The D & O Diary : Directors and Officers Liability and Insurance : The D & O Diary : Kevin LaCroix : Securities Laws, Corporate Fraud, D & O Litigation

With a relatively recent purchase of an iPad 2, I have made a quantum leap in technology utilization. The iPad is not only a brilliant piece of technology in and of itself, but it is also a platform for a host of brilliant applications. Indeed, there are so many nifty applications that using my iPad has become a process of continuing discovery as I encounter new ways of using the device on virtually a daily basis.

In this post, I share the best applications I have discovered so far. My purposes are two-fold. First, I simply want to pass along the best of my discoveries – some of them are so cool. Second, I want to encourage readers to share with me and with the rest of The D&O Diary community their own iPad application discoveries. With as many as 70,000 apps available for the iPad now and more available every day, there have to been many more brilliant applications out there that I simply haven’t discovered yet.

Before I get into my apps review, I should clarify what in my view makes an application great. First it has to take advantage of the iPad itself, to do something more or better than a website alone can do. Second, it has to be free (or at least at no additional cost). As I discuss below, there are at least some apps for which I am willing to pay, but mostly my cheapskate requirements control. Third, the application has to be easy to install and to use.

I should also add that I am not a gamer, and so I don’t have any opinions about game applications. Readers who want game app recommendations will have to look elsewhere (like here for instance).

So without further ado, here is my list of favorite iPad apps (so far):

News: All of the leading news outlets have iPad apps. I have installed apps for the Wall Street Journal, the New York Times, the Financial Times, and the Economist. They are all pretty good and convenient when I find myself somewhere without access to the print editions of those publications. Overall, though, I prefer reading the print versions. On the other hand, I don’t have print subscriptions to all of them, and it is convenient to be able to browse through them through a single device in one easy to navigate environment. There is something tidy and comfortable about sitting in my easy chair and accessing all of these publications using a single device.

But something better than a bunch of separate applications is a single application that assembles the news in one easy to access and navigate environment. The best iPad news application along these lines is Flipboard. This application has an elegant interface that you can flick through like pages of a magazine. The application assembles news headlines from a host of publications around the world and displays them in an attractive, easy to read format. You can also have your Facebook and Twitter feeds forwarded into the application so that they are presented in the same attractive format.

Music: One of the things that the iPad does particularly well is provide a platform for listening to music. I use a couple of different music apps, and I like them for slightly different reasons.

I like to listen to classical music when I am working, so using the Pandora application, I have assembled a group of “stations” all built around one of the classical music composer (Mozart, Chopin, Telemann, etc.). Then when I access Pandora, I set the “play” function on “Quick Mix” so that the playlist draws randomly from the various stations. (You can do the same thing for contemporary artists, too.) There are occasional short commercials on Pandora, which I don’t particularly like but don’t particularly mind either.

When I ride the exercycle, I like to listen to classic rock and alternative rock. For this type of music, I prefer the I Heart Radio application, which has a directory of radio stations from around the country, organized by genre. I have assembled a group of favorite stations that I regularly listen to. The directory also includes a number of commercial free stations as well, which I particularly like. One cool feature of this application is that you can touch the icon for any particular station and a bubble will appear above the station showing  the title and artist of the song playing on the station at that moment. This feature allows you to quickly move between songs and stations to hear the music you want to hear.

Sports: Some of the best applications I have found are sports-related. I should add that one of my goals in getting the iPad in the first place was to be able to watch sports on the road while I am traveling. I particularly hoped to be able to have access to European soccer. The good news is that there are some terrific sports applications out there.

By far the best application available for the iPad in my humble opinion is the Watch ESPN app. Not only does the app allow you to watch the various ESPN channels live, but it also provides live programming that the usual ESPN cable service line up doesn’t include. (The service is free but in order to access it, you have to subscribe to a participating cable service.)

The best part of the Watch ESPN app is a feature that you might not even find unless you were looking for it. On the page for ESPN Channel 3, there is a “Replay” tab, where all of the accumulated ESPN sports event broadcasts are archived. The archive operates real time, so as soon as a program has concluded, it is available in the archive. The archive includes ESPN programming from around the world, and so the list of replays available is exponentially greater than the small handful of games and shows you might be able to watch on the ESPN channels on your TV.

The programming available using the Replay tab is incredibly diverse, and pertinent to my purposes, includes a wealth of European soccer games. (It also includes, for example, Rugby, Cricket, European Hockey, Polo, and many other sports as well.) I am able to follow and watch complete games from all of the top European soccer leagues, including the Premier League, La Liga, Serie A, Eredivisie, the Bundesliga, and Ligue 1. The replays also include some Euro 2012 qualifying games and some UEFA Champions League games, usually the ones that I want to see anyway. Some international friendly competitions are also included. Though these games are not shown live, given the time difference between Europe and the US, I would rarely be able to watch these games live anyway. The ability to watch these complete games in crystal clear quality – and for free – is absolutely fantastic.

There are some other apps that are particularly good for following European soccer. The Fox Soccer 2Go application allows you to watch short, same-day highlight videos of all of the English Premier League games, and some other European leagues as well. The video highlights also include same-day UEFA Champions league games and Euro 2010 qualifiers. Fox Soccer also has a fee-service that allows you to access live game day broadcasts of many European league games, but the monthly $19.99 access fee violates all of my cheapskate principles.

Another site I can recommend for following European soccer is actually available only through a conventional web browser, not as an iPad application, but the site is formatted so that it performs well on the iPad. The site is GOL TV, the Spanish-language soccer network. The site hosts game day video highlights of a number of the European leagues, including some (like the Portuguese league) that ESPN and Fox Soccer don’t follow as closely. The site’s video replay function has a full-screen feature that adapts particularly well to the iPad.

One of the most remarkable applications I have discovered – and the only one for which I have been willing to pay more than a nominal fee – is the Sling Player app. This app must be used in conjunction with the Slingbox, which is a device that attaches to your TV set top cable box. The Slingbox takes your cable TV signal and makes it available on the Internet, so that you can watch television on any Internet-connected device. (A tip of the hat here to my friend Rick Bortnick, who is the one who first told me about Slingbox.)

Using the SlingPlayer application, I can now watch “my TV” on my iPad, anywhere in the world. Say, I am stuck in an airport on a flight delay; I can watch any basketball, or football, or whatever game that is showing on my TV. Or, as I did during a flight delay on Monday, I can watch a replay of “The Hangover,” sitting at the gate waiting for my flight to board.

The idea that you don’t need a TV to watch TV is absolutely fantastic. This is one of the things I was thinking of when I said at the outset of this post that I have made a quantum leap in technology utilization. The lines between devices and functions have been reduced to the point of meaninglessness. And for anybody who is thinking, geez, I could do all that with my laptop, all I can say is you are not visualizing the ease of use and flexibility of the iPad (for example, its instant on/instant off capability, and the absence of any need for an operating system and all of your programs to load before you can even use the device).

Cool Apps: Finally there are some apps that are just cool. Trying to list them all here would be impossible. I have included just four here, really by way of illustration, and as part of the invitation to others to share their favorite apps with me and with other readers:  National Geographic World Atlas: Provides access to an entire library of maps (worth the $1.99 charge); Marvel Comics: Yes, you can use your iPad to read Shakespeare, but isn’t it cool that you can also use it to read comics (for free!): Epicurious: Access over 30,000 recipes displayed in a beautiful format; Google Translate: provides translations for over 60 languages, including spoken translations for many languages.

So I have been happy to share my favorite applications here; I hope readers out there with their own favorite apps will share them with me and with the rest of The D&O Diary community using the comment feature. I have to go now, there’s a game on….

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Did you go to bed in the Seventh Inning when Adrian Beltre and Nelson Cruz hit back to back jacks for the Rangers and the Rangers also added an additional insurance run to go up 7-4 in the Seventh Inning?

Did you go to bed  in the Eighth Inning when Mike Adams of the Rangers retired Rafael Furcal with the bases loaded and the score 7-5?

Did you go to bed in the 10^th Inning when Josh Hamilton hit a two run shot to put the Rangers up 9-7?

Did you think when the Cardinals were down to their last strike – their last strike – in both the ninth and tenth innings that the game was over? Or even worse, were you one of those baseball purists who thought this was a boring World Series and so you missed the whole thing?

Too bad if you missed this game. This game was a classic and will be remembered forever as one of the great World Series games. And when hometown hero David Freese hit the game winning walk off home run on a 3-2 pitch in the bottom of the 11^th inning to send the Series to Game Seven, those of us who were still awake – who were rewarded for our belief that if we kept watching amazing things would keep happening – we saw one of the most astonishing clutch performances of all times. Not once, but several times.

Just to put this in perspective. Down 7-4 in the Seventh, the Cardinals scored in the Eighth (to make it 7-5), in the Ninth (to make it 7-7), in the Tenth (to come back to tie it 9-9 after Josh Hamilton’s two-run homer in the top of the inning had put the Rangers ahead, 9-7) and in the Eleventh (when David Freese hit a homer to straight-away center field to win the game, 10-9).

David Freese not only hit the game winner in the Eleventh Inning, but in the bottom of the Ninth, and when down to his last strike, he also hit a game tying two run triple. And in the bottom of the Tenth, Lance Berkman, grey beard and all, and also down to his last strike, hit a bullet into right center to tie the game yet again.

How many ties? How many lead changes? How many times when it looked like the Rangers had this game put away? So much more to talk about. Like pitcher Kyle Lohse, who came in to pinch hit for the Cardinals in the Tenth Inning because Tony LaRussa was completely out of bench position players, and who executed an absolutely perfect bunt in the teeth of the wheel play to put runners on second and third. Yes, there were a ton of errors early in the game. But still and all, this was October baseball at its finest.

Is there anything better than a World Series that goes to seven games?

One final thought. I have always wanted to be a major league baseball player. Rangers pitcher Derek Holland has always wanted a moustache. I would say we are dead even.

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Everyone here at The D&O Diary is very proud that this blog has been named as one of the LexisNexis Top 25 Business Law Blogs for 2011 by the LexisNexis Corporate & Securities Law Community. The complete list of this year’s designees can be found here.

We are flattered and honored that our blog has been named to this list. It is a particular pleasure to be associated with the other fine blogs on the list, which includes many of the blogs that we regularly follow, such as  Broc Romanek’s TheCorporateCounsel.net blog, Francis Pileggi’s Delaware Corporate and Commercial Litigation Blog, Mike Kohler’s  FCPA Professor blog, Tom Gorman’s SEC Actions blog, The Corporate Library’s GMI blog, and the Conglomerate blog and the Race to the Bottom blog, both of which are written by teams of law school professors.

The voting process is not over yet. There is another round of voting yet to decide the Top Business Law Blog of the Year. In order to vote you have to be a registered member of the LexisNexis Corporate & Securities Law Community. The links to register and to vote can be found on the Community site, here. Please take a moment to vote for your favorite Business Law blog (particularly if your favorite happens to be The D&O Diary).

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I inhabit a world in which hotels loom unfortunately large. During many work weeks, I spend more nights in hotels than at home. Many of these hotel nights involve nondescript rooms in cookie-cutter chain hotels. These chain hotels are neither good nor bad, merely boring. They are so lacking in distinctiveness that often I am unable even to remember where I am when I first wake.

Fortunately for me, there are hotels I enjoy and that I even look forward to visiting. The purpose of this post is to share my list of favorite hotels, ranked according to my own admittedly quirky criteria. My hope is that readers will respond and offer their own favorite hotels, as a way to share information with others and perhaps enrich each others’ travel experiences.

