to society, the Church, and the relationship between the two. An an active and critical role for the laity seems especially important with respect to economic life, as to which JPII emphasized that “church has no models to present." (Centesimus Annus § 43) I note in passing that this is why my scholarship is increasingly focused on using Catholic social teaching to critique corporate law.

But I digress.

As for my friend's other proposals, they all strike me as reasonable and desirable. The Gospel of Life teaches that we have to respect life from its beginning at conception to its end at natural death. Hence, my problem with the American political duopoly is that too many Republicans appear to care about life only until birth and that too many Democrats appear to only care about life after birth. In contrast, a polity founded on Catholic social thought would recognize that the "starting point for a correct and constructive relationship between the family and society is the recognition of the subjectivity and the social priority of the family. Their intimate relationship requires that 'society should never fail in its fundamental task of respecting and fostering the family.'" (Compendium § 252)

Accordingly, I am in substantial agreement with the platform of the American Solidarity Party:

• Federal and state governments must enact constitutional and legal measures establishing the right to life from conception until natural death. These measures specifically include a constitutional amendment clarifying that there is no right to abortion, as well as laws that prohibit or restrict abortion. Because human life begins at conception, the intentional destruction of human embryos in any context must end.
• Federal, state, and local governments must end taxpayer funding of organizations that provide, promote, or facilitate abortions, and of health-care plans that include abortion coverage. Such funding should be redirected to organizations that promote healthy pregnancies and prenatal care.
• Federal and state governments must end capital punishment in light of its disproportionate use against those with fewer legal resources, the impossibility of reversal, and the existence of alternative ways to ensure protection for the rest of society.
• We support efforts to help prevent the tragedy of suicide, including universal access to affordable mental-health care and the destigmatization of mental illness. Assisted suicide and euthanasia are a violation of disability rights, medical ethics, and human dignity, and must be prohibited in every state.
• Federal and state governments should collaborate to guarantee universal healthcare by diverse means, including single-payer initiatives, direct subsidization of provider networks, subsidized education for medical professionals willing to work in rural areas, support for cost-sharing programs and mutual aid societies, home care grants, simplified regulation, and the easing of restrictions on the importation of prescription drugs.
• Health policy must include protections for those with preexisting, chronic, and terminal conditions. We must include those who have no means to save for an emergency, people at every stage of life from prenatal care to hospice care, and people who find themselves in need of medical assistance while away from their home network.

Does that answer the question?

Judicial Watch has Standing to Bring Suit Against the California Board of Director Gender Quota Law

Keith Paul Bishop reports:

Last August, I reported on the filing of a taxpayer challenge to California's Board Gender Quota Law.  Crest v. Padilla, Cal. Super. Ct. Case No. 19STCV27561.  California's Secretary of State, Alex Padilla, was named as the defendant in his official capacity.  The plaintiffs allege that the law (SB 826) violates Articles 7 and 31 of the California Constitution.  In October of last year, Secretary Padilla filed a demurrer to the suit, arguing that the plaintiffs lack standing and that the action is not ripe.  Last week, Superior Court Judge Maureen Duffy-Lewis overruled the Secretary of State's demurrer ....

The Secretary of State, who is represented by the Attorney General, will be required to answer the complaint and we may all eventually get an answer to the question of the law's constitutionality.

Regular readers will recall that I have argued that the internal affairs doctrine has constitutional status and that the California statute is an unconstitutional violation thereof.

Stanford Law Professor Michael McConnell on the Free Exercise Clause and COVID-19

Maggie Gallagher reports:

Prof. McConnell briefed us all on the state of the law unfolding in multiple courts across the country:

"The real problem and this is what I think is quite disturbing from a Constitutional point of view, is that any governor has taken the view that religious activity be completely banned...It's treated the way you might treat going to a movie; it is not an essential activity...It is my view and it has been the view now of several federal courts, the First Amendment actually answers that question. Religious worship is essential, it's not only essential it's one of the most highly protected of all constitutional rights. So insofar as these orders denigrate the overall ability to practice religion because of the assumption that religion is less essential than say, hardware stores, I think that is impermissible, unconstitutional and will be struck down by most courts that look at it."

