Category: Publish to KM Space

FTC, Bloggers, and Disclosure

The Federal Trade Commission is continuing to pursue bloggers who fail to disclose that they received incentives to discuss a company’s products. Back in December, the Federal Trade Commission released new guidelines that specifically required bloggers to disclose any material connections to a product or company they are writing about. The FTC is focusing its efforts on the company.

The latest company snared in the failure to disclose is Hyundai. The FTC took a close look at a promotion in which bloggers were given gift certificates as an incentive to include links to Hyundai videos in their posts or to comment on Hyundai’s Super Bowl ads. One focus was whether the bloggers were told to disclose or were told not to disclose that they had received compensation.

It seems Hyundai’s first defense was that it wasn’t their fault, but he fault of their advertising agency. The FTC won’t take that defense and pointed out that advertisers are legally responsible for the actions working directly or indirectly for them.

What saved Hyundai is that their established social media policy calls for bloggers to disclose the receipt of compensation. What saved Hyundai’s advertising agency was that their established social media policy calls for bloggers to disclose the receipt of compensation.

By having the policies in place, Hyundai and the advertising agency were able to establish that the bad actions were those of rogue employee operating outside the established policies of the firms. That’s compliance in action.

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Compliance and the South Pole

We reckoned now that we were at the Pole. Of course, every one of us knew that we were not standing on the absolute spot; it would be an impossibility with the time and the instruments at our disposal to ascertain that exact spot. But we were so near it that the few miles which possibly separated us from it could not be of the slightest importance. 

Roald Amundsen – December 14, 1911

The South Pole is a harsh and isolated environment. It’s bit more plush now that when man first stepped on the location 100 year ago. Amundsen slept in a small tent. Today visitors can take it a bit easier in the Amundsen-Scott South Pole Station. You can even see a picture of the day from the South Pole.

At least during the Antarctic summer when the average high is a balmy -15°F with near endless daytime. From mid-April to mid-August, the only natural light comes from the moon and the aurora australis. Those settled in for the Antarctic winter don’t see the sun for months and the average high drops to a bone-chiling -68°F

The current station is on jacks so it can battle the 8 inches of snow that accumulates each year by raising its elevation. Since it’s sitting on a moving glacier it moves about 10 meters each year. It’s in constant movement, battling the forces of nature that kept in uninhabited until modern technology was able to fight back against the elements.

There are many comparisons you can draw between the South Pole and a compliance program.  I’ll let you draw your own.

 

I’m an NFL Owner

Sort of.

The Green Bay Packers want to expand Lambeau Field by 6,700 seats, add new gates and new video boards. To finance the improvements, the team ownership decided to sell additional stock in the ownership corporation. Since the Kraft family is unlikely to be selling the Patriots anytime soon, I was willing to part with some football loyalty and some cash to get my own piece of the NFL pie.

Unlike the rest of the National Football League franchises, the Green Bay Packers franchise is owned by non-profit, community-based organization, Green Bay Packers, Inc. The corporation is required to be nonprofit sharing and that no shareholder may receive any dividend or pecuniary profit by virtue of being a shareholder in the corporation. Any increase in value or operating profits and any proceeds upon liquidation of the corporation will go to community programs, charitable causes or other similar causes. If you add in limitations in stock ownership and transfer restrictions, it’s virtually impossible for anyone to recoup the amount initially paid to acquire the stock. That makes it a completely non-economic investment.

Is it a security?

Here is what the offering document says:

Because the Corporation believes Common Stock is not considered “stock” for securities laws purposes, it believes offerees and purchasers of Common Stock will not receive the protection of federal, state or international securities laws with respect to the offering or sale of Common Stock. In particular, Common Stock will not be registered under the Securities Act of 1933, as amended, or any state or international securities laws. The Common Stock will not be approved by the Securities and Exchange Commission or any state or international regulatory authority nor will the
Securities and Exchange Commission or any state or international regulatory authority approve the Offering or the terms of the Offering.

Under the Howey definition of an investment contract, you need (1) a common enterprise and (2) to depend “solely” for its success on the efforts of others. Certainly, the Packers’ stock meets those two prongs. The third prong is an expectation of profits. That is not true. However the definition of “security” in the Securities Exchange Act of 1934 includes “any note, stock, treasury stock…” The interests in the Packers are clearly stock and seem to fall into the definition of security.

What do you get?

A certificate:

The certificate is designed in the timeless tradition of classic stock certificates. The 12 inch by 8 inch certificate is printed on exquisite paper using a classic engraved steel plate process. It features an artistic representation of heritage. The record of your ownership will be secure, and you will be able to display your ownership with pride.