Let my begin by relating an experience that sums up what I dislike about so many hotels, while at the same time identifying my hotel ranking criteria. Due to a weather-related flight cancellation, I recently spent an unplanned night in Philadelphia. Many other travelers were in the same fix, and so hotel rooms were scarce. Just at the point when I began to fear I would spend the night in the airport, I managed to find a room – at the Ritz-Carlton. For those of you who are thinking “Sweet!” --let me relate what I experienced.

First of all, the hotel stay itself cost over $550. What do you get for $550? You get a cavernous atrium echoing with over-amplified rock music that made it impossible to hear or to be heard. You get a hotel room bathroom with enough marble for the mausoleum of an eastern potentate and his entire entourage. And you get a bed with 13 pillows. I don’t need or even want any of those things.

But wait – there’s more.

When I tried to check in, I found myself in a line behind six other people also hoping to speak to the beleaguered clerk behind the desk. When I had finally been able to check in, I went to my room and found out that for $550, I earned the privilege of paying another $9.95 for Internet access. I also found that my room lacked a TV remote control. When I called about that, they brought me one, held together by duct tape. And when I went to check out next morning, there was no one at the reception desk.

To summarize, the hotel was ridiculously over-priced (particularly given the added Internet charge) and featured a lot of pointless and even worthless “amenities.” The overall effort reflected poor execution.  The experience was a total disappointment.

Let me contrast that with my all-time favorite hotel, the Base2Stay Hotel in London (pictured above). This small hotel is clean, quiet and inexpensive. The rooms and common areas are decorated in a simple Scandinavian style, which though perhaps austere to the point of severity, are practical and efficient. The location may not be fashionable, but it is functional – it is located a block from the Earl’s Court tube stop, on the Piccadilly Line (which also serves Heathrow), in an area with pubs, shops and cafes, and on a quiet street full of school kids and Moms pushing prams. The people who work at the hotel are friendly and helpful.

To be sure, many Americans would find the rooms small, perhaps too small. Personally, I find them a wonder of efficiency, the hotel room equivalent of a Swiss Army knife. They manage to include a small kitchenette (with refrigerator), an ultramodern bathroom with all sorts of nifty plumbing fixtures, and a satellite cable connection with a global TV channel selection and music. Oh, and by the way, a single occupancy room runs around £105 a night – including Internet access at no additional charge.

This hotel hits all of my important criteria. It is clean, quiet and inexpensive. It is in a convenient location. It includes everything that is indispensable but avoids pointless amenities that add only to the cost but not to the overall experience. And it has its own distinct charm and character.

Many of the hotels on my list of favorites and that meet these criteria are in Europe. This preference isn’t the product of some snooty Europhilic distemper. Rather, it is due to the fact that when I travel to Europe I am unwilling to pay a premium to stay at a hotel that lacks charm, character and distinctiveness. Both to keep costs down and to improve my travel experience, I am willing to go further afield. With TripAdvisor.com as my guide, I have had some terrific experiences.

My most recent discovery was the hotel in which I stayed in Amsterdam. (More about my Amsterdam travels here.) I was fortunate enough to stay in the Citizen M Hotel, a “concept hotel” located on Beethovenstraat in a quiet, leafy residential area on one of the main tram lines. The hotel is a way station for a surprisingly cosmopolitan clientele. The hotel is ultra modern, with simple décor, complicated lighting fixtures and a lobby full of flat screen TVs. All of the rooms and common areas are WiFi enabled (at no additional charge). The ground floor is built around a bar/lounge where people actually do congregate and converse for breakfast in the morning and for cocktails in the afternoon. The rooms themselves are small but efficient, with very space age-y plumbing fixtures. The beds are enormous. And the wall phone was Skype enabled. I made a bunch of International phone calls and the charges didn’t even amount to a euro. And the best part of all is that a single occupancy room costs around €95 a night.

Another favorite European hotel is the small hotel in which I stay while in Cologne, the Domstern. The hotel is just a few blocks from the central train station, but it is on the opposite side of the station from the Cathedral and the main tourist areas, so it is quiet. The rooms and the common areas are decorated in basic Ikea. The hotel is quiet and clean. The rooms have a pan-European cable connection and the fastest Internet connection I have ever had in any hotel anywhere. But the thing that sets this hotel apart is the breakfast service, which is included in the cost of the room. The menu includes fresh breads and pastries; homemade jams, jellies and honey; meats, sausages and cheeses; fresh fruit and various kinds of yogurt; and excellent coffee. I would travel hours to stay in this hotel just for the breakfast. And the best part of all is that a single room runs only about €60 a night.

My favorite hotel in Paris is the Hotel de Fleurie, which is located in the Sixth Arrondissement, just a block off of the Boulevard St. Germain des Pres. Even though it is in a very lively area, the hotel itself is quiet, because it is on a one-block long one-way street that doesn’t really go anywhere. The hotel is located in a restored 18^th century building and the rooms are charming and comfortably decorated. The location is about perfect – it is just a block from the Odeon metro stop and a short walk from the Jardin de Luxembourg. The Seine River, Notre Dame Cathedral and the Louvre are all within walking distance. Breakfast is included in the room charge, and features freshly baked breads and excellent coffee. The rooms and common areas have ultrazippy WiFi service (at no additional charge). This hotel is more upscale than the others, but a single room runs only about €120 a night.

I have other European hotels I particularly like, but the others are sufficiently quirky that I hesitate to go too far overboard about them here.

Because of the predominance in the U.S. of the chain hotels, it is a challenge trying to find hotels that are both inexpensive and charming. There are of course innumerable bed and breakfasts, many of which are quite wonderful. The best ones tend to be out in the country or in locations that are not always well suited to my business purposes and requirements. They also tend to be too frou-frou and Laura Ashley-ish for my tastes. There are a few bed and breakfasts that I have been able to enjoy on business travel, including the White Swan Inn in San Francisco. Readers’ suggestions in this category are welcome, particularly for inns that provide the indispensable combination of lower cost, charming environment, and functional location.

One U.S. chain that I am happy to patronize is Club Quarters. I have stayed in Club Quarters hotels in New York, Philadelphia, Chicago and San Francisco. The rooms in these hotels are small and ascetic. (The first time I stayed in one, I was sure the room had been designed by an architect whose prior assignment had been designing airplane lavatories.) But the hotels are clean and quiet and they tend to be in very useful locations – for example, the Chicago hotel is in the Loop near Wacker Drive, the Philadelphia Hotel is on Chestnut, the New York hotel is mid-town, and the San Francisco hotel is in the financial district adjacent to the Embarcadero. The room charge includes Internet access, and most of the hotels have exercise facilities. These hotels are functional, not charming. But the room charges run significantly less than other business hotels located nearby.

Not all of my favorite U.S. hotels are austere. For example, my favorite hotel in Denver is the Oxford Hotel, which is a beautifully restored 19th century hotel located in the renovated Lower Downtown area. The rooms in the hotel have fine period-piece furniture. Hotel guests have access to a great nearby health club, and the area around the hotel, which is just blocks from Coors Field, is full of bars, book shops, cafes and restaurants.

In Washington, my favorite hotel is the Georgetown Inn. It is on Wisconsin Avenue, just a few blocks north of M Street, in Georgetown. When I visit Washington, I try to set up my meetings in the hotel restaurant, The Daily Grill, or at my favorite bar in DC, Martin’s Tavern, which is just a block away. The rooms in this hotel have a comfortable, old-fashioned feel. The best part is the access the hotel affords to the residential area of Georgetown.

One of my favorite hotels to visit is the Claremont Hotel, located in the hills of Berkeley, California. Admittedly, this hotel is by no means a bargain hotel. It is more of a resort destination, with one of the best health clubs and fitness centers of any hotel I have every stayed in. The décor is early 20th century country club. (Indeed, the look and feel is very similar to the clubhouse of my home golf course.) On a clear day, the views of the bay and of San Francisco are fantastic.

I could go on and on (perhaps unfortunately so, as it bespeaks my itinerant lifestyle), but for purposes of this post and for today, that is my list of hotels. I don’t feel nearly as passionate about my U.S. recommendations as I do about my European ones, in part because I have had far less success in the U.S. finding inexpensive, charming hotels in useful locations. I hope readers will respond with their favorite hotels, particularly if you have suggestions of great, inexpensive places to stay in the U.S.

I will freely admit that a big factor in many of my assessments may have been random good or bad experiences. For example, I am sure I just caught the Ritz-Carlton in Philadelphia on a bad night. I may have had an unusually fortunate experience at some of the hotels I have recommended. I certainly can’t ensure that others visiting those hotels will enjoy them as much as I did. But on the other hand, I find the hotel reviews on TripAdvisor.com remarkably accurate, which sugests that random hotel experiences often are representative.

I hope many readers will use the Comment feature of this blog to share with other readers their favorite hotels – or for that matter, their worst hotels, that is useful information too.

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The D&O Diary is on assignment in Europe this week. The first stop on the Continental itinerary was Amsterdam.I had never been to Amsterdam before, but I have traveled to Northern Europe quite a bit, so when I packed I made sure to load up on sweatshirts and a fleece. And an umbrella. As it turned out, I could have used some shorts and a tee shirt. The weather was absolutely gorgeous, with temperatures in the upper 70s and not a cloud in the sky. I don’t know what Amsterdam is like the rest of the year, but in early October it is spectacular.

Here’s the single most important thing about Amsterdam -- bicycles rule. Bicycles outnumber people. Bicycles are  the prevailing physical force and predominant spirit. The bicyclists ride without regard for public order or their personal safety. The Dutch bicyclists seem to think that a bike ride is a good time to catch up with their friends, as almost every cyclist is talking on their cell phone. Or texting, using both hands. The prize-winning multitasking bicyclist I saw was a young mother, riding along with her kid straddling the back fender, talking on her cell phone and smoking. And wearing sun glasses. At night.

I saw a one-legged policeman riding a bike. I saw a guy cruising along on his Schwinn, with a beagle draped across his shoulders, its ears and tongue flapping in the breeze. I saw another woman, who apparently had never thought of wearing her dog, who was pedaling along with her terrier trotting, well, doggedly, along beside her. She was talking on her cell phone of course. (Her dog must have left his cell phone at home.) I also saw a very large black man riding a bike wearing only an orange wig and what looked like women’s panties. He lacked only a beagle to complete his ensemble.

It turns out, there actually is a dam in Amsterdam. Or there was, on the Amstel River. Now it is just a big public square adjacent to the Royal Palace, full of street musicians and American college kids on their semester abroad, learning about Dutch culture by smoking pot. (Legally! What a novelty!). Informed sources advise that the town originally was called Aemstelerdam, and somehow it became Amsterdam rather than Amsteldam. 

It also turns out that in Amsterdam, the natives speak Dutch, which sort of sounds like German and English being spoken simultaneously.  I don’t speak Dutch, but Ich spreche ein bisschen Deutsch, so I tried to a few words of my best Berlitz German. I got a look as if I were from Mars. (No, Cleveland actually).  The funniest thing I heard was when some young Dutch toughs tried to Talk American: “Yo, Joe, you bin kommen from da hoood?” (accompanied by gang member hand signs, performed with a Dutch accent).

