Supreme Court Rejects Tenenbaum Appeal

Categorize this as dog-bites-man news but since I’ve posted about the Tenenbaum case many times ($675k, More on Tenenbaum, More on the Tenenbaum Judgment, Tenenbaum Postscript, $.70 a Song, and Court Reinstates Tenenbaum Damage Award), and discuss it in class I’ll note that the U.S. Supreme Court, without comment, decided not to hear Joel Tenenbaum’s appeal in his music-piracy case. This is not the end of the case; the federal district court in Boston must decide whether to leave standing the jury’s award of $675,000 in damages to the recording industry.

This is a strange case whose longevity (it began in 2007) reflects its status as an ideological battleground over music piracy–however poorly chosen a field of battle it offers to file-sharing’s true believers.

IPO Falling Flat on Its Face(book)

Some worthwhile analyses of why Facebook’s stock price has fallen below the float just a few days after the IPO:

  • Roger Chen, CNET, Why Facebook’s stock is tanking–“Facebook just isn’t worth $100 billion . . . At $38, Facebook’s price-to-earnings ratio was more than four times that of Google’s 2011 PE ratio. That’s despite Google posting revenue and profit that were 10 times higher than Facebook . . . Apple trades at about 10 times its estimated earnings for next year, while Google has a price-to-earnings ratio of 12. Based on BTIG’s estimate and Business Insider’s own estimate, Facebook has a multiple of 40 to 100 times earnings.”
  •, After Facebook IPO debacle, finger-pointing begins
    • “Some pointed to underwriters offering too many shares, while others blamed an overly strong IPO price and worries about slowing revenue growth at the social network . . .
    • Initial trading on the Nasdaq was delayed for half an hour due to issues with some orders . . . ‘This is arguably the worst performance by an exchange on an IPO — ever,’ said Thomas M. Joyce, chairman and chief executive officer of trading firm Knight Capital Group. ‘The failure was Nasdaq’s’ . . .
    • [I]nvestment banks that arranged the offering overestimated the demand . . . ‘The late addition of 84 million shares to the offering overwhelmed demand, limiting the first day price’ . . .
  • Robert Hof, Forbes, The Facebook IPO Was a Dud-Here are 3 Reasons it Matters–“[N]o pop at all the first day, besides a measly 23-cent rise–which only happened because Facebook’s underwriters bought millions of shares to keep it from going underwater? And today, a 9% 11% plunge? Can anyone really believe that’s in the best interests of Facebook, its employees, and its investors? . . . IPOs have always been a publicity event, and part of that publicity is at least a reasonable pop in the stock price the first day. A rational mind might wish it weren’t so, since that means money the company didn’t get, but that’s the reality of IPOs . . . So the perception of a blown IPO, even if it wasn’t blown in the financial sense, matters . . .
  • It matters to Facebook employees . . . a flat to down stock price isn’t something that tends to keep the most ambitious people working long hours week after week.
  • Prospective employees may look twice at working at Facebook.
  • Valuations of other Internet companies just took a big hit.

Bagel with Cream Cheese and Fries

It is not my custom to wander into the field of nutrition but Your Secret Big Mac Habit from the DASH for Health website is worth reading. The article asks whether–

you may be unknowingly eating “Big Macs” throughout the week. A Big Mac has 550 calories, 29 grams of fat, and 1,000 milligrams of sodium. Are you eating foods that have the same calories, fat and salt?

For instance, suppose your breakfast is orange juice and a Dunkin Donuts bagel with cream cheese.

A Dunkin Donuts multigrain bagel has 330 kcal, 6g fat, and 500mg of sodium. Add their small container of cream cheese for an extra 150 calories, 15g fat, and 250mg sodium. So now we’re at 480 calories. If you add an 6-ounce glass of 100% orange juice at 80 calories , it puts you into Big Mac Land at 560 calories.

Or consider my go-to restaurant lunch item, the chicken caesar salad:

[T]he Olive Garden’s Caesar salad with grilled chicken . . . contains a whopping 610 calories, 40g fat (8 of them saturated fat), and 1230mg sodium.

I suppose there are two responses to these insights: be mindful of what you eat, or stop fooling yourself and eat Big Macs with impunity.

Commence Real Life

Congratulations to today’s School of Management graduates. I can’t count the number of graduating seniors I’ve heard say I don’t want to graduate over the past four months, but the day (or weekend, depending on your family’s tolerance for University events) is here. You can’t crawl back inside the womb. Enjoy the beautiful spring day (sunny, temperature in the high 60s), reflect on everyone who played in role in delivering you to this moment. and get on with whatever is next.

Just let us know how you are doing.


The accident that killed Boston University students Daniela Lekhno, Roch Jauberty, and Austin Brashears, seriously injured Meg Theriault, and injured four others has haunted me since I read the news early last Saturday. Smart, opinionated, engaged, passionate Daniela impressed me indelibly when she was my student in spring 2011. Trite as it is to say, I cannot believe she is gone. She was not on a law track but I hoped to persuade her to take one of my electives because I wanted to experience her again as a student. Her loss, and the loss of those who died with her, is beyond measure. The world is a poorer, meaner place because of it.

