Month: October 2010

These are some recent compliance-related stories that caught my eye:

Take A Seat, and Other Bribes by Scott Greenfield in Simple Justice

And if you don’t think the FCPA matters to you, who do you think it paying the many millions of dollars forked over to lawyers and government, not to mention the opportunity costs of doing business overseas where only American corporations are subject to a constraint that flies against local culture and custom. Nobody is suggesting that actual bribery is a good thing and should be tolerated. It would be nice if this was pervasive attitude, but regardless, we can hold our corporations to a higher standard. However, the FCPA has put everyday business practices, with no quid pro quo to even the most fertile of young government lawyer minds, at risk. It’s going to be awfully hard for the United States to regain its position as an economic engine in the world with two hands and a foot tied behind its back.

Technology talk at ACC Annual Meeting by Susan Hackett in In-House ACCess

Brad Smith, the general counsel of Microsoft, and Kent Walker, the general counsel of Google were the featured speakers at the Chair’s Choice luncheon at the ACC Annual Meeting in San Antonio. A packed house of over 1,000 were on hand to listen to their vision of the future of technology and its impact on our clients and the legal practice. The session, hosted and moderated by ACC 2010 Chair Pat Hatler, was fed livestream and is available on the ACC website.

EU Agrees to Stronger Hedge Fund Regulation in Compliance Avenue

European Union finance ministers in Luxembourg reached unanimous agreement on a new set of rules regulating hedge funds in Europe.  The deal will create a single “passport” that allows approved hedge funds operating in one EU country access to investors across all other EU countries in exchange for more stringent regulation, which is to be governed by the European Securities and Markets Authority (“ESMA”).

Placement Agents Confused over Rule by Doug Halonen in Pensions & Investments

Many third-party placement agents were caught by surprise by the Oct. 1 deadline to register with the Securities and Exchange Commission. Some also were unclear whether they had to register, period.

FINRA Starts Social Media Audits from SocialWare

This past week we’ve heard multiple stories of FINRA starting to audit social media usage across regulated firms. The most interesting example we heard was of a FINRA auditor delivering printouts of LinkedIn profiles from registered reps of a firm. Attached to those was a letter instructing them to get usage “under control.”

Accessing an Adversary’s Public Social Networking Information — N.Y. Professional Ethics Opinion 843 by Robert D. Brown, Jr. in E-Discovery Law Alert

In Professional Ethics Opinion 843, issued on September 10, 2010, the New York State Bar Association’s Committee on Professional Ethics concluded that an attorney representing a party in pending litigation may access the public pages of another party’s social networking website to obtain publicly available information about that party.

Congressmen Dingell Bungles the FCPA by Mike Koehler in the FCPA Professor

In his letter Dingell asks Krafcik two FCPA related questions. The first – “[g]iven your comments about Hyundai’s being more American than U.S.-based automakers […] will Hyundai publicly commit to complying with all applicable parts of U.S. statute, including the Foreign Corrupt Practices Act (FCPA)?” Newsflash – Hyundai Motor America Corporation, a subsidiary of Hyundai Motor Co. of Korea, is a Florida corporation (see here) headquartered in Fountain Valley, California. In other words, it is a “domestic concern” under the FCPA and subject to the FCPA. Given this, I don’t see why Hyundai would be the least bit hesitant to publicly commit to complying with a law it is subject to.

Legal Implications of Cloud Computing — Part Five (Ethics or Why All Lawyers-Not Just Technogeek Lawyers Like Me-Should Care About Data Security) in the Information Law Group Blog

Here’s the reality:  Technology – whether we are talking cloud computing, ediscovery or data security generally – IS very much the business of lawyers.  This is true both from a legal ethics point of view and from a best practices data security point of view. …  [T]his post focuses on three recent documents, ranging from formal opinions to draft issue papers, issued by three very prominent Bar associations — the American Bar Association (ABA), the New York State Bar Association (NYSBA), and the State Bar of California (CA Bar).

Investment Advisor Registration Under Dodd-Frank: Implications For Securities Class Action Claimants by Luke Green of RiskMetrics

However, Dodd-Frank Act changes related to investment advisor registration may also have a notable impact on securities class actions, especially for private equity and hedge funds that currently enjoy exemption from registration. Generally speaking, many of these firms will be required to register with the SEC as investment advisors. Additionally, the regulatory oversight for firms that are already registered with the SEC will become more strenuous. The focus of this post is the impact that advisor registration changes will have particularly with regard to the securities class action claims filing process.

Learn from the Boy Scouts: be prepared by Jack Vinson

The Boy Scout motto is “Be Prepared.”  This idea shows up again and again in life and business.  For some reason, I pick up on it  right away when I am reading something new or hearing new ideas about how to organize or plan or get something done.  It’s usually in the form of “to succeed at _____, you must be prepared.”

Here are some recent compliance related stories:

Trusted Transactions, or Trusted Relationships? by Charles H. Green in Trust Matters

Much of the public dialogue today confuses these two distinctions. Is it Congress that people don’t trust? Or is it members of Congress who themselves are considered untrustworthy? To the average voter, it’s a distinction without a difference. I suspect the inability to tease them apart is itself a source of anger. But if we fail to separate them, we doom ourselves not only to nasty public discourse, but to failed solutions.

Report Says More Work Needed on Climate Risk Disclosure by by Melissa Klein Aguilar in Compliance Week’s The Filing Cabinet

Despite the attention it’s getting from some investor groups and new guidance aimed at compelling more reporting, corporate climate risk disclosure still has a long way to go, according to an analysis of 100 large-cap U.S. companies’ climate risk disclosures. Very few companies address all of the issues outlined in the Securities and Exchange Commission’s climate risk guidance in their most recent Form 10-K disclosures, an ISS Corporate Services report shows.

Nov. 10 Webcast: FCPA Investigations–The Pitfalls and the Pendulum from Securities Docket

On Wednesday, November 10, Securities Docket will host a webcast in which top current and former SEC officials will discuss FCPA investigations from every angle. Our terrific panel for this discussion will be:

• Cheryl Scarboro, Chief, SEC FCPA Unit;
• John Reed Stark, Managing Director, Stroz Friedberg, a digital forensics firm (former Chief, SEC Office of Internet Enforcement)
• Jonathan Barr, Partner, Baker Hostetler (former SEC Senior Counsel, DOJ Trial Attorney and AUSA).

Free Anti-Bribery & Corruption Masterclass from the Bribery Act

The workshops will take place in early 2011, in our office in London. Each will be geared to a specific industry sector (Pharmaceutical & medical device, construction, defence, oil & gas/extractive and information technology) and will look at the specific risk areas in each sector covered. The focus of the workshops will be the practical implications of the new law and compliance with it in that sector.

The FCPA Mulligan Rule by Mike Koehler in FCPA Professor

[O]ften times, when the requestor senses that it will not receive a favorable DOJ opinion, it simply withdraws the request. I confirmed that this practice does indeed occur with a former high-ranking DOJ FCPA official and others.

Call it the FCPA mulligan rule.