Daniel Rodriguez on the Wisconsin Supreme Court decision on COVID-19

Dan has a blog post on the 161 page 4-3 decision striking down the Wisconsin governor's shelter-in-place order. He's not impressed:

They never were able to reach any real agreement about why the order was bad.  Nor were they able to give any real guidance to either the executive or legislative branch about truly how to fix the problem.  Nonetheless, we are treated to 161 pages of text, wandering around John Locke, Thomas Jefferson, Scalia and Gorsuch, some prominent anti-administrativists, a couple Wisconsin L Rev student comments, and a bunch of Wisconsin cases that don’t, at least at a glance, seem to be very much on point.

Internal Affairs, the California Board Gender Quota Law, and Chin v. CH2M Hill Companies, Ltd.

Regular readers know that I am working on a forthcoming (with Foundation Press Book) Advanced Corporation Law: A Practical Approach to Corporate Governance. The book is almost done and I have started working on the teachers manual. Today, I tackled the section dealing with California's 2018 board gender quota statute, SB 826 [codified at California Corporations Code § 301.3], which imposed gender diversity quotas on all public corporations whose principal executive offices are located in California. If the corporation has six or more directors, it must have at least three female directors. If it has five board members, it must have at least two female members. If the board has four or fewer members, it must have at least one female director. 

Regular readers will recall that I wrote a briefing paper for The WLF Legal Pulse, in which I argued that the so-called internal affairs doctrine is not just a choice of law doctrine but also makes it "unconstitutional for a state other than the state of incorporation to attempt to regulate a corporation’s internal affairs." 

I excerpt the briefing paper in the forthcoming text and then pose this question:

Is board diversity an internal corporate affair? Does it matter whether one is applying the internal affairs doctrine as a rule of conflicts of law or one of constitutional law?

I am not aware of any case squarely on point, but—unfortunately, only after I published the briefing paper excerpted in the main text—I found a potentially relevant decision; namely Chin v. CH2M Hill Companies, Ltd.[1]

Plainitff Chin was kicked off defendant CH2m Hill Companies, Ltd. (“LTD”)’s board of directors. (More precisely, her term expired and she was not nominated for re-election.) She claimed “that she was not re-nominated to LTD's board of directors because Defendants discriminated against her on the basis of her sex, race, and disability and because Plaintiff had complained of gender discrimination in connection with a female employee whose employment had been terminated.” She brought suit under NY state civil rights statutes.

The defendants argued “that this case must be governed by the law of the state of incorporation and that New York City cannot regulate the internal affairs of a foreign corporation.” The court rejected that argument:

The cases cited by Defendants deal squarely with issues that “closely affect the organic structure or internal administration of the corporation.” Restatement (Second) of Conflict of Laws § 309 cmt. c (1971); see, e.g., In re BP P.L.C. Deriv. Litig., 507 F.Supp.2d 302 (S.D.N.Y.2007) (applying English corporate law to claims of breach of fiduciary duty to shareholders, waste of corporate assets, and commodities trading activities); Prescott v. Plant Indus., Inc., 88 F.R.D. 257 (S.D.N.Y.1980) (applying the internal affairs doctrine where seven individuals received equal votes for three open positions on the board of directors). While undoubtedly set in the context of a board election, our case is less about the validity of the election, or even the nomination of board members, than it is the “existence of groups prejudiced against one another and antagonistic to each other because of their actual or perceived differences, including those based on race, color, ... gender, [or] disability....” N.Y.C. Admin. Code § 8–101. One part of the relief Plaintiff seeks does directly implicate the internal administration of the corporation; reinstatement to the board. The case at bar, however, is concerned with matters that are far broader than the organic structure or internal administration of LTD. Reinstatement to the board may (or may not) be available to Plaintiff, but that does not render impossible the prospect of collecting damages. The aims of the internal affairs doctrine—to save a corporation from conflicting demands—are not necessarily frustrated by the potential requirements of the NYCHRL. This raises the questions of whether there is even a conflict to begin with and whether, if compliance with the NYCHRL is in tension with the demands of Delaware corporate law, this is sufficient (in consideration with other factors) to find that Delaware has a greater interest.

The interest expressed by New York City is, in no uncertain terms, significant. See N.Y.C. Admin. Code § 8–101 (“[T]here is no greater danger to the health, morals, safety and welfare of the city and its inhabitants than the existence of groups prejudiced against one another and antagonistic to each other because of their actual or perceived differences.... [P]rejudice, intolerance, bigotry, and discrimination ... threaten the rights and proper privileges of its inhabitants and menace the institutions and foundation of a free democratic state.”).