I understand there are many fine museums in Amsterdam. I didn’t visit any of them. The weather was so glorious that I spent the better part of Saturday afternoon inVondelpark, which is sort of like Central Park but without the roads or the surrounding tall buildings. While I was in the park, I was exposed to something so unexpected that I will remember it even after I am dead. I was walking along admiring the fall foliage, when I was distracted by a young woman bending over and apparently looking for something on the ground. Though I was in Amsterdam, I immediately thought of the childhood rhyme, “I see England, I see France” – except she wasn’t wearing any underpants. I spontaneously blurted something improbably ascribing divine qualities to excrement. I wonder whether the guy with the wig misappropriated her panties?

(I wanted to insert a joke here about a “Dutch treat” but I couldn’t quite work it out. You get the point.)

On a warm fall evening, Amsterdam is a rocking place. Party Central is Leidseplein, which is an open area ringed with bars and cafes and full of American college kids learning about Dutch culture by studying the dynamic relationship between numbers of euros and liters of beer. (Turns out, they are directly proportionate, as is the case with dollars and ounces.) The kids were also texting, perhaps to their parents (“Please send money,” which translated from the vernacular means “Beer is expensive here.”) There was one street musician there who did a fantastic impression of Joe Cocker. While the faux Joe was singing, a man in a cow suit walked up and started dancing along to the music. He also performed a fairly impressive moonwalk.

A Moonwalking Man Cow – that was pretty special, but what happened next was truly awesome. Nine guys gathered in a semicircle and starting singing “Country Road,” a capella. When they reached the part about “West Virginia, Mountain Mama,” several hundred people gathered in the square spontaneously joined in. It was so cool it gave me goosebumps.  

The most distinctive feature of Amsterdam is its canals. The canals form a semicircle around the center city, and are lined with classic seventeenth century houses with their ornate four-story facades. The Canal District represents the distilled essence of civilized urban living. On a beautiful fall day, walking along the canals is a calm, peaceful, even sublime experience.

I found myself contemplating the vast Dutch trade armadas that gathered the wealth that built all of those beautiful houses. It is pretty amazing that a country about as big as Massachusetts became a global power for a time. But while the Dutch were clever enough to build an empire, they were not strong enough to keep it. So what is left now are a whole bunch on Indonesian restaurants and a museum city of beautiful houses. Sort of like Venice. Or when you come right down to it, sort of like Madrid. Or Paris. Or London, for that matter. Or, when you come right down to it, Rome. Or for that matter, Egypt.

There are innumerable cross streets spanning the canals on gently curving bridges. At many of the corners where the cross streets and the canals meet there are cafes and coffee shops.  If I could drop one moment in amber and have it with me always to warm my spirits when the January winds howl, it would be 4 o’clock on Saturday at a sidewalk café overlooking the Princengracht (Princes’ Canal). A nearby church rang the hour by chiming out the first few bars of Bach’s Passacaglia and Fugue in C Minor. It might have been the glass of Grolsch I was enjoying at that moment, but the warm sunlit glow – and the gentle voices of all of those cute Dutch people speaking German and English at the same time (perhaps discussing their underwear, or lack thereof) – will be something I will treasure for a long time.

On Sunday, I decided it was time to step off the sidelines and jump into the fray. I went out and rented a bicycle. Within the first minutes, I realized what an idiot I had been walking around the city the prior day. The only way to see Amsterdam is on a bicycle (sort of like the only way to see Los Angeles is in a car.) The other thing I quickly figured out is that Amsterdam is basically flat, so once you get rolling, you can just cruise, as long as you watch out for crazed people on motor scooters. After just a short time, I had an urge to make a cell phone call. Clearly I had tapped into the essential zeitgeist.

I biked along for more than six hours. I rode out in the suburbs. I pedaled along the Amstel River. I went out to the waterfront and rode along the docklands. What I found there was as deeply disturbing as the Canal District was uplifting. Over the past several years, developers have invested hundreds of millions of euros building a new residential area along the shipping canal. The area, called Oosterdokseiland, is as ugly and sterile and empty and dispiriting of a place as I have ever seen. Row upon row upon row of featureless, dead buildings. I have been in livelier cemeteries. The area is the exact urban opposite of the Canal District. I can understand the Dutch people wanting to move beyond their past, but how could they have completely forgotten everything they learned, especially when the best of it is so close at hand? Understand, this isn’t some urban renewal project for people with nowhere else to go, this is a very high end residential real estate development. I decided that the thousands of poor souls condemned by unforgivably poor judgment to live there are like the prisoners on Alcatraz, so close to paradise that you can see it and hear it, but living in hell just the same, with no one to blame but themselves.  

Fortunately for me, I could just turn around and head back to the warm, human, vibrant center of a real city – a city that is what a city was meant to be. After I returned my bike, I was thirsty and hungry, so I sat right down at the restaurant next to the bike shop. I had a plate of gnocchi in olive oil and a glass of wine. While I was eating, there was a sort of family reunion going on at the next tables. There was one group of six young men in their late 20s. At the next table, were several older men and women, obviously the parents of the men. Running between the tables were a bunch of little blond kids, flittering around like a flock of birds. It was obvious everyone knew and loved everyone else. (I have no idea where the children’s mothers were, but it didn’t seem to matter.) I thought to myself, this is what cities are for, for people to come together and to celebrate a warm sunny fall afternoon with a bottle of wine in the kindly glow of the brotherhood of man.

Amsterdam, I hereby apply for honorary citizenship. If I go back, I hope to see more of that attractive young woman in the park. Wait a minute, I already did. All the more reason to hurry back.

Disclaimer: For those readers whose only thoughts about Amsterdam are that pot and prostitution are legal there, let me just say that I did not visit the red light district or go in a smoke shop. Mrs. D&O Diary would staple my private parts to the back fence if I so much as thought of doing either of those things.

The Dutch, these are my people.

The Amstel River, still only 90 calories

The classic Amsterdam bicycle (rental version)

The essence of Amsterdam, bicycles and canals

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Three minutes. That’s how long it was between the dramatic moment that clutch Baltimore Oriole hitter Robert Andino drove in Nolan Reimold from second base, bringing about the victory of the Baltimore Orioles over the hapless Boston Red Sox, and the dramatic moment just seconds later that Evan Longorio hit a home run to push the Tampa Bay Rays to victory over the New York Yankees. In that small interval, the Red Sox were knocked out of the playoffs and Tampa Bay secured their spot in the post season.

Let’s recap. On September 3, the Rays were down nine games in the wild card chase to the Red Sox. The Red Sox then proceeded to plumb previously unexplored depths of futility during the month of September.  And Tampa Bay found ways to win, to bring their wild card chase with the Red Sox to an absolute dead heat going into last night’s games.

As if that were not enough, the Rays were down by seven runs in the eighth inning last night in their last game of the regular season, in a must-win game against the Yankees. The Rays scored six runs in the eighth inning, to bring the game to 7-6. But in the bottom of the ninth, when the Rays were down to their absolute last strike, pinch hitter Dan Johnson smacked a game-tying home run, sending the games into extra innings. And then in the bottom of the 12h inning, Evan Longoria (who had hit a three-run home run in the eighth inning) pulled a fastball over the short porch in left field to win the game for the Rays.

The Red Sox, at least theoretically, should have been in position to force an extra playoff game, despite the Rays’ victory. After all, the Red Sox were winning their game against the Orioles last night by a score of 3-2 with two outs in the bottom of the Ninth Inning. Even if Tampa Bay won their game against the Yanks, Boston should have been in a position to live to see another day, as long as they held on to their 3-2 lead. Alas, it was not meant to be. Moments before Longoria’s dramatic walk-off home run, and when the Baltimore Orioles were down to their last out in the bottom of the Ninth inning and were trailing 3-2  and facing Boston closer extraordinaire Jonathan Papelbon, the Orioles came back to tie and then to win the game.

With all due apologies to my friends in the Red Sox Nation, if you are a baseball fan with a pulse, this was one of the most exciting baseball evenings of all times. The ESPN Sportscenter guys were at a loss for words, and that is saying something. I should have gone to bed hours ago, and here I am blogging about absolutely astonishing post-Midnight baseball that I absolutely should not have been awake to see. After all, I have a blog, I have a job, I have responsibilities – why in the world did I keep watching? Because It was great, it was great, it was awesome, that’s why, and I suspect squadrons of (baseball fan) readers did too. Wasn’t it awesome? Well, yes, it was awesome.

I mean no disrespect to anyone, but for those of us who root for small market teams, this is about as good as it possibly can get. A massive payroll team goes down in flames, while a small market team overcomes adversity (and beats the Yankees! How great is that!) to knock an arrogant, smug big market team (again, all due apologies to Boston fans) out of the post-season. (Just as an aside, how did Boston, of all teams, with all of the Curse of the Bambino stuff, become so arrogant? I don’t know, but they managed to do it.) Hooray for the Rays, Hooray for the Orioles.

The vast majority of baseball fans, owing to the fact that there are so freaking many of them living in big cities on the Eastern Seaboard, thought last year’s World Series was an abomination. Too bad for all of the East Coast elitists—if what you care about is baseball it was a GREAT World Series.  I love baseball, and I loved every game of last year’s World Series. And I have a feeling I am going to love this year’s World Series too.

So with all due respect to all of those people that think it isn’t real baseball unless one of the Big Market East Coast teams makes it into the World Series, I just want to go on record by saying that a Detroit Tigers/ Milwaukee Brewers series would be an awesome contest between two very well matched teams. Small market teams rule, Big Market teams drool (and Big Market teams are so obnoxiously arrogant that every right- thinking person everywhere is rooting strenuously against them.) 

And by the way, the single greatest artistic creation of the Twentieth Century was the musical, “Damn Yankees,” based as it was on the premise that the Washington Senators should win the World Series – and the Yankees should not.

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In a few days I will celebrate the fifth anniversary of the day I published my first post on this blog.  I had no idea what was going to follow after that first post, but having come so far after so long, it seemed appropriate on this occasion to reflect on the enterprise. It has been an interesting, unexpected, and ultimately rewarding experience.

In May 2006, I was still in the early stages of my current job. The phone had not yet started to ring, so to fill my time I started fooling around with the Blogger application on Google. I launched The D&O Diary with little planning and no expectation that it would amount to anything. That first step pretty much characterizes the approach I have taken all along since that first post – I just keep putting one foot in front of the other and I wait to see where the path will take me.

The timing of my blog launch was fortunate, as it turned out. Shortly after I got the blog set up and organized, the whole options backdating scandal broke. And after that in quick succession came the mortgage meltdown, the credit crisis, Madoff, the wave of bank failures, a host of Supreme Court decisions, Dodd-Frank, and a multitude of other scandals and events large and small.  Many of these developments involve truly terrible news, but they all provided great grist for the blogging mill. Even now, a bunch of Chinese companies are enmeshed in a terrible accounting scandal, which is bad news for them, but quite helpful to me (at least in my blogging capacity).

I have been fortunate in another way, which is that I have acquired a loyal and supportive readership that keeps me supplied (usually with accompanying requests for anonymity) with a steady stream of case decisions, pleadings, news article, books, academic articles, questions, comments and queries. I get my best material from readers, and I could never have kept this project alive without the regular contributions from readers.

I have been even more fortunate to be able to publish guest posts from and interviews with leading attorneys (both plaintiff and defense), academics, and journalists. These individuals’ willingness to publish their articles or comments has added both depth and breadth – not to mention variety – to this site.

And so with all of these fortunate things  going for me, here I am, five years into this crazy experiment, with over 2,000 email subscribers, another 1200 RSS subscribers, and countless other readers who access the blog through one of several aggregation services that pick up my content. The site itself has had over 2.5 million page views. It is fair to say that I didn’t anticipate any of this. The blog’s reach never ceases to amaze me.