Is this Crowdfunding?

This is the current state of crowdfunding. You can’t offer securities without going through the registration process or finding an exemption. But you can still raise funds from a large group of people. Just don’t offer a share of the profits or stock. That’s how the kickstarter crowdfunding platform works. You get an over-priced product or a t-shirt or some other token of appreciation. As a backer, you do not have visions of early retirement because you just bought a piece of ownership in a multi-million dollar idea.

A Packers’ alternative would be to have merely offered a certificate of appreciation or tufts of grass from Lambeau field. But they offered the ability to say “I’m an NFL owner.”

I’m supporting a multi-million dollar idea. On Any Given Sunday, any team in the NFL can beat another. A team from tiny Green Bay, Wisconsin can still generate the revenue to field a competitive team and win the Super-Bowl.

I still prefer that the Patriots win the Super Bowl.

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Compliance Bits & Pieces for MF Global Edition

MF Gloabl clearly took a big bet on European sovereign debt. It looks like Jon Corzine, the head of the company, essentially went “all-in” and bet the company on the trades.  He lost. His counterparties called collateral and the company quickly lost liquidity and solvency. On Halloween, MF Global filed for bankruptcy, listing $39.7 billion in debt and $41 billion in assets and put thousands of people out of work.

Unfortunately, it looks like some of the customer accounts were tied up in the company’s proprietary trading. It looks like $1.2 billion is missing from customer accounts.

MF Global and the great Wall St re-hypothecation scandal by Christopher Elias in Thomson Reuters

Under the U.S. Federal Reserve Board’s Regulation T and SEC Rule 15c3-3, a prime broker may re-hypothecate assets to the value of 140% of the client’s liability to the prime broker. For example, assume a customer has deposited $500 in securities and has a debt deficit of $200, resulting in net equity of $300. The broker-dealer can re-hypothecate up to $280 (140 per cent. x $200) of these assets.

But in the UK, there is absolutely no statutory limit on the amount that can be re-hypothecated. In fact, brokers are free to re-hypothecate all and even more than the assets deposited by clients. Instead it is up to clients to negotiate a limit or prohibition on re-hypothecation. On the above example a UK broker could, and frequently would, re-hypothecate 100% of the pledged securities ($500).

Statement of Jon S. Corzine before the US House of Representatives Committee on Agriculture (.pdf)

Recognizing the enormous impact on many peoples’ lives resulting from the events surrounding the MF Global bankruptcy, I appear at today’s hearing with great sadness. My sadness, of course, pales in comparison to the losses and hardships that customers, employees and investors have suffered as a result of MF Global’s bankruptcy. Their plight weighs on my mind every day – every hour. And, as the chief executive officer of MF Global at the time of its bankruptcy, I apologize to all those affected.

Before I address what happened, I must make clear that since my departure from MF Global on November 3, 2011, I have had limited access to many relevant documents, including internal communications and account statements, and even my own notes, all of which are essential to my being able to testify accurately about the chaotic, sleepless nights preceding the declaration of bankruptcy. Furthermore, even when I was at MF Global, my involvement in the firm’s clearing, settlement and payment mechanisms, and accounting was limited.

Corzine Rebuffed Internal Warnings on Risks by Aaron Lucchetti and Julie Steinberg in the Wall Street Journal

MF Global Holdings Ltd.’s executive in charge of controlling risks raised serious concerns several times last year to directors at the securities firm about the growing bet on European bonds by his boss, Jon S. Corzine, people familiar with the matter said.

The board allowed the company’s exposure to troubled European sovereign debt to swell from about $1.5 billion in late 2010 to $6.3 billion shortly before MF Global tumbled into bankruptcy Oct. 31, these people said. The executive who challenged Mr. Corzine resigned in March.

The disagreement shows that concerns about the big bet grew inside the company months before the trade rattled regulators, investors and customers. The executive, Michael Roseman, whose title was chief risk officer, also expressed concerns directly to Mr. Corzine in meetings of just the two men and with other people present, people familiar with the situation said.

The Corzine lesson on executive departures by Theo Francis in Footnoted*

The only other indicator that something might be wrong was the fact that MF Global paid Roseman $1.35 million as he left. But this is all MF Global’s July proxy had to say on the subject:

“Mr. Michael Roseman’s employment with the Company ended effective March 31, 2010. In connection with his separation from the Company, Mr. Roseman was paid severance totaling $1,350,000 under his employment agreement. Mr. Roseman’s severance payment was calculated by adding his fiscal 2011 target cash bonus amount ($500,000), his fiscal 2011 target equity bonus amount ($500,000) and his fiscal 2011 salary ($350,000). All of Mr. Roseman’s unvested restricted stock units vested as of March 31, 2011.”

This is where reading between the lines becomes so critical. Executives who quit of their own volition, especially non-CEOs, rarely get big bucks on their way out the door. Often, that’s a sign that they went unwillingly. And yet, it offers no hint as to why he left: Poor performance? Personality conflict? Someone’s brother-in-law needed a job? There are a million potential reasons, good and bad, for easing someone out, and investors shouldn’t be left to guess.

Boomerang – Michael Lewis Looks at the New Third World

Michael Lewis packages his stories on the effects of the global financial crisis in Iceland, Greece, Ireland, Germany, and California into one book: Boomerang. If you had ready the stories when they were published in Vanity Fair, then you’ve ready the book. If you missed some (or all) of those stories then this book is great viewpoint on how five countries got themselves into trouble with excessive debt.

I had already read the first four articles when they appeared in Vanity Fair, but I had not yet gotten to the article on California. In fairness, Boomerang was a given to me as a gift so I did not come out of pocket to put it on my bookshelf. I enjoyed revisiting the four stories and the new California story.

They each seemed to work better in the collection than standing on their own. Since each story is relatively short, they lack the depth and understanding I’m used to getting in one of Michael Lewis’ books. Collectively, there is bit more depth as you can see how the five different countries got into trouble in different ways by becoming over-leveraged.

It’s a Michael Lewis book, so that means it’s easy to read and smart. He has a gift for taking complicated subjects and using individuals to highlight how his theories work in the real world.

My gripe is not with the book, but with Vanity Fair who sponsored Lewis in writing the five stories, each of which has appeared in the magazine. I purchased a subscription to Vanity Fair just because of these Lewis articles. I thought I was choosing to upgrade the freemium model.  I was willing to pay more for the superior experience of reading the article in the magazine instead of online. However, the publisher would put them on the website (for free) before the magazine ended up in my mailbox. One premium of getting access to the content first, was actually the opposite. I was getting the content later than if I had chosen not to pay for it. It’s not like the magazine is ad-free.

So why I would I renew my subscription?

Salute a Veteran


U.S. President Woodrow Wilson first proclaimed an Armistice Day for November 11, 1919.

“To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations…”

The United States Congress passed a resolution seven years later on June 4, 1926, requesting the President issue another proclamation to observe November 11 with appropriate ceremonies. An Act approved May 13, 1938, made the 11th of November in each year a legal holiday:

“a day to be dedicated to the cause of world peace and to be thereafter celebrated and known as ‘Armistice Day’.”

Congress amended this act on November 8, 1954, replacing “Armistice” with Veterans, and it has been known as Veterans Day since.

My thoughts go out to Marine Corps Sergeant Jason Cohen, currently serving his last few weeks in active service.

Compliance Bits and Pieces for November 4

Here are some compliance-related stories that recently caught my attention:

How Trustworthy Are You? from the Trusted Advisor

A summary infographic on five questions from the Trust Quotient self-assessment

Investigation Nation: SEC Employees and Inspector General Play Cat-and-Mouse by Bruce Carton in Compliance Week’s Enforcement Action

A group called Citizens for Responsibility and Ethics in Washington (CREW) has asked the SEC Inspector General to launch an investigation into whether SEC employees are using private email accounts and cell phones to avoid having their communications reviewed in SEC Inspector General investigations.

To Err Is Human . . . and Punishable by the SEC by Russell G. Ryan in CFO

Even as the SEC pleads for more resources from Congress to keep up with existing responsibilities and the mind-boggling array of new regulatory burdens dumped upon it by last year’s Dodd-Frank financial reform act, the agency reportedly intends to expand its enforcement reach. The regulator will apparently pursue not only its signature cases against deliberate and reckless fraudsters, but also cases against people who make merely negligent mistakes. Apparently, as the SEC has progressed with its investigations relating to the financial meltdown, it has found many examples of negligence and bad judgment, but fewer instances of deliberate fraud than most people assume.

