2010 Year in Review: Securities Enforcement, Litig. & Compliance

The recent Equifax data breach is perhaps the largest in history and has barraged the company and its senior executives with a complex and challenging range of legal, financial and technological issues -- issues that every corporation and its outside counsel will inevitably (and unfortunately) encounter.

In this timely webcast, John Reed Stark, seasoned data response professional and former Chief of the SEC's Office of Internet Enforcement, drills down to explain it all.

Don't miss this early opportunity for a detailed analysis, presented in plain English, of the many critical caveats, reminders and takeaways from this evolving and ironic cybersecurity incident.

After a significant corporate crisis event, issuers are often forced to navigate concurrent matters in multiple jurisdictions. The matters at issue may involve internal investigations, SEC and DOJ investigations, exchange listing inquiries, private class actions and derivative actions. There are multiple constituents in each of these forums -- many of which have competing interests and agendas.

Decisions made in one forum can, and often do, have significant impact on the other. Having a thorough understanding of these competing interests and procedures is imperative in successfully coordinating navigating this complicated playing field.

Join an experienced panel of securities lawyers and forensic accountants who conduct investigations, interact with government regulatory entities, audit committees and independent auditors, and represent issuers in multiple jurisdictions, as they discuss the often overlooked implications of dealing with multiple investigations and actions.

Panel: Michele E. Rose and Robert P. Howard, Jr., of Murphy & McGonigle PC; and Jim Barratt and Amy Gonce of Ankura Consulting, LLC

In May, 2016 the Financial Crimes Enforcement Network (FinCEN) issued final rules under the Bank Secrecy Act to clarify and strengthen customer due diligence requirements for: Banks; brokers or dealers in securities; mutual funds; and futures commission merchants and introducing brokers in commodities. The rules contain explicit customer due diligence requirements and include a new requirement to identify and verify the identity of beneficial owners of legal entity customers.

Join a distinguished panel of industry professionals to discuss what the rule requires and what it means to your firm. More importantly, the event will include a practical discussion of what firms should be considering and doing in advance of the rule’s May 2018 final applicability date. Topics to be covered include:

· How do financial institutions (“FIs”) intend to identify and verify Beneficial Owners (“BOs”) and Control Persons (“CPs”)?
· What is a “customer profile” and what do you do with it?
· How will the rule affect transaction monitoring, suspicious activity investigations and reporting from both a technology and compliance program standpoint?
· What risk-based trigger events are FIs considering when updating beneficial ownership information?

As the Bribery Act starts to bite, the UK Government looks to abolish the SFO!

On the 6th anniversary of the Bribery Act entering into force we have now seen further significant enforcement activity in the UK.

In this webcast, our panel of expert UK attorneys and consultants look back over the last 12 months and forecast where we see developments in the year to come. The panel will discuss issues including:

-- Key developments over the last twelve months, including the Rolls Royce DPA and corporate prosecution under the Bribery Act.
-- What’s next:
* DPA’s v. Prosecution. Latest developments?
* Privilege and bribery investigations