From time to time, I get notes from readers with kind words about the blog, which I very much appreciate. (I also get notes with, shall we say, constructive criticism as well). But truthfully, no one gets more out of the blog than I do. It is not just that writing the blog is a regular source of amusement and an avenue of creative expression for me. It is rather that the blog has done so much for me personally and professionally.

First, on the most practical level, maintaining the blog has ensured that I am always up to speed on the latest developments in my field. The blog’s constant content requirements mean that I am aware of and have usually written and thought about  just about everything of importance out there.

Second, and more importantly, the blog has allowed me to form innumerable connections around the world. I have email pen pals on almost every continent (no readers in Antarctica that I know of – yet). I have regular communications with a large number of lawyers, academics, journalists, financial analysts and regulators. I have also formed fast friendships with many of my fellow bloggers, all of whom have been supportive and helpful over the years. These friendships and communications have not only enriched the blog, but they have expanded my own horizons and enhanced my awareness of and appreciation for important trends and developments.

Third, I have the recurring delight of hearing from completely unexpected sources that they have read my blog. Once I was stopped while walking through Times Square by a total stranger who wanted to tell me that he reads my blog every day. Several different times I have had people come up to me in airports to say they recognized me from my blog. (That’s why the picture is up there in the upper right hand corner.) I have even had guys at my golf club comment to me about posts on my blog. And I have to say that is about the last thing I ever expected, that I would get recognition at my country club for, of all things, having a blog.

But the most important thing for me about my blog is that I enjoy doing it. For me, the blog itself is like having my own personal  Fourth Plinth  (pictured above) – that is, I can put anything up there I want. A blog post can take just about any form – it can be a case note, a news report, an editorial, an interview, a book review, a statistical analysis, or anything else that I choose. My imagination is the only limitation.

The ability to imbed pictures, videos and hyperlinks to other sources affords a richness and depth that simply is not possible with the traditional written document. And the ability to publish content immediately means that I can quickly reach out to a vast audience of friends, peers, colleagues and casual readers. I get a big charge every single time I post an item.

All of this comes at a price, however. The actual content posted on the site is the culmination of a lengthy process that can take hours and hours and hours. The hardest step in the process is the first one, which is deciding what to write about. Blog topics are not self-revealing. Occasionally, somebody has sent me something that obviously needs to go up right away. But the rest of the time, blog topics have to be hunted down in the endless ocean of information and conversation that surrounds us all. The search for blogworthy topics is never-ending – the worst part about adding a new post is that at the moment of publication the pressure to find another topic starts all over again.

And the actual blog content is only a small part of the operation. The fact is that I am for all practical purposes in the publishing business. I am not only responsible for content, but I am the copy editor, the fact checker, the proofreader, the typesetter and the art editor. I am the research department, the customer service department, and the subscription department. I am the managing editor, the business manager, and the chief operating officer. With all of these duties, the process of maintaining the blog takes an insane amount of time.

Another problem is that the blog has required me to dwell among the demons of technology. No one would ever believe (except perhaps another blogger) how many weird technological challenges I have had to confront. To cite just one example, one day out of the blue, for no apparent reason and without any warning, our firm’s IT manager changed the IP address of the server on which I housed all of the self-hosted documents to which I had linked on my site. That meant that every single one of the hundreds and hundreds of links on my site to self-hosted documents (pleadings, case decisions, etc.) was broken. I was on suicide watch for several weeks. I eventually repaired the links in the most recent posts but the links in many older posts simply don’t work, and at this point, alas, probably never will again.

Sometimes the blog can feel like a full-time job, but the fact is that my job is my job. And my job is often demanding, stressful and time-consuming. Finding the time, energy and intellectual residue to work on the blog after a long day dealing with my real job can be very difficult at times.

The point I am trying to make is that maintaining a blog is a lot harder than it looks. A blog is a harsh mistress – and she can be a needy and temperamental bitch too.

Just the same, I can’t imagine stopping the blog. When I have my teeth into something I really want to write about, I am fully engaged. I get a great deal of satisfaction out of creating a blog post on a topic that has captured my imagination or sparked my creative energy. And when I hear someone refer to the blog, even to challenge something I have written, I get a huge charge. And so I intend to keep right on blogging, damn the torpedoes.

Even though this project is five years old, there are still a lot of things I want to try to do with the blog. I would like to attract more guest posts, particularly from attorneys, academics and even regulators .I would like to publish a lot more interviews, with practitioners and observers who have an interesting perspective toa dd.   I would like to introduce more international topics, particularly with respect to Asia. I would like to do more book reviews and I would like to include more posts with observations on other topics, like movies, wine and travel.  And wouldn’t it be cool if there was a way to imbed sound on the site? How about smell – maybe a scratch and sniff version. Hmmm…

The one thing I know for sure is that I will have to continue to try new things, because the blogging environment is changing all the time. One way the environment has already changed during the years I have been blogging is the rise of the social networking sites, particularly Twitter and Facebook. These outlets have for many readers occupied the space and time that other media (including blogs) used to inhabit. I also think they have resulted in shortened attention spans. By contrast to these newer media, blogs (especially one like mine) can look slow, bloated and out-of-date. At the same time, I sometimes worry that the constant chatter can be deafening. Or at least numbing. I worry that in that kind of environment, I become one more ditto head in the chattering class choir.

As I said at the outset, one of the great advantages I have had from almost the very beginning is that I have gotten a lot of support from my readers. As I look forward to this blog’s next phase whatever it might be, I could really use some advice. I want to stay (or perhaps, become) relevant. I want to provide content that is useful, interesting and entertaining for my readers.

So as I wind up this retrospective essay, I want to ask everyone to let me know what they would suggest for me to develop this site and make it better. I welcome everyone’s thoughts on possible topics, books I should review, persons I should interview, possible alternative approaches, analyses or formats, anything and everything that could add the content on this site. And in particular, I would really like to encourage anyone who has ever given a thought to submitting a guest post for publication on this site to put their post together and sent it to me any time.

There are many rewarding things about having this blog, and without a doubt one of the best is the sense of community I feel with my readers. When I hit that “publish” button, I know that readers around the world are going to open their emails and click through to the blog and read what I have written. The idea that I have my own little corner of the Internet that thousands of people willingly visit every day is absolutely amazing to me.

Thanks to every one for stopping by during the last five years. I look forward to having you visit again – frequently – in the future.

Finally, I would be remiss is I did not thank my colleagues at OakBridge and at RT Specialty for all of the support they have given me and this project over the years. This thing would never have gotten off the ground without their help and I would never have been able to keep it going without their backing. Thanks for everything, guys.

Prepare Ye, The Harmonic Convergence Approacheth!: : The Cleveland Indians are in first place in the Central Division with the best record in all of baseball. The have won six straight games and thirteen in a row at home. They won their last three games in their final at bats. No one, and I mean absolutely no one, saw any of this coming. (Hello? Hello? Is this thing on? [Tap, tap] Testing, testing, one, two, three...)

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One of the great things about having this blog is that it has brought me into contact with a wide variety of interesting people, among them other bloggers, journalists, academics and writers. Among the interesting people I have come to know is Susan Beck, who is not only a Senior Writer for The American Lawyer, but also, it turns out, a neighbor of mine here in Northeast Ohio.

Over coffee with Susan recently, I decided it would be interesting to interview her for this blog. The fruits of my interview are reproduced below, with my questions in italics.

By way of further background, Susan has worked at the American Lawyer since 1987. She writes feature articles for the magazine (her most recent feature was about the Bratz doll dispute between Mattel and MGA Entertainment). She also writes items for and edits the Am Law Litigation Daily, and she write the weekly Summary Judgment opinion column for the Litigation Daily.

Here is my interview with Susan:

Q.: If you could interview one member of the legal profession, who would it be and why?   

Q.: When you write your book, what is it going to be about?   

Q.: I know you moved back to Cleveland not too long ago after living in San Francisco and New York for many years. How is it being back in Cleveland after living in those other cities?  

 I was surprised by Susan's answer about the book she would write . I had not suspected her of being a writer of fantasy fiction.

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From time to time, readers suggest blog topics to me. I am always interested in the range of topics suggested. Very late at night (or perhaps early in the morning) in the bar at the recent PLUS International Conference in San Antonio, a loyal reader whom I had only just met for the first time suggested that I write a blog post about my favorite business books. Unsurprisingly, it seemed like a good idea then. Surprisingly, it still seemed like a good idea later.

My notion of the books worth recommending may diverge from what the reader had in mind when he made the suggestion. I figure that no one really needs me to suggest the usual fare from the business section at the book store, like, for example, The Smartest Guys in the Room or Liar’s Poker. If those books interest you, by all means, read them.

The problem with the vast run of business books is that they rarely aim for anything higher. To find anything of more lasting value, you must look elsewhere. So my suggested "business" books won’t be found in the business section, and in fact may not necessarily meet anybody’s idea of what constitutes a business book. But these books have more to say about the business of life and the life of business than the more conventional fare. Here are a half- dozen essential books I suggest to anyone looking for something a little more substantial:

The Way We Live Now: Regrettably, the books of Anthony Trollope are not much read these days, perhaps because he was such a prolific writer and not all of his works were equally good. But he wrote several very fine books, including Orley Farm and Doctor Thorne. By far his best novel is The Way We Live Now, a scathing and bitter satire of late 19^th Century English society and morals.

The central character is this vast book is Augustus Melmotte, a foreign financier with an uncertain past who sets all of London society ablaze with his seemingly immense wealth. He schemes to procure actual wealth through an American railroad development project, intending drive up the share prices so he can extract gains at others’ expense.

Melmotte is surrounded by a crowd of witting and unwitting accomplices whose greed, vanity or self-deception allow them to be carried along in the plot, which becomes increasingly complex as the story unfolds. The catalog of characters and sub-plots is rich, thick and entertaining.

No one can turn back time, but there are squadrons of heartbroken investors who might have spared themselves financial tragedy if they had only been first introduced to Melmotte before they met Madoff.

The House of Rothschild: One of the great financial historians of our time is Niall Ferguson, whose book The Ascent of Money makes a compelling case that the development of currency and banking was the indispensible prerequisite for the emergence of modern civilization. But I think Ferguson’s most valuable work is his two-volume history of the rise of the Rothschild banking family. Anyone who wants to understand the rise of modern finance, and also to appreciate the interplay of historical forces and familial ambitions, will be amply rewarded for reading these books.

The story of how the five sons of Meyer Amschel Rothschild went on to establish themselves as the premier bankers in Europe and to become the financiers to the sovereigns across the continent is well-told and instructive. The firm’s inviolable founding principles kept the family establishment together across borders and across generations, as well as through wars and economic crises, and allowed the family to ride the changing tides of history and survive the ever-present anti-Semitism to establish a dynasty more durable (and vastly better financed) than all of the royal houses.

Dombey and Son: The novels of Charles Dickens vividly capture the life of so many late 19^th century British institutions. Given that Dickens wrote in and of a country that has been derided as "a nation of shopkeepers," it is perhaps indispensible that Dickens also captured the life of street level commerce and it is entirely fitting that one of Dickens’ finest novels revolves around a trader and his ambitions for himself and for his firm and family.

Dombey’s huge (and ultimately thwarted) ambitions for his son set the frame for a narrative that races on even as it races away from Dombey’s own ability to trace and track his own interests. His frustrated ambitions leave him aged and bitter, but his ultimate reunion with his estranged daughter, Florence, provide a measure of redemption at the end.

The House of Medici: Before the Rothschilds, before the processes of institutions of finance evolved all of their modern forms, the Medici were the premier banking family in Europe. In later generations, they went on to wed kings and to serve as Popes, but they began as textile traders. Only later, Cosimo de’Medici, transformed the family’s growing banking influence into the foundation of a political dynasty that lasted for generations.

Although the family has a modern reputation for ambition and ruthlessness, their success, at least in its origins, was more mundane. As retold in Christopher Hibbert’s book, The House of Medici, a notable contribution to the family’s success was their early adoption of the double-entry bookkeeping system for keeping track of debits and credits.

And although they amassed great wealth, they were among the most important benefactors of the Italian Renaissance. Among the many artists the family sponsored were Brunelleschi, Michelangelo, Donatello and Fra Angelico. The family’s collection serves as the core of the Uffizi Gallery in Florence.

While the family’s glory and wealth is well remembered, the family’s fortunes ebbed and flowed. Hibbert’s one-volume account captures the travails and misfortunes, which included exile, assassination attempts, and financial declines, as well as the periods of the family’s astonishing ascendancy.

Buddenbrooks: This novel is one of my favorite books, even though it is, admittedly, a total downer. Thomas Mann’s novel, Buddenbrooks, tells the story of four generations of the Buddenbrooks family and its merchant trading business in 19^th century Lubeck. The story  begins at what only later becomes apparent is the family’s high water mark, when old Johann and Frau Counsel Buddenbrooks are enjoying the simple fruits of prosperity while still living over the trading house.

At the book’s center are the struggles and ambitions of the next generation, Thomas Buddenbrooks and his sister Antonie. Thomas takes over the family business, which prospers at first. But then due to the pressure of maintaining the business and living up to society’s and his own expectations, he is ultimately consumed with self-doubt. He finally puts all of his hopes and ambitions in his son, who is more interested in art than business. Antonie, who marries badly in order to serve the family interests, also finds herself unable to find her way and assist her brother.

Although the family’s decline seems preordained, there are many choices along the way that were not inevitable and that could have avoided later disasters. Antonie’s unsustainable devotion to luxury is but one of the weaknesses that leads to her own poor decisions. Thomas’s ill-fated decision to possess a grand house similarly undermines his self-confidence, as the house comes to possess him. The turning away of the subsequent generations from the simplicity and thrifty frugality of the family business’s founder seems to underlie the family’s ultimate decline.

In recommending this book once, I said that "what this book is about is life." It is an epic story of the ebb and flow of family fortunes, the blessings and burdens of prosperity, and the difficult challenges that face all of us as we navigate across the years.

The Meditations of Marcus Aurelius: According to tradition and at least some evidence, the Roman Emperor Marcus Aurelius wrote his Meditations while campaigning against the empire’s many foreign enemies. Marcus composed these brief statements of Stoic philosophy and self-discipline to exhort himself to be a better version of himself.

Marcus recorded his thoughts as a way to examine his own strengths and weaknesses, in order to determine how best he should live. He articulates a strong personal philosophy based on his own responsibility for his own actions as well as the need to maintain equanimity for the things he cannot control, including both the actions of others and (ultimately) death.

The Mediations are fully of many good, noble and thought-provoking statements and ideas that are all the more powerful given that at the time Marcus recorded these thoughts, he was probably the most powerful person on the planet. He writes with simplicity and clarity, and repeatedly calls himself simply to achieve a good life well lived.

In the business of life, we all encounter periods when we too find ourselves compelled to battle enemies who threaten all that we have worked to achieve. To persevere under these circumstances are among life’s great challenges. The thoughts Marcus recorded during his own times of crises are a substantial help and guide. As Marcus wrote, the important thing is to be the best and most noble person you can be: 'The best revenge is not to be like your enemy.'

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Though I have assembled here a list of half-dozen essential books, there undoubtedly are many more books that might be added to this list. I encourage readers to suggest their own candidates by using this blog’s Comment feature. Please take the time to share your own thoughts and suggestions with me and with other readers.

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The LexisNexis Top 25 Business Law Blogs of 2010, as selected by the members of the LexisNexis business law communities, have been announced, and I am pleased and honored to discover that The D&O Diary is among this year’s designees. The LexisNexis announcement, including the list of the 2010 Top 25 Business Law blogs, can be found here.

I am particularly happy to find my blog among the honorees because the list includes so many blogs that I follow and bloggers whose work I respect. I encourage everyone not only to take a look at the list, but also to visit the other sites, particularly those with which you might be unfamiliar.

Readers may note in the LexisNexis announcement that though the Top 25 blogs have been chosen, the voting is not yet finished. The voting for the Top Business Law Blog of 2010 will continue and the winner will be announced on November 5, 2010. I encourage all readers who are also members of a LexisNexis business law community to cast a vote for their favorite business law blog. I would be honored and humbled if anyone should choose to cast a vote for The D&O Diary.

Interested readers who are not familiar with the site may also want to take a look at the LexisNexis Corporate & Securities Law Community, which can be found here. The community site contains a wealth of resources, including links to blog posts and articles, case law and commentary, and podcasts.

My thanks to the members of the LexisNexis business law communities for voting for my site as a Top 25 Business Law Blog, and my congratulations to all of the honorees.

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Last week (of March 29, 2010), I changed the service I use to distribute my email notifications. My hope is that this new email distribution service will provide subscribers with more timely and more reliable email notifications. In order to ensure continued receipt of email notification, subscribers will need to reconfirm their subscription.

On Monday, March 29, 2010, or within a day or two thereafter, all subscribers should have received an email from me at The D&O Diary, with instructions on how to resubscribe. This process should be relatively simple and should involve little more than clicking on al link and entering your email address. Again, all subscribers will need to resubscribe in order to continue to receive email notifications.

As you have probably noticed, I didn't add any new content last week, while these changes were taking place, so the first email notifications from the new service will not appear until this week, of April 5, 2010.

I hope that all will go smoothly and I apologize for any inconvenience this switchover may cause. As always please let me know if you are have any difficulty with the email subscriptions or otherwise.

I look forward to communicating with readers again this week.

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Early in my career when I was doing legal work for London insurers, we communicated with our U.K. clients using telex, a technology that is to communications what smacking clothes on a rock is to cleaning fabric. It seemed a huge leap when we progressed to faxes, even though the pages rolled off of cylindrical drums, producing curling documents covered with indistinct, easily smudged characters.

In our current Internet age with emails and text messages, these obsolete technologies now seem quaint, perhaps (in retrospect only) charming in an old-fashioned way. But as relatively advantageous as the latest tools are, even newer communications and information-sharing tools continue to emerge. At a minimum, these new alternatives already offer important supplements to the existing standard media, and potentially even offer entirely new ways of communicating and exchanging information.

What is Web 2.0?

Most of us have become very comfortable using the Internet tools to retrieve information – for example, using a Google search to locate information or find useful sites. The newly emerging tools, sometimes referred to collectively as the Web 2.0, offer more than just the opportunity to retrieve information – they offer the ability to interact and communicate with the network in general, and with a customized, personal network in particular.

I review and comment on some of these new tools below. As a preliminary matter, I think it is important to draw a theoretical distinction between these other tools and email. When using email, you are limited to communicating with persons whose email addresses you already have in advance, which is fine if you only need or want to communicate with a specific, pre-identified group of persons. These new tools, all of which are essentially free, allow you to communicate more broadly, even to persons you may not know, or at least may not know how to locate. This feature of these tools allows you to reach new audiences and to develop new relationships, as well as to be able gather information a diverse variety of new sources.

The Web 2.0 Tools

Twitter: A cross between blogging and instant messaging, Twitter offers users a way to communicate broadly, using no more than 140 characters. I confess that at first, I just didn’t get Twitter. After signing up and staring at my Twitter home page while nothing happened, Twitter seemed pretty pointless.

However, at the suggestion of Kevin O’Keefe of LexBlog, I began using a Twitter application called TweetDeck. Tweet Deck allows you to monitor a series of columns of "tweets" across your desk top, with a column of constantly updated tweets from the sites you have signed up to follow on the left side of the screen. Additional columns are arranged from left to right across your page relating to additional search topics you are following (for example, "lawsuits" or "securities" or "Madoff"). After using TweetDeck, I now appreciate the Twitter’s potential.

With TweetDeck (or one of several similar applications, such as Twhirl or Twitterific), you can tap into the steady stream of Twitter dialog that is constantly rippling across the Internet.

Twitter simultaneously facilitates several different types of activities. First, it accelerates real time news and information gathering. Most of the major news organizations are on Twitter. For example, I am a Twitter subscriber to a huge number of news sources, such as The New York Times, the Washington Post, the Wall Street Journal, Business Week, the Financial Times, American Lawyer, NPR Money, Reuters, Yahoo News and dozens of other groups. A list of some of the many news organizations on Twitter can be found here. These news outlest are frequently tweeting on subjects that may or may not eventually make their way into published articles. Other tweets have links to articles that have just been posted on their web pages. In addition, many governmental organizations, such as the SEC, Congress and the White House, also are on Twitter. A list of federal government Twitter sites can be found here.

Second, there is an entire parallel universe of bloggers, commentators, observers and other Net-based hunter gatherers who are constantly twittering their insights and comments, many of which might not make their way into full-blown blog posts or articles. This commentariat also reliably "retweets" an incredible variety of articles, links and other tidbits. (The "retweets" are readily identifiable by the prefix "RT" preceding the name of the source site.) It takes time to build up a good list of Twitter sites and sources worth following, but one good starting point is the list of "Twitter Feeds for Securities Counsel" that Bruce Carton of the Securities Docket has developed (here).

Third, Twitter provides a medium for information exchange. Because a Twitter message is essentially broadcast to all of your followers and also available to the wider web through Twitter tools like TweetDeck, you can launch an announcement or post a question and reach an enormous network. For example, I recently spotted a tweet from a journalist looking for information about Canadian securities class actions. We did not know each other, yet his question reached me and I was able to reply to him via Twitter to point him toward a recent post on my blog about Canadian class actions. (Replies can be discerned by the "@" prefix preceding the name of a Twitter site).

Fourth, and perhaps most significantly, Twitter allows you to quickly search for and retrieve tweets on a particular topic, many of which contain links to news articles and other resources. A Twitter search produces a harvest of tweets on the search topic. For example, after the Stanford Financial Group scandal broke, I used the search function to quickly retrieve the tweets about Stanford, many of which had links to sites and sources I would not otherwise have found. I also opened a new TweetDeck category through which to monitor the ongoing Twitter traffic about the Stanford Group.

For insurance professionals, Twitter offers a potential new source of underwriting and claims information. For example, a D&O underwriter could search for tweets about a particular company by doing a search on the company’s name, and the underwriter could then monitor ongoing Twitter traffic relating to the company using a separate Tweet Deck column. For all insurance professionals, the ability to broadcast questions or information offers another way to obtain information. The news site tweets allow anyone to monitor a steady stream of headlines and other information on a real time basis. Twitter also offers a means of announcing company events or publications.

Finally, the ability to develop a group of "followers" and to communicate with them and others using the reply and "retweet" functions provides a way to network and expand professional contacts. The March 7, 2009 Wall Street Journal has an excellent article (here) about how to develop Twitter followers and how to use Twitter to expand your personal network. I have further comments below about using all of these Web 2.0 tools to develop contacts and to network.

The New York Times also had a recent article (here) on the advantages and opportunities of using Twitter. A recent Law.com  article describing the different ways professionals might use Twitter can be found here.

One final note about Twitter. The 140 character limit can be a challenge. Using Twitter can sometimes feel like writing haiku. One way to make the most of the limited number of characters is to reduce a lengthy web address link by translating it into a short web address using a site like TinyURL.com. TweetDeck also has a function to shorten lengthy web address. A list of other useful Twitter pointers can be found here. A useful list of Twitter related tools and applications can be found here.

LinkedIn: LinkedIn is a networking site for professionals that has over 30 million users. As a minimum it is a place to post your resume and contact information, which if nothing else makes it easier for others to find you.

But LinkedIn is all about building connections. By asking others to join your network of connections, you add their names to the group of connections listed on your LinkedIn page. Each new connection allows you the opportunity to browse your new connection’s own network list, as a way to find others to add to your network. I have found this process interesting and it has allowed me to build my network out in unexpected ways. For example some of my connections are industry colleagues, some are contacts in my immediate locality, some are people whom I have just gotten to know who want to build out their own networks.

In addition, there are numerous LinkedIn affinity groups, where persons with similar interests can identify each other and exchange news and information. There are, for example, a host of insurance-related groups. For example, the Professional Liability Underwriting Society (PLUS) has a LinkedIn group (here). So does RIMS (here). There are numerous other insurance groups, and innumerable groups related to other topics as well.

In many ways, LinkedIn it still realizing its full potential, at least for the insurance community. Many of the insurance-related groups, for example, are characterized by a relatively low level of activity. However, I think there is enormous potential in these groups – frankly, one of my motivations in writing this blog post it a desire to spark others’ interest in vitalizing these groups, particularly the PLUS group. I can easily imagine these group sites functioning as community bulletin boards where important information is regularly updated and read by people from throughout the community

But even if LinkedIn may not yet have fully realized its full potential overall, I have personally had several experiences where my LinkedIn presence enabled me to form new and valuable relationships. Among other things, I was recently retained by a private equity firm to consult with them on an information-related project. The private equity firm found me through my LinkedIn site. I have further comments on these kinds of network and contact building possibilities below.

Facebook: For a long time I was skeptical that Facebook offered anything of value to me. I considered it a place where college kids wasted time and posted career-limiting pictures of themselves doing embarrassing or incriminating things. However, a friend who was for many years a Wall Street media analyst and who now teaches at a local university convinced me that I needed to get on Facebook. Among other things, she told me that that over 20 million of Facebook’s 150 million users are over the age of 30, and that the over 30 crowd is by far Facebook’s fastest growing demographic.

Facebook provides another way to establish an Internet presence and to develop or expand a network of contacts. What I have found in a relatively brief foray is that Facebook facilitates a way to reconnect with a lifetime’s worth of acquaintances. The reconnection potential is not only personally rewarding, it is also valuable from a business networking perspective. For example, in recent days I have reconnected with a childhood friend who now, it turns out, is the CFO of a publicly traded company right here in my home state. Another college classmate I found through Facebook is general counsel of a financial services firm; I had not seen him in years, but now we are scheduled to have lunch in a few days.

Facebook also has an astonishing variety of groups and affinity sites. I have already signed onto my undergraduate college alumni site and even a group page for my college fraternity. Some of these groups are larger and more dynamic than the groups on LinkedIn, but the most active groups are more social than many of the LinkedIn groups.

In any event, as with Twitter and LinkedIn, Facebook offers a way to expand your network and develop your business contacts. Some might be concerned that getting active on Facebook might risk mixing social and business contacts in an undesirable way. However, Facebook allows you to create separate friends’ lists, with different privacy settings. That way you can control who sees which of your various Facebook posts.

Are These Tools "Worth It"?

No doubt about it, these tools all have the potential to become time sinkholes. Fooling around with any one of these sites, not to mention all of them at the same time, could easily become a time-consuming exercise in pushing electrons around the Web. Moreover, much of the activity, particularly on Twitter, is not worth the electrons consumed. Some people – perhaps many people – may conclude that these media are just not for them, and they might well be right.

These new tools definitely have their critics. Just this week, Time Magazine ran a story (here) critical of Twitter and the shallowness of many of the messages, and the New York Times ran a story (here) noting privacy concerns associated with Facebook. Certainly, these new communications tools, like any other tool, can be used a variety of ways, some of which that are not beneficent.

My own view is that these tools, used properly, all have valuable potential to provide a way for anyone to expand their network of business contacts and business opportunities. At the same time, the inner paranoid within me that is always present just below the surface is also afraid that if I do not understand and take advantage of these tools, I will be losing a critical step to my competitors, or at least to someone other than me, who will figure out a way to take advantage of these tools, as a result of which I risk falling behind.

My own experience as a blogger also convinces me that the opportunities these tools afford are real. Over the almost three years that I have been blogging, I have had the experience numerous times of meeting someone virtually through my blog, and then having that virtual contact turn into a real relationship, which in turn has led to real opportunities and real projects.

In addition, my blogging experience reinforces for me the potential to use these web-based tools to develop or enhance both a personal brand and a corporate brand. I am based in suburban Cleveland, yet Ithrough my blog I have developed an International audience and a professional profile, because I have been able to exploit the communications potential of the Web. (A more detailed view on my blogging experience can be found in a prior post, here).

The interesting thing to me about Twitter, LinkedIn and Facebook is that they each offer a similar potential to leverage the Web, but in ways that are not only distinct from blogging, but that are also unique to each separate tool. I have already found that the networks I have formed from each of these tools largely do not overlap. Facebook in particular has allowed me to expand my network in directions far different from the other tools.

Every insurance professional knows that we are in a relationship business. Business opportunities come from having contacts. These tools allow a new means to develop the contacts that can raise your profile, enhance your personal brand and expand your opportunities. Moreover, these resources are available from anyone’s desktop and for free.

I am very interested in readers’ thoughts and experiences about these tools. I encourage readers to use this blog’s comment feature to share their own experiences with Web 2.0, whether positive or negative.

I also welcome all readers to join me on LinkedIn by clicking on the LinkedIn button in the right hand margin. I hope readers will consider joining the PLUS group on LinkedIn. I also invite readers to follow me on Twitter, which they can do by clicking here or on the button in the right hand margin above.

Finally, readers who would like a more detailed, multi-media introduction to Web 2.0 should be sure to watch a replay of the February 17, 2009 Securities Docket webcast entitled "Web 2.0: Leveraging New Media to Maximize Your Securities and Compliance Practice," which can be found here. The webcast has additional useful information about the Web 2.0 media discussed above, and in addition has a detailed discussion of how to use RSS feed reader technology gather useful news articles and other information on subject you want to monitor.

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Because of the dramatic events in the financial and credit markets, 2008 will undoubtedly go down in history as a dark and difficult year. 2008 was a challenging year for bloggers, too. So much happened of such significance that trying to find the time to comment and the words to express it all were almost overwhelming blogging challenges.

But dramatic headline events do not always make the best blog posts, because high profile events are exhaustively reported in the mainstream media. The blog posts that stand out in retrospect are those that analyze a specific detail of larger events reported elsewhere; that draw connections between otherwise disparate events; or that highlight developments that otherwise would be lost in the noise.

I have set out below my own list of The D&O Diary’s Top Ten Blog Posts of 2008. I have used a simple standard in determining which posts to include; I listed posts that stand up best to re-reading now. The Top Ten posts are presented chronologically.

1. "CDO Squared" Securities Lawsuit Hits MBIA (January 13, 2008): MBIA is only one of several bond insurers to get caught up in the subprime litigation wave. But the lawsuit against MBIA arose at a time when all of us were still just becoming acquainted with some of the complex financial instruments that have caused so much trouble.

This post attempted to explore the then-unfamiliar CDO-squared instruments, incorporating into the exercise both a detailed study of Warren Buffett’s condemnation of derivative securities as "financial weapons of mass destruction," as well as a reflection of the possible lessons for the current crisis from the near-collapse of Long Term Capital Management ten years earlier.

Little did I suspect at the time how relevant my observations about derivative securities or the lessons of LTCM would become later in 2008. (As an aside, I must note how instructive I found it to reread now all of January 2008’s posts. What an astonishing year 2008 was.)

2. Auction Rate Securities: The Next Subprime Litigation Wave? (February 13, 2008): This post commented on "a developing breakdown in an obscure corner of the credit market involving debt instruments called ‘auction rate securities.’" The post accurately foresaw the coming wave of auction rate securities litigation, which according to my tally involved at least 21 companies in new securities lawsuits during 2008. (My subprime and credit crisis-related litigation tally, which includes auction rate securities litigation, can be found here.)

Litigation involving auction rate securities remained one of the top securities litigation stories throughout 2008 (as reflected here, for example), and the lawsuits were a significant factor in the upsurge in new securities filings in 2008. My complete overview of the 2008 securities filings can be found here.

3. A Single "Toxic" CDO, A Multitude of Subprime Lawsuits (March 9, 2008): So many of 2008’s dramatic events were so large and their effects were so sweeping that they defy easy comprehension. An alternative way to try to understand what happened is to look at a single investment vehicle – in this case, a collateralized debt obligation (CDO) called "Mantoloking" – and examine the difficulties and litigation that has followed in its wake.

The extent and magnitude of the problems from just this one investment structure (among other things, it played a role in Bear Stearns’ demise) helps put some context around the problems now besetting the global financial marketplace.

4. D&O Insurance: Defense Expense and Limits Adequacy (June 2, 2008): Every now and then a set of circumstances come along that helps illustrate one of the perennial problems in D&O insurance. In this instance, the case involved was the criminal prosecution arising from the collapse of Collins & Aikman. The particular problem involved was the possibility that defense costs alone threatened to exhaust the company’s entire $50 million insurance program before the criminal case even went to trial.

As discussed in the post, the increasing possibility that defense costs could deplete or exhaust available insurance undermines traditional notions of limits adequacy and underscores the importance of issues involving program structure as part of the insurance acquisition process.

5. Section 11 Lawsuits: Coming Soon to a State Court Near You (July 21, 2008): One of the more interesting (yet little noted) features of the subprime and credit crisis-related litigation wave has been the frequency with which plaintiffs’ lawyers in reliance on the ’33 Act’s concurrent jurisdiction have chosen to file Section 11 lawsuits in state court rather than federal court.

As I speculated elsewhere (refer here), these state court lawsuits arguably represent an involved form of forum shopping. They also may represent an attempted end run around the PSLRA’s procedural requirements. But whatever the motivation may be, the plaintiffs’ bar has shown a heightened interest in proceeding in state court and have even has some success in opposing removal to federal court.

In the general hubbub of the current financial turmoil, this litigation development has not attracted nearly as much attention as it deserves. The anomalous phenomenon of federal class action litigation going forward – in significant volume – in state court represents a trend that deserves greater attention. As I have noted in this blog post, some "recalibration" may be required.

6. A Closer Look at the Fed’s $85 Billion AIG Bailout (September 17, 2008): Both the significance and consequences of the AIG bailout are still emerging, as reflected in Carol Loomis’s December 24, 2008 Fortune article (here). But in rereading a blog post written in the immediate aftermath of the first announcement of the AIG bailout, it appears that many of the continuing questions were immediately apparent.

7. WaMu: A Thrift Falls in the Forest: (September 28, 2008): It is one measure of the massive scale of this fall’s events that the largest bank failure in U.S. history is almost a footnote to the year’s events. Even though WaMu’s failure may be overshadowed by other events, that does not mean that the event lacks significance. Indeed, many of the consequences of WaMu’s collapse still have yet to emerge.

Moreover, WaMu was only one of 25 bank failures in the U.S. during 2008. Though overshadowed by other more dramatic events, these bank failures portend further difficulties in 2009.

8. More Damn Things to Worry About (September 30, 2008): So many things happened so quickly in September 2008 that we were all left wondering: what else could go wrong? This post embodies sheer frustration we felt at the time and the depth of the concern about what may lie ahead. Many of the specific fears expressed have indeed come to pass. Though written quickly and at a very late hour, the post withstands scrutiny now.

9. Reading the New Buffett Bio (October 8, 2008): In the midst of this Fall’s financial crisis, it was a reassuring pleasure to read about Warren Buffett’s life. I enjoyed Alice Schroeder’s new biography of Buffett, and I enjoyed writing about her book. Writing a book review is something of a departure for this blog, but it stands out perhaps for that very reason. Given everything that was happening at the time, it was a relief just to read a book.

10. The Evolving Credit Crisis Litigation Wave (December 3, 2008): As we head into 2009, it is critically important to understand that as 2008 progressed, not only did the credit crisis itself evolve into something much more extensive and dangerous, but so too did the related litigation wave. In an earlier post (here), I speculated that the litigation wave might have reached an "inflection point." Further lawsuit filings confirmed that the litigation wave has spread beyond the financial sector.

Because this litigation wave is likely to continue to spread in the weeks and months ahead, this development represents an important and noteworthy trend for the New Year.

And Finally: In addition to my favorite blog posts, I also had a favorite video of the year, the viral video Where the Hell is Matt? I not only smile every time I watch this video, I like it a little bit more with each viewing. YouTube reports that the video has been viewed over 16 million times. Matt’s website (here) reports that the video was shot in 42 countries and took 14 months to videotape and edit.

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On November 13, 2008, I participated on a panel at a seminar sponsored by the Pennsylvania Bar Institute in Philadelphia, Pa. The topic of the panel was "Blogging for Lawyers." Appearing with me on the panel was Francis Pileggi, the author of the Delaware Corporate and Commercial Litigation Blog (here). In connection with the panel, I delivered a paper, which is reproduced in a slightly modified form below. Francis has also posted his paper on his blog, which can be accessed here.

I would like to thank Francis for inviting me to participate in this panel, which was a fascinating experience. Clearly, many lawyers (and perhaps others, too) are interested in knowing more about blogging. Here is my paper:

The First Amendment to the U.S. Constitution enshrines freedom "of the press" as one of our nation’s most hallowed rights. Historically, at least, only the few fortunate enough to own a printing press could actually benefit from this constitutional protection.

Until now.

As a result of technological innovation, it is now possible for everyone in effect to have their own printing press in the form of a blog and to publish their views to the entire world via the Internet. This new medium is both powerful and flexible, and represents and extraordinary new means for personal expression, for the exchange of ideas, and for the advancement of economic interests.

The Benefits of Blogging

Perhaps many of the benefits of blogging may seem self-evident, but my own experience has included many unforeseen and unanticipated benefits that have contributed significantly to the overall value of the enterprise.

1. A Larger Stage: As a professional based in suburban Cleveland, I could be susceptible to isolation, obscurity and even irrelevance. The blog not only facilitates a connection with my immediate professional community, but also with a larger national and even international audience, far beyond the relatively narrow scope of my day to day professional activities.

One of the more interesting and gratifying developments from the blog has been the links my blog has enabled me to form with academics, regulators, journalists, and attorneys from an incredibly diverse variety of contexts and jurisdictions. The resulting dialog has not only been intellectually enriching, it has also helped to raise my professional profile far more than any other professional development activity I have ever undertaken.

2. Recognition: Simply by virtue of having a blog on a topic, others assume you are an expert. Whether or not this is actually the case, I have been quoted, as a supposed expert, in national and international publications, including The Wall Street Journal, The New York Times, Bloomberg, The Los Angeles Times, The San Francisco Chronicle, among many others.

I have been invited to speak at or even moderate a wide variety of conferences and other events. I have been asked to lecture at law schools. I have been invited by law firms to speak to their clients. I have been asked by investment banks to share my thoughts about industry trends with their clients. I have been retained by consulting firms, accounting firms and actuarial firms. I have been asked to contribute written work to numerous publications. Virtually all of these opportunities have come my way as a result of the blog.

3. A Voice in the Dialog: In my field as in many others, there is an ongoing dialog about issues and developments. The blog ensures not only that my voice is heard in this ongoing dialog, but it also allows me the means to try to set the agenda. While I would not be so immodest as to claim that the blog has allowed me to be influential, it has at least assured that my voice is heard. Whatever else might be said about my contributions, as a result of the blog, I am not irrelevant, despite being based in Beachwood, Ohio (which, by the way, is a pretty nice place).

4. An Audience is a Great Thing: A blog is a medium of expression. It is also a medium of communication, and many audience members will communicate with a blog’s author. This has proven to be one of the most important parts of my blogging experience, as audience members constantly provide me with ideas, suggestions and questions that have immeasurably enriched my blog. Indeed, I have gotten many of my best ideas from readers and I truly love it when readers communicate with me about my blog.

If there is any downside, it is that it takes time to respond to reader inquiries and comments. I also wish that readers would feel freer to post their comments directly on my blog. It is fine for readers to tell me that they disagree with me, but it would be so much better if they would tell everyone. All of that said, a strong and active readership is one of the important parts and one of the most important benefits of a successful blog.

5. Trend Watching Begets Trend Knowledge: There is an unexpected side-benefit from making a practice of observing, thinking about and commenting on trends and developments. That is, these practices ensure that I am aware of and have thought about all of the latest trends and developments. This has a direct payback for my professional practice, which is that I am fully prepared to speak knowledgeably about most topics that are likely to arise in the typical business setting. This is a substantial asset in many professional and business meetings.

6. The Blogosphere: Another significant benefit from blogging consists of the links I have developed with fellow bloggers. The blogosphere is a congenial and mutually supportive place. Bloggers show each other courtesy and respect. Fellow bloggers helped support and publicize my blog in its early days, and have continued to supply me with information and commentary all along the way. The blogosphere’s conviviality adds a measure of satisfaction and enjoyment to the blogging experience.

The Burdens of Blogging

As a practical matter, just about anything anyone would need to have a successful blog is available for free on the Internet. But even if blogging might be free, that does not mean that it is without its costs. A blog is a harsh mistress, and the demands required ought to be fully considered by anyone contemplating blogging.

1. Time: I am frequently asked how much time I spend on my blog. I usually try to laugh off the question with a joke. The reality is not very funny. I actually spend a lot more time on the blog that I think anyone could possibly imagine. It helps to be a closet insomniac. I spend many, many hours on my blog, hours stolen from time in which I would otherwise be relaxing, enjoying my family, or sleeping. The blog takes an insane amount of time.

2.Blogging is a Lot Harder Than it Looks: I think every blogger starts their blog in a burst of optimism, with a backlog of things they are yearning to express. The early enthusiasm and reservoir of ideas carry the blog for a time. But the real challenge is sustaining the blog after the initial enthusiasm fades and the backlog of ideas is depleted. During the time I have been blogging, there have been many promising new blogs that have dazzlingly burst out, generated truly interesting and impressive content, and then quietly blinked out of existence. Sustaining a blog for the long haul is difficult.

Finding things to write about and finding the time to write them is hard work that requires serious commitment. I have found myself blogging in airports, hotels, coffee shops, beach houses, trains, basements, attics, and spare bedrooms. I have worked on my blog in London, Cologne, Montreal, Quebec City, San Diego, Dallas, Dubuque, Omaha, Tampa, and just about everyplace in between; I have posted blogs from laptops, libraries, Internet Cafes, and hotel business centers, and just about any other location where the Internet can be accessed. I have blogged on my birthday, Christmas Day, my anniversary, on vacation, during the Super Bowl, during rainstorms, during snowstorms, and even on beautiful sunny days.

I think writing a blog is a possibility that everyone ought to consider, but at the same time it should also recognized that not everyone will want to do everything that is required to sustain a blog over time.

3. The Benefits Are Indirect: There may be bloggers whose blogs produce direct economic benefits commensurate with the time and effort required. But for most bloggers, the most identifiable economic benefits are indirect. To be sure, I have developed revenue-producing client contacts directly as a result of the blog. But these developments are the exception, not the rule.

There is of course substantial reputation-enhancing power in having blog. I think the heightened professional profile my blog has helped me to raise will in the long run translate into significant revenue generating opportunities. But others might conclude that there are shorter, more sure-fire paths to business development.

4. Conflicts: A constant blogging concern is remaining sufficiently mindful of the possibility that the views I express on my blog potentially could conflict with the interests of my current or future clients. I try as hard as I can to be circumspect. But I can imagine that this concern about potential conflicts might well discourage some professionals who might otherwise be inclined to blog.

Three Things Potential Bloggers Should Know

1. Technology: It is easy to set up a blog. About two minutes on Blogger.com is enough to get started. But to get a blog set up the way you want and to deal with all of the problems that inevitably arise, a willingness to futz around with technology is indispensible. Fee-based services such as LexBlog reduce – but do not eliminate – the need to directly confront the technological beast. I would not recommend blogging to anyone who is uncomfortable troubleshooting technological issues.

2. The Downside of Owning a Printing Press: I made the analogy above comparing a blog to a printing press. The analogy is far more apt than might appear at first blush. As a blogger, you are in fact in the publishing business. For example, you have subscribers, who will expect you to address delivery problems, subscription questions and complaints, as well as delivery interruption and cancellation issues. Addressing subscriber concerns and questions is an ongoing challenge.

In addition, a blogger has editorial responsibilities. I am frequently called upon to address such issues as faulty or missing hyperlinks, misspellings, and erroneous references. These kinds of concerns can not only be time-consuming, they can also be disheartening. Without editors or fact-checkers, a blogger almost inevitably encounters these kinds of concerns, especially given the time pressure inherent in the blogging medium. Remedying these kinds of concerns is an indispensible but underappreciated part of the blogging process.

3. Plagiarism Happens: I recently participated in a business competition where our team presented directly after one of our competitors. One of the questions the prospect asked in our meeting directly quoted information the competitor had provided to the prospect in the preceding meeting. The information consisted of original research I personally conducted and about which I had written on my blog. I was astonished and appalled not only that a competitor would brazenly plagiarize my original work, but even more astonished that the competitor would even think about attempting to use the information to compete against me.

Call me naïve. I work very hard on my blog to make sure that I credit my sources. Given my own personal practices and standards, the idea that someone would simply plagiarize my work never occurred to me. For the first time, I have experienced serious reservations about the wisdom of sharing my original work with the whole world. I still have misgivings which I have not entirely reconciled. All I can say is that would-be bloggers should be more aware of this issue than I have been.

Conclusion

Some of my remarks here might discourage some potential bloggers. I do not intend to be discouraging, merely realistic. That said, all of the burdens, challenges and concerns notwithstanding, I have found blogging to be enormously satisfying on both a personal and professional level. In the end, while there might be a host of good professional reasons for me to have a blog, I have found the enterprise worthwhile simply because I have found it satisfying. If I didn’t enjoy doing it so much, I wouldn’t do it.