I am haunted also by the randomness of this accident’s consequences. Apparently the van hit gravel on the side of the road, the driver over-corrected, and the van rolled. At 21 I was in a similar accident. A group of us–I recall 8 or 9–were driving from Boston to New Orleans for Mardi Gras in my friend’s cargo van, which had two bucket seats in front and nothing but space behind.  On I-95 about 50 miles south of D.C., around 6 am, a gust of wind rocked the van, pushing it to the right. The driver turned the wheel to the left to pull us back into the passing lane. The van’s steering linkage was loose, the front wheels did not respond immediately, and he turned the steering wheel more. The van started to skid to the right so he turned the wheel right, but too hard. The van swayed right, swayed left, started to lean, and flipped. I remember the loud bang each time we hit, and wondered if there would be an enormous final crash when a tractor-trailer plowed into us or we burst into flames. There wasn’t. The van came to rest on its side in the breakdown lane, its nose pointing at the southbound traffic. Inside was a jumble of people, backpacks, sleeping bags, and suitcases. Someone opened the rear door. We helped each other outside. The driver and front passenger exited through the opening left by the shattered windshield. The van was destroyed. The van’s battery–it lived behind the driver’s seat–had torn loose and strewn acid around the interior–something we discovered later when holes appeared in our jeans and jackets. We were shaken and bruised, but the worst injury was to the van’s owner, a small cut over his right eye from flying glass that required one small bandage. Eight or nine people, two seats (the driver and front passenger had buckled their belts shortly before the crash because of the strong winds buffeting the van), everyone else sitting or lying around an empty cargo space, and no serious injuries.

It could have been worse, but it wasn’t. There’s no reason. There may be explanations for escaping unscathed based on how everyone was positioned inside, and why the doors did not open while we rolled, and the light early morning traffic, but those are all random distinctions. There’s no meaning as to why one accident ended in tragedy and another ended as a colorful tale from my youth. This juxtaposition haunts me. Not every accident like this tears out the hearts of the victims’ families, friends, and community. It is unspeakably sad that this one did.

Schneier on Airport Security Profiling

It’s been a long time since I cited security expert Bruce Schneier, who brings rational thought and common sense to discussions dominated by fear and gut reactions. The Trouble With Airport Profiling asks “Why do otherwise rational people think it’s a good idea to profile people at airports?” Responding to a proposal that TSA address its airport security efforts to “Muslims, or anyone who looks like he or she could conceivably be Muslim” Schneier argues that such profiling would put air travelers at greater risk:

  • It is not accurate.

Post 9/11, we’ve had 2 Muslim terrorists on U.S airplanes: the shoe bomber and the underwear bomber. If you assume 0.8% (that’s one estimate of the percentage of Muslim Americans) of the 630 million annual airplane fliers are Muslim and triple it to account for others who look Semitic, then the chances any profiled flier will be a Muslim terrorist is 1 in 80 million. Add the 19 9/11 terrorists — arguably a singular event — that number drops to 1 in 8 million. Either way, because the number of actual terrorists is so low, almost everyone selected by the profile will be innocent.

  • It is under-inclusive.

[T]o assume that only Arab-appearing people are terrorists is dangerously naive. Muslims are black, white, Asian, and everything else — most Muslims are not Arab. Recent terrorists have been European, Asian, African, Hispanic, and Middle Eastern; male and female; young and old.

  • It is too easy to avoid.

A wolf in sheep’s clothing is just a story, but humans are smart and adaptable enough to put the concept into practice.

  • It carries significant social and political costs.

Profiles in Cowardice*

When an opportunity arises to show moral courage Mitt Romney covers his eyes, ears, and mouth until it passes. After Rush Limbaugh called Georgetown Law student Sandra Fluke a “slut” and “prostitute” and “round-heeled” after she testified before Congress on contraception Romney didn’t condemn Limbaugh; Romney said “I’ll just say this, which is, it’s not the language I would have used.” (A friend asked what language would he have used? Trollop? Harlot? Wench?”) The Washington Post reported this week that Romney led a group of prep-school classmates in tackling, pinning down, and cutting off the bleached hair  of another male classmate–the hair offended Romney (“He can’t look like that. That’s wrong. Just look at him!”). Interviewed about the story and incident on Fox Radio

Romney laughed as he said that he didn’t remember the incident, although he acknowledged that “back in high school, you know, I, I did some dumb things. And if anybody was hurt by that or offended, obviously I apologize . . . I participated in a lot of hijinks and pranks during high school, and some might have gone too far. And, for that, I apologize.”

I agree with Gail Collins that “stuff politicians did when they were in high school shouldn’t count. And while this appears to be a particularly mean, and possibly homophobic, incident, it is really a good idea to stick to that rule.” What fails is Romney’s response. Bullying is a significant issue for middle- and high-school students. Homophobic bullying has been linked to high-profile suicides. The Washington Post story served Romney a juicy teachable moment he could have knocked out of the park.  He didn’t even swing at the pitch. “If I hurt you, I apologize” is not an apology. Lawyers use this sleight of hand to make an argument without admitting to the facts underlying it. It’s called “assuming arguendo“–assuming for the sake of argument. It signals no contrition, no acknowledgment of error. It’s chicken, craven, and cowardly.

See also Charles Blow’s “Mean Boys,” Gail Collins’ “The Anatomy of a Jokester,” and the WaPo article.

*For younger readers who don’t recognize the association: