Year: 2010

Compliance Bits & Pieces for July 23

Here are some recent stories that I found interesting:

Dodd-Frank Forum: What would Brandeis think? by Mike Guttentag in The Conglomerate

Louis Brandeis famously coined the metaphor (“sunlight is the best policeman”) that provided the philosophy underpinning the first federal securities acts (disclosure, disclosure, and more disclosure). I thought it might be fun to run a thought experiment: what would the intellectual father of federal securities regulation think of the Dodd-Frank Act?

The FCPA’s Top Ten in the FCPA Blog

Here are the top ten FCPA settlements of all time. If our math is right, the financial penalties (criminal fines, civil disgorgement, and prejudgment interest) add up to $2.8 billion, with almost 50% of that coming from the top two settlements.

The Men Who Ended Goldman’s War by Louise Story for the New York Times

LAST Wednesday at around 3 p.m., the Securities and Exchange Commission and Goldman Sachs settled an epic, seismic battle — one waged over whether the storied investment bank defrauded investors in a transaction that regulators said Goldman had built to self-destruct.

SEC Expects Massive Staff Increase Needed to Implement FinReg in Compliance Avenue

Yesterday, SEC Chairman Mary Schapiro, during her Testimony Concerning Oversight of the U.S. Securities and Exchange Commission: Evaluating Present Reforms and Future Challenges, which she gave before the United States House of Representatives Committee on Financial Services Subcommittee on Capital Markets, Insurance and Government-Sponsored Enterprises, stated that the Commission expects to hire approximately 800 new positions during the course of the implementation.

Image of Louis Brandeis is from the United States Library of Congress’s Prints and Photographs Division under the digital ID cph.3a31794.

SEC is Changing Form ADV

The SEC is trying to improve Form ADV. I wonder if it takes into account the new registration standards under the Dodd-Frank Act or whether they will need to make another to recognize the new law.

From the SEC press Release SEC Approves Disclosure Form Changes to Provide Investors Greater Information About Their Investment Advisers:

Under the new rules, advisers will have to provide new and prospective clients with narrative brochures that are organized in a consistent, uniform manner and that include plain English disclosures of the adviser’s business practices, fees, conflicts of interest, and disciplinary information. Advisory firms also must provide “brochure supplements” to clients containing information about the employees who will provide the advisory services to that client.

The Amendments

  • Improved Format and Updating Requirements. Advisers are required to prepare a narrative, plain English, brochure, presented in a consistent, uniform manner that will make it easier for clients to compare different advisers’ disclosures. The clear and concise narrative descriptions provided in the brochure will improve the ability of clients and prospective clients to evaluate advisers and to understand conflicts of interest that the firms and their personnel face, the effects of those conflicts on the firms’ services, and the steps the adviser takes to address the conflicts.

    Advisers must deliver the brochure to a client before or at the time the adviser enters into an advisory contract with the client. In addition, advisers must provide each client an annual summary of material changes to the brochure and either deliver a complete updated brochure or offer to provide the client with the updated brochure.