I see no reason why a defender of the California statute could not make the same argument. Having said that, the Chin case is dealing not with the constitutionality of the statutes in question, but solely with a choice of law problem. As such, it does not resolve the statute of board diversity laws for purposes of the dormant Commerce Clause, which is the issue to which my briefing paper was addressed. Still, it adds an interesting wrinkle.

Best Supreme Court Headline Ever?

The freedom to practice religion during a pandemic

I've recently read a couple of interesting secular and Catholic perspectives on the titular issue. First, in The NY Times,  Michael W. McConnell and Max Raskin tackle the question "If Liquor Stores Are Essential, Why Isn’t Church?" They posit that:

... religious leaders and public health officials will need to find new ways to deal with the novel conundrums forced on us by this novel coronavirus. Fortunately, these new arrangements can be fashioned with some very old materials: the centuries-old principles of the First Amendment.

Three time-tested principles of the First Amendment stand out as guideposts for navigating the competing demands of religious exercise and public health in a time of contagion.

First, separation of church and state does not give religious communities immunity from regulation that is necessary for the common good. ...

The second principle is that government can regulate religious activity only through what the Supreme Court calls “neutral” and “generally applicable” laws. This means that a government requirement cannot single out religious activity on the ground that it is somehow dispensable or “nonessential.” ...

Third, both sides must seek what the courts call “reasonable accommodations.”

Apropos of seeking reasonable accommodations, I refer you to Archbishop William Lori, who has been one of the most ardent defenders of religious liberty in the hierarchy:

... he is reminding fellow Catholics that “we are a people of faith and reason” and that heeding the government’s orders to suspend religious services is “eminently reasonable” and “it does not in any way attack or undermine our faith.” ...

What is happening now - the suspension of Masses and other sacraments, says Lori - is happening “out of pastoral love for both our people and our priests.”

In recent weeks, some minority Catholic groups have claimed that what is happening is a violation of religious liberty, an argument that is made in the open letter for the launch of a petition titled “We are an Easter People,” which calls upon the bishops to take steps to provide “some form of public celebration of Mass during this time of strife and pandemic.”

Lori - who led the U.S. bishops’ religious liberty committee and was their point person on the issue during the bishops’ clash with the Obama administration over the contraceptive mandate - has another message.

“One of the overriding responsibilities of government is to keep people safe. This is a health and public safety issue. And this is not only a concern that the government has, it’s also a concern of the church,” he told Crux. “The Church has to take steps to ensure that we are kept safe and healthy and those steps have to be reasonable, rational. We do not feel as though we have been forced into doing this by the government. We feel like we’re doing the right thing.”

“We’re doing something important for the sake of our people, for the love for our people, recognizing how painful it is to have churches closed and not to be able to receive the sacraments,” he continued. “Nonetheless, my prayer is that we can minimize the number of deaths and infections and contribute to that day when this pandemic will loosen its grip on us and upon our country and our world. I feel like this is something that we should be doing, and I do not see it at all as a violation of our religious liberties.”

I recommend reading both. 

Will Kokesh Footnote 3 bite the SEC or not? Disgorgement Takes an Odd Turn Before the Supreme Court

Regular readers may recall my article, Kokesh Footnote 3 Notwithstanding: The Future of the Disgorgement Penalty in SEC Cases, 56 Washington University Journal of Law & Policy 17 (2018), available at SSRN: https://ssrn.com/abstract=2992719, in which I argued that:

Disgorgement of ill-gotten gains long has been a basic tool in the Securities and Exchange Commission’s (SEC) penalty toolkit, despite a paucity of statutory authorization. Because disgorgement lacked a statutory framework, courts have had to flesh out the sanction via interstitial rulemaking. In Kokesh v. SEC, the US Supreme Court took up the seemingly technical—but surprisingly important—question of what statute of limitations applies to SEC disgorgement actions. More important, at least for present purposes, the Court’s opinion cast into doubt the validity of the seemingly well-established disgorgement sanction.