A blog is a wonderful platform for self-expression. The opportunity to express my views knowing they will be read by a wide variety of persons around the world is stimulating and gratifying. I am constantly reminded of the power of the Internet. The idea that I can have my own little corner of the Web that thousands of people voluntarily and repeatedly choose to visit is just so inexpressibly cool. It never ceases to amaze me.

Afterword

Based on the questions at today's seminar, I realize that there many additional topics about blogging that I should attempt to address, beyond the issues I discussed above.  Topics that came up today included: 

How do you get started blogging? 

How is the blogging medium different from mainstream media, and why does it matter? 

How should a busy professional sort, access and use law blogs? 

Time and space do not allow me to address these issues here. But these are all worthy topics, which I hope to try to address in forthcoming posts in the next few weeks.

In the interim, I very much welcome readers questions and comments about blogging. I am very interested in sharing my thoughts and knowing more about readers' thoughts on this topic.

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At what point can we declare that the subprime securities lawsuits are not doing particularly well in the courts? It may not yet be time, but there unquestionably are growing numbers of subprime lawsuits that have failed to survive motions to dismiss, at least as a preliminary matter.

The latest evidence of this phenomenon involves the securities lawsuit filed against Fremont General and certain of its directors and officers. As detailed here, Fremont plaintiffs first initiated the securities suit in June 2007. The 175-page Amended Consolidated Complaint in the case can be found here.

The plaintiffs allege that Fremont, a subprime mortgage lender, misrepresented the "quality of Fremont’s underwriting, loan quality and loan performance," and also that misrepresentations in Fremont’s financial statements "resulted in a material deception of the investing public." It was, the plaintiffs alleged, "only a matter of time before the Company’s extremely loose lending practices – driven by aggressive volume targets and financial incentives – would result in substantially increased mortgage delinquencies and material losses for Fremont investors."

Fremont filed for bankruptcy on July 9, 2008. The securities lawsuit was stayed as to the company but proceeded against the individual defendants. The defendants moved to dismiss the plaintiffs’ complaint.

In an October 28, 2008 order (here), Central District of California Judge Florence-Marie Cooper granted the defendants’ motion to dismiss, but allowed the plaintiffs 45 days in which to file a further amended complaint.

In their motions, the defendants had contended that the plaintiffs had failed to allege sufficient facts to satisfy the material misrepresentation and scienter pleading requirements for a 10b-5 claim.

Judge Cooper began her analysis of the motions with a commentary on the "disjointed nature of the allegations" in the Amended Complaint, noting that "nearly 100 pages" of the pleading "are dedicated to recounting of the history of the company, allegations of flaws in the company’s underwriting practices, and allegations of misstatements in various financial statements." She noted that she had "scoured" the Amended complaint "in an effort to link Lead Plaintiff’s allegations of specific statements with the alleged reason(s) those statements are misleading." She observed that "the internal cross references…fail to substantiate Lead Plaintiffs’ conclusory allegations that the statements were false and, in nearly all cases, they fail to illuminate why or how the falsity was material."

The Court also noted that while the complaint has "numerous references to representations by or knowledge of ‘Defendants’" these references "collectively do not facilitate a reasoned assessment of the statements and knowledge attributable to the Individual Defendants."

Finally, Judge Cooper also noted that "more often than not, the cross-referenced allegations intended to evidence the falsity of the alleged misrepresentations fail to adequately plead scienter in connection with those statements."

Because she concluded that the plaintiffs’ allegations "do not clearly articulate the basis of Lead Plaintiff’s Section 10-b and Rule 10b-5 claims against the Individual Defendants," Judge Cooper granted the motion to dismiss, with leave to amend.

It of course remains to be seen whether the plaintiffs will be able to address the court’s concerns in their amended complaint; to the extent they can, their case may go forward. But though Judge Cooper’s dismissal ruling is merely provisional, it is the latest in a series of similar rulings where courts have proven unreceptive to similar allegations raised against companies caught up in the subprime meltdown.

As I noted in prior posts concerning dismissals in the IMPAC Mortgage case (refer here), NovaStar Financial case (here), the Standard Pacific case (here) and First Florida Home Builders of Florida case (here), courts have proven demanding in their expectations regarding the specificity of the allegations required in the claims against these participants in the subprime marketplace. The courts clearly want to see more than that the companies engaged in aggressive business practices before their residential lending portfolio collapsed.

To be sure, there have been cases in which the plaintiffs’ allegations have proven sufficient to survive a motion to dismiss, as for example in the Toll Brothers case (refer here). But several courts now have made it clear they expect to see more than the existence of a mess left from the subprime meltdown. Generalized allegations that the lending institutions were aggressive or even that they failed to follow their own loan underwriting guidelines apparently may not be enough.

The subprime litigation wave is still in its earliest stages, and for that reason it may be premature to start making any generalizations. Nevertheless, it is at least interesting to note that a growing (and arguably significant) number of the earliest filed subprime securities cases are finding it difficult to survive the preliminary motions. Some of the cases may yet go forward following the amended pleading stage. But at least based on the most recent preliminary rulings, the question does arise whether the general economic turmoil has made courts skeptical of generalized allegations of fraud.

There will of course be further developments in the weeks and months to come. I will be tracking the results on my table of subprime and credit crisis-related case dispositions, which can be accessed here.

Namesake: Fremont General’s name doubtlessly derives from that of John C. Frémont, the 19^th century American explorer, military commander and politician. Frèmont is known as "The Great Pathfinder" for his surveys of the Oregon Trail, the Oregon Territory, the Great Basin, and the Sierra Mountains in California.

Frèmont was one of the two first Senators from California in 1850. Frèmont was also the Republican party’s first candidate for President in 1856 and he was the first major party Presidential candidate to run in opposition to slavery. He had the dubious distinction of losing to James Buchanan. He did at least draw more votes than Millard Fillmore.

Frèmont’s name lives on as the moniker for numerous counties, cities and civic buildings, in California and elsewhere. And, until it went bankrupt earlier this year, there was also a subprime mortgage lender named after him as well.

Observations on the Blogosphere: Congratulations to the Drug & Device Law Blog (here), which is celebrating the second anniversary of its blogging existence. In a post today, the blog’s authors pose this question, with following commentary:

We have a question for someone with access to the data: What percentage of legal bloggers stop publishing within 12 months of launching a new blog?

We don't know the answer to that, but we bet it's like small businesses -- most fail within a year.

Why?

First, as we’ve said before, blogging is hard, hard work. It's not easy to maintain an active legal practice by day and find time at night for massive "recreational" writing. Try writing five or six shorts articles a week (which is what we've averaged) for just one week. Think about what that would feel like for three months. And now imagine what we're celebrating today -- two years cranking out posts at that pace.

The authors are absolutely correct about how difficult it is for a fully occupied professional to maintain a blog over time. The authors supply their own reasons why they continue to blog despite the enormous burdens and effort required. I concur with their views, particularly as respects interaction with the audience and the ability to influence the dialog.

Andrew Sullivan, the author of The Daily Dish blog (here) has a more detailed answer in a November 2008 Atlantic Monthly article entitled "Why I Blog" (here). Sullivan eloquently captures what makes blogging so exhilarating -- and excruciating. He notes that "for bloggers, the deadline is always now. Blogging is therefore to writing what extreme sports are to athletics: more free-form, more accident prone, less formal, more alive. It is, in many ways, writing out loud."

One particularly distinctive aspect of the blogging experience is the immediacy of the connection between author and reader. Readers can (and do) easily post comments or send emails with corrections and criticisms. As a result, Sullivan notes, "the blogger can get away less and afford fewer pretensions of authority." Some of those who send comments, Sullivan adds,

unsurprisingly, know more about a subject than the blogger does. They will send links, stories, and facts, challenging the blogger’s view of the world, sometimes outright refuting it, but more frequently adding context and nuance and complexity to an idea. The role of a blogger is not to defend against this but to embrace it. He is similar in this way to the host of a dinner party. He can provoke discussion or take a position, even passionately, but he also must create an atmosphere in which others want to participate.

As Sullivan notes, this interaction is "an integral part of the blog itself." He is absolutely correct when he observes that "you’d be surprised by what comes unsolicited into the inbox, and how helpful it often is."

But while I agree with Sullivan’s essay on many points, I also think his concept of the blogosphere is peculiarly narrow and as a result his analysis is impoverished. Sullivan apparently presumes that all blogs and blogging lives resemble his own. However, Sullivan inhabits a rarified and privileged corner of the blogosphere, one that only an infinitesimally small number of bloggers enjoy. He is, for example, able to blog full–time. In addition, he has "an assistant and interns to scour the Web for links to stories and photographs." These are assets and advantages about which most bloggers can only fantasize.

Because he is blind to the varieties of blogging experience, Sullivan overlooks the diversity of blogging philosophy and goals that coexist with his own. To use but one very concrete example, his essay completely fails to take account of the numerous excellent law blogs in the blawging community (of which the Drug and Device Law blog is a superb example.)

Were Sullivan to encompass these kinds of blogs in his descriptions, he could not assert that "the blog has remained a superficial medium" or that blog readers are unwilling to read more detailed essays. His blog may be superficial, and his readers may have short little spans of attention, but those characteristics are not universal, either as to blogs or as to blog readers.

Sullivan also seemingly overlooks the challenge and pain (duly noted on the Drug and Device Law blog) that many bloggers experience trying to juggle our blogging addiction with the demands of our day jobs. Though Sullivan’s essay nowhere recognizes these challenges, I am confident that for many working bloggers these elements define the essence of their blogging experience. Bloggers with the luxury of blogging fulltime are spared these challenges.

Some day I will unburden myself of the longer essay on blogging that burns within me. Whenever that day comes, I will attempt to fill some of the critical voids in Sullivan’s essay. The most important point is the role that that blogs can play in a specific professional community -- for the exchange of ideas, for the development of connections, and for the passing events to be noted. Over time, a blog can also become a reference source for an entire industry (a point that the authors of the Drug and Device Law blog also note in their second anniversary post).

Until the day comes when I finally write my own essay on blogging, I will have to let it suffice to quote with approval one remark in Sullivan’s essay, in which he says "there are times, in fact, when a blogger feels less like a writer than an online disk jockey, mixing samples of tunes and generating new melodies through mashups, while making his own music."

Ultimately, as Sullivan writes in explanation of how he got hooked on blogging, "the simple experience of being able to directly broadcast my own words to readers was an exhilarating literary liberation."

Hat tip to the FCPA Blog (here) for the link to Sullivan’s essay.

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After nearly two years publishing at its original site on Blogger, The D & O Diary is proud to move into its new home on LexBlog. I hope that all of my readers will welcome and enjoy the new site’s features. The new site should be easier to navigate, and has some added functionality, such as the ability to print individual posts in a printer friendly format (use the little printer icon at the bottom of the post), and the ease of locating popular posts in the (soon to be populated) "Posts of interest" function in the right hand column.

Email and RSS Feed subscribers who had subscribed to the old site should continue to receive emails or feeds when new posts are added to this site. However, anyone who has any problems should let me know right away and I will try to remedy the situation. Just click on the blue “Contact” link in the right hand column below my picture to send me a message.

Those of you who had Bookmarks or Favorites links to the old site will need to change the link to this site. The address for this site is http://www.dandodiary.com . All of my prior posts will remain available on my old site, but I have also ported all of my prior posts over to this site as well. I will not be adding any new posts to this site.

I look forward to continuing to provide posts of interest on this new site. Please let me know if you have any questions, comments or concerns. Welcome to The New D & O Diary.

Cheers.

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