  • Expanded Content. The new brochure addresses those topics the Commission believes are most relevant to clients, including:
    • Advisory business — An investment adviser must describe its advisory business, including the types of advisory services offered, state whether it holds itself out as specializing in a particular type of advisory service, and disclose the amount of client assets that it manages.
    • Fees and compensation — An investment adviser must describe how it is compensated for its advisory services, provide a fee schedule, and disclose whether fees are negotiable. The investment adviser must also describe the types of other fees or expenses, such as brokerage fees, custody fees, and fund expenses that clients may pay in connection with the services provided.
    • Performance-based fees and side-by-side management — An investment adviser that accepts performance-based fees, or that supervises an individual who accepts such fees, is required to disclose this fact. If the investment adviser also manages accounts that are not charged a performance fee, the adviser must explain the conflicts of interest that arise from the simultaneous management of these accounts and must describe how it addresses those conflicts.
    • Methods of analysis, investment strategies, and risk of loss — An investment adviser must describe its methods of analysis and investment strategies and explain that investing in securities involves risk of loss which clients should be prepared to bear. Investment advisers who use a particular method of analysis or strategy or who recommend a particular type of security are required to explain the material risks involved and discuss the risks in detail if those risks are unusual.
    • Disciplinary information — An investment adviser is required to disclose in its brochure material facts about any legal or disciplinary event that is material to a client’s evaluation of the advisory business or to the integrity of its management personnel. An investment adviser must deliver promptly to clients updated information when there is new disclosure of a disciplinary event or a material change to an existing disciplinary event.
    • Code of ethics, participation or interest in client transactions, and personal trading — An investment adviser is required to describe briefly its code of ethics and state that a copy is available upon request. The adviser must also disclose whether it or an affiliate recommends to clients, or buys or sells for client accounts, securities in which the adviser or an affiliate has a material financial interest and, if so, the conflicts of interest associated with that practice. The adviser also must disclose whether it or an affiliate invests (or is allowed to invest) in the same securities that it recommends to clients or in related securities, such as options or other derivatives, and must explain the conflicts involved and how it addresses those conflicts. In addition, an investment adviser that trades in the recommended securities at or around the same time as the client has to explain the specific conflicts inherent in that practice and how it addresses them.
    • Brokerage practices — An investment adviser is required to describe the factors considered in selecting or recommending broker-dealers for client transactions and determining the reasonableness of brokers’ compensation. Investment advisers also must disclose soft dollar practices (research or other products or services, other than execution, provided by brokers or a third party to the investment adviser in connection with client transactions); client referrals (using client brokerage to compensate brokers for client referrals); directed brokerage (asking or permitting clients to send trades to a specific broker for execution); and trade aggregation (bundling trades to obtain volume discounts on execution costs). Investment advisers must explain how they address the various conflicts of interest associated with these practices.
  • Supplements. An adviser is required to deliver “brochure supplements” to new and prospective clients providing them with information about the specific individuals who will provide services to the clients. The supplement will contain brief résumé-like disclosure about the educational background, business experience, other business activities, and disciplinary history of the individual, so that the client can assess the person’s background and qualifications. It will also include contact information for the person’s supervisor in case the client has a concern about the person.
  • Internet Availability. Advisers are required to electronically file brochures, which will be publicly available on the SEC’s website.

The SEC expects that most investment advisers will begin distributing and publicly posting new brochures in the first quarter of 2011.

Now It’s the Law

President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act at the Ronald Reagan Building today. The clock starts ticking on the compliance and rule-making deadlines.

“The fact is, the financial industry is central to our nation’s ability to grow, prosper, compete, and innovate. There are a lot of banks that understand and fulfill this vital role, and a lot of bankers who want to do right by their customers. Well, this reform will help foster innovation, not hamper it. It is designed to make sure that everyone follows the same set of rules, so that firms compete on price and quality, not tricks and traps. It demands accountability and responsibility from everyone. It provides certainty to everybody from bankers to farmers to business owners. And unless your business model depends on cutting corners or bilking your customers, you have nothing to fear from this reform.” – excerpt from the president’s speech

The President was joined on the stage by two non-politicians:

Andrew Giordano is a retired Vietnam veteran from Locust Point, Maryland who the President met last year when he participated in a roundtable to discuss the outdated rules regulating the financial sector. Mr. Giordano was saddled with hundreds of dollars in overdraft fees on his veteran’s account because his bank had automatically enrolled him in “overdraft” protection that he never asked for. The new Consumer Protection Bureau will enforce new rules on overdraft programs to make sure that consumers like Mr. Giordano get a real choice and are not unknowingly charged unnecessary fees.

Robin Fox is a 7th grade science teacher from Rome, Georgia who sent an letter to the President in early August because her credit card company retroactively increased the rate on her existing credit card balance from 10.90% to 17.90%, even though she paid her account on time. The increase has been a burden on her family at an already difficult time, after her husband’s landscaping business dried up due to the financial crisis. The new Consumer Protection Bureau will enforce the Credit CARD Act of 2009, which bans arbitrary rate hikes on existing balances and other unfair practices by credit card companies.

The politicians on the stage:

  • Vice President Biden
  • Secretary Timothy Geithner
  • Chairman Chris Dodd, D-CT
  • Chairman Barney Frank, D-MA
  • Speaker Nancy Pelosi, D-CA
  • Senator Harry Reid, D-NV
  • Senator Blanche Lincoln, D-AR
  • Representative Collin Peterson, D-MN
  • Representative Steny Hoyer, D-MD
  • Representative Paul Kanjorski, D-PA
  • Representative Maxine Waters, D-CA
  • Representative Mel Watt, D-NC
  • Representative Luis Gutierrez, D-IL
  • Representative Gregory Meeks, D-NY
  • Representative Dennis Moore, D-KS
  • Senator Tim Johnson, D-SD
  • Senator Jack Reed, D-RI

I assume everyone got pens.

Sources:

UK Bribery Act Delayed

When I saw there was a press release from the UK’s Ministry of Justice, I was expecting an announcement of what it meant for a commercial organization to have “adequate procedures” to prevent bribery. That being the only affirmative defense under the Bribery Bill.

It turns out that implementation of the Bribery Act will be delayed until April 2011. They will start the regulatory process for guidance on procedures which commercial organizations can put in place to prevent bribery. That guidance is scheduled to be released in early 2011 in time for organizations to ramp up for the compliance deadline.

I view the UK Bribery Act as being more strict than the Foreign Corrupt Practices Act since it has no exclusion for “facilitation payments” and is not limited to government officials. The US DOJ and SEC have stepped up their enforcement of the FCPA which makes it a big concern for any company with international operations. We have yet to see how the UK government will enforce its Bribery Act.

In light of the delay, Transparency International is planning to publish its own guidance to “allow companies to get a ‘head start’ in tightening up their anti-corruption procedures.”

Sources:

Do Prosecutions Stop Insider Trading?

We generally assume that the prosecution of crime acts as a deterrence to others who may think about committing the crime. One of the key factors in fraud is opportunity. If the wrongdoer thinks they can not get away with the violation, they are less likely to commit the violation.

At least that is the theory. Social scientists have been looking at this strategy for a long time, with sometimes mixed results. My guess is that the deterrent effect will vary from crime to crime and deterrence strategy to deterrence strategy.

What about insider trading?

The UK’s Financial Services Authority has published a metric on insider trading. They look at the level of abnormal pre-announcement price movements (APPMs) in the share price of a company.

“The level of APPMs for the takeover data set has remained stable over the past few years including for 2009. The level of APPMs for the FTSE 350 data set remained at a low level in 2009.”

The data does not show any improvements. The data set is on the small side so it is hard to judge significance. The FSA program is also new. The program begin during a period of great turmoil in the financial markets.

On the other hand, the FSA’s new enforcement activity of criminal prosecutions and large fines did not affect the amount of abnormal pre-announcement price movements. If this robust enforcement activity is supposed to have a deterrent effect, it does not obviously appear in the data.

Perhaps robust enforcement activity catches more bad guys but does not reduce the bad activity.

Sources:

It Does Not Take Much to Get You Into FCPA Trouble

The recent FCPA enforcement actions brought against Veraz Networks, Inc. shows that it does not take huge piles of money to get in trouble. Veraz admitted to making improper payments of only $40,000.

Not that $40,000 is an insignificant amount. It just pales in comparison to the huge dollars we have seen on other FCPA enforcement actions.

That $40,000 in improper payments led to a $300,000 fine and $3,000,000 of investigation expenses.

Back in 2008 Veraz was involved in an SEC investigation that resulted in the company not being able to timely file its 10Q for March 31, 2008. The FCPA violation was uncovered by the company during this investigation. It’s not clear what the original SEC investigation was focused on, but I would guess it was not FCPA violations. They were merely a byproduct of another investigation.

What lessons can we learn from the Veraz?

It does not take a lot of zeros to have an FCPA violation. It’s clear from the statute that even a nominal amount can be a violation.

FCPA violations are on the SEC’s checklist when they start poking around. The SEC is getting easy wins from the FCPA.

Sources:

Goldman Settles; Fabulous Fab is Left on His Own

Goldman Sachs settled with the Securities and Exchange Commission. That’s not a surprise. Goldman did not want to litigate this action. It wanted it to go away.

As a shareholder in Goldman, I wanted it to go away. It seems others did also. GS stock price opened at $138.50 on Thursday morning. It opened at $151.47 this morning. That’s a 10% increase based on the settlement. The stock has been down 21% since the SEC filed its complaint.

Goldman is going pay $550 million, with $250 million going to investors and $300 million going to the SEC. The dollar amount is not a surprise. I assumed the top dollar amount was the $1 billion lost by investors. I think the time it took between the filing of the action and the settlement was largely focused on how much Goldman was going to pay to make this ugly incident go away.

That is a big dollar amount. As SEC enforcement director Robert Khuzami points out, it’s the biggest SEC fine against a Wall Street firm. There have been bigger fines in other industries.

According to Footnoted, Goldman has $27 billion is cash and short term securities. It’s big dollar number, but Goldman can find that much the cash by looking under the cushions on its couch.

Unfortunately for Goldman VP Fabrice Tourre, he is not included in the settlement. The SEC is continuing its litigation against him. Fabulous Fab has a Monday deadline to respond to the SEC complaint. Fab still works at Goldman but is on paid leave.

He is trying to clear his name. Goldman just paid to get theirs back.

Sources:

Compliance Bits & Pieces for July 16

Here are some recent stories that I found interesting:

Canada and the Corruption of Foreign Officials Act by Tom Fox

The CFPOA was passed in back in 1999. However, up until this year, there was only one enforcement action under the legislation involving a Canadian company and no prior enforcement actions against individuals. The Canadian government, as a signatory to the OECD Treaty Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, felt an obligation to actively enforce its foreign anti-corruption and anti-bribery statute. This led to the funding for and creation of two RCMP units dedicated to enforcing the act, in 2008.

Defendant Used Blackberry PIN Messages to Avoid Feds by Ryan J. Reilly in Main Justice

According to the DOJ, Farkas and his co-conspirators made efforts to disguise their alleged fraud by communicating using a feature on their Blackberry phones that allowed them to send so-called “PIN messages,” which are similar to text messages but not routed through or saved on a computer server.

What One Mizzou Grad Learned in Law School by Kashmir Hill in Above the Law

I’m studying for the bar right now, and to be honest, little of this sounds like what I learned in law school. So I said to myself, if I didn’t pick up these 20-odd topics, what did I learn? He came up with a list of the 17 things he learned in law school.

Site offers Better Access to Federal Rulemaking in Robert Ambrogi’s LawSites

But Regulations.gov is difficult to use for experts and average citizens alike, say the founders of a new site, OpenRegs.com. They have created this site “to make the proposed and final regulations published in the Federal Register easy to find and discuss, so that citizens can become better informed and more involved.”

How Embarrassing… Westlaw Reference Attorneys Are Blogging… And You’re Not?? by Greg Lambert in 3 Geeks and a Law Blog

Westlaw’s Reference Attorneys have set up their own blog where they focus on the needs of Summer Associates and produce blog posts that point out some of the needs expressed by Summer Associates and relay that to others. The bloggers share information that comes in from Summer Associate calls in order to identify trends (such as issues on the gulf oil spill), and get someone to blog about how they’ve handled the issues so that others can benefit from the experience.