Earlier cases based the SEC’s authority to seek and the courts’ power to impose disgorgement on the claim that it is a form of equitable ancillary relief. If disgorgement is a penalty, however, courts lack that power and the SEC lacks that authority. This conclusion follows necessarily from the basic premise that there are no penalties in equity and the complete absence of any statutory authority to impose disgorgement as a legal sanction. Now that the Supreme Court has made clear that disgorgement is, in fact, a penalty, the future of the disgorgement penalty looks bleak.

Bloomberg Law is reporting that:

In an hour-long session in Washington Tuesday, the justices considered the SEC’s use of “disgorgement” to collect money from someone the commission sues in federal court. Disgorgement is distinct from fines and other penalties the SEC seeks, in part because it’s geared toward reimbursing victims.

The justices didn’t appear willing to altogether eliminate disgorgement, which opponents say the SEC is using as an illegal punishment. The argument suggested the court instead might bar the commission from collecting more than the amount of profit a defendant gained through fraud. The justices also indicated they might require the agency to return more money to harmed investors. 

The WSJ is reporting that:

U.S. Supreme Court justices Tuesday indicated they may be inclined to rein in how courts and regulators order wrongdoers to return money earned through illegal investment schemes.

In arguments, liberal and conservative justices questioned how they could narrow the remedy without quashing it outright, an alternative they appeared to reject. ...

Challengers say courts lack express authority from Congress to order the punishment, which is known as disgorgement. The critics also argue the SEC sometimes fails to return the money to investors, making the payments look more like a penalty that would require explicit congressional authority.

Justices on Tuesday appeared to dwell less on those questions and more on how disgorgement fits within an area of law that corrects the harm from misdeeds and makes victims whole.

“Would the government have any difficulty with a rule that the money should be returned to investors where feasible?” asked Justice Neil Gorsuch. The more liberal Justice Elena Kagan posed a similar question, as did other justices.

This strikes me as very odd. On what conceivable basis should the validity of the disgorgement remedy turn on whether the government works harder at paying recoveries over to investors? Especially when there is a private right of action available in most cases for defrauded investors to sue to recover their losses?

Once again, I suspect those of us who work in the securities regulation vein will end up being appalled by a Supreme Court decision, no matter how it comes out on the merits. As Mitu Gulati and I wrote a while back:

There is general agreement that the Supreme Court has not done a very good job in the securities area, especially in recent years. Scholars operating in a wide range of paradigms have criticized the court’s recent securities opinions.  Supreme Court securities law decisions typically lack a broad, consistent understanding of the relevant public policy considerations. Worse yet, they frequently lack such basics as doctrinal coherence and fidelity to prior opinions.

Why doesn’t the Supreme Court do a better job in securities cases? Our model offers an answer. When deciding securities cases, the Court is faced with hard, dry, and highly technical issues. Supreme Court justices and their clerks arrive on the court with little expertise in securities law. One reasonably assumes that neither the justices nor their clerks have much interest developing substantial institutional expertise in this area after they arrive. (Former Justice Powell being the exception that proves these rules.) Accordingly, it would be surprising if the Court’s securities opinions exhibited anything remotely resembling expert craftsmanship.

Under such conditions, we would expect the justices to take securities cases rarely, typically when there is a serious circuit split, which is in fact what we observe.  When obliged to take a securities issue, the Court will seek to minimize the amount of effort required to render a decision. This observation is not intended pejoratively. To the contrary, in terms of our model, the justices are acting rationally. …

Bounded rationality implies that Supreme Court justices (and their clerks) have a limited ability to master legal information, including the myriad complexities of doctrine and policy in the host of areas annually presented to the court. Specialization is a rational response to bounded rationality—the expert in a field makes the most of his limited capacity to absorb and master information by limiting the amount of information that must be processed by limiting the breadth of the field in which he develops expertise. Supreme Court justices will therefore need to specialize, just as experts in other fields must do. Specializing in securities law would not be rational. The psychic rewards of being a justice—present day celebrity and historical fame—are associated with decisions on great constitutional issues, not the minutiae of securities regulation.

 

My Preview of Liu v. SEC

My case brief of Liu v. SEC is now up on the ABA's Supreme Court Preview, but sadly you need a subscription, https://t.co/jdWgQAPEE1 Here's a taste: pic.twitter.com/IhaCyPod4C

— Professor Bainbridge (@ProfBainbridge) February 18, 2020