The Seven Deadly Sins for a Compliance Program by Tom Fox

1. Putting the Code of Conduct on your Shelf
2. Ignoring your Company’s Culture
3. Worshiping at the Altar of Highest Grade Point Average
4. Letting the Money Talk
5. The Parent Trap – Do as I say, not as I do
6. Ethics in the Corner
7. Shooting or Ignoring the Messenger

When Prediction Markets Go Bad in Saturday Morning Breakfast Cereal

For some R Rated Humor

Halloween and Compliance

A compliance professional can turn the fun and chaos of Halloween into a boring night on the study of procedure. Here, I’ll prove it.

Let’s start with costumes.

Have you imposed a “no costume = no candy” rule. Perhaps you merely skimp on the older kids who have skimped on dressing up. If you, like me, are suddenly living in winter you need to figure out what do with the kids who are all bundled up fighting the cold. They might all look like Eskimos tonight instead of zombies and superheroes.

Perhaps you are afraid to skimp because those older kids who didn’t put much effort into a costume may put more effort into toilet paper and eggs. Are you willing to compromise on your rule because you are afraid of the repercussions. How would that reflect on your compliance program?

Let’s move on to technology.

What about using Halloween metaphors to remind yourself about protecting your computer? Try the FCC:

  1. Are cyber ghouls and online scammers feasting on your computer? This Halloween, learn how to stop them at OnGuardOnline.gov.
  2. Don’t let someone decide to be you for Halloween. Read more about online identity theft at OnGuardOnline.gov.
  3. Don’t let computer security worries haunt you at night. OnGuardOnline.gov says download software updates and patches often.
  4. Garlic? Stake through the heart? OnGuardOnline.gov says only the latest security software protects you from online vampires.
  5. Zombie warning! Update your security software often to protect your computer from zombie bots. Read more at OnGuardOnline.gov.
  6. Don’t let old security software spook you. Keep firewall, anti-virus, and anti-spyware software updated, and visit OnGuardOnline.gov.
  7. Beware of online tricks this Halloween and enable your computer’s firewall. Find out more at OnGuardOnline.gov.
  8. Don’t let a virus ruin your computer’s Halloween spirit. Visit OnGuardOnline.gov for tips to keep your computer virus-free.
  9. Don’t be a “phish” for Halloween. Visit OnGuardOnline.gov to learn how to spot computer scams that try to hook your personal info.
  10. When you tell kids about Halloween safety, tell them about online safety too. To learn how, read Net Cetera at OnGuardOnline.gov.
  11. If you leave your laptop for ‘just a sec,’ it could become someone else’s Halloween treat. Visit OnGuardOnline.gov to learn more.
  12. Can you spot an internet scam dressed up as a great deal? Visit OnGuardOnline.gov for tips on how to spot online frauds.

And let’s put a little scare into you while your little ones are running around the neighborhood.

A team of local law enforcement agencies in Milwaukee are going door-to-door in search of sex offenders who are breaking their compliance rules.  “Offenders are not allowed to have anything related to trick-or-treating that includes bowls of candy Halloween decorations, pumpkins. They can’t have their porch light on indicating that the residence is participating in any trick-or-treat activities,” said Melissa Othmer of the Department of Corrections, Probation and Parole.

Boo!

The jack o’ lantern Death Star is by Noel Dickover with instructions on his site, Fantasy Pumpkins, on how to create one yourself.

Occupy the SEC

I will admit that I have been personally dismissive of the Occupy Wall Street movement and the splinter group of Occupy Boston that I pass by on the way to the office. Yesterday’s post on Occupy LEGO Land was an example. They lack a message and I personally think most of their message are off base. (Down with Evil Corporations)

One thing that caught my eye was infrastructure. Occupy Boston has a wooden street right down the middle of their tent city. There is a food tent and a legal tent. (There’s probably more examples of physical infrastructure.) That means collective decision-making and an allocation of resources. That means a community has formed from the mob of the 99%.

That collective decision-making can be seen in the General Assembly Meeting that happens every night. There is a participatory democracy, with everyone given a right to speak.

Why not take that model to the regulators? Why not make the Securities and Exchange Commission listen to the comments from everyone?

…What’s that?     … They do that?    … Where?

Actually, the SEC allows anyone to submit comments on their proposals.  Take for example the hundreds (thousands?) of comments the SEC received on Definitions Contained in Title VII of Dodd-Frank Wall Street Reform and Consumer Protection Act. Anyone can submit a comment by sending a letter, using the web, or sending an email.

Will they listen? I assume they read each and every comment letter. The participatory democracy of a few hundred campers on the Greenway does not scale to the complex economy of a few million. Regulators need to choose among competing interests that protect the public, yet give the regulated the guidance they need. Everyone’s voice can still be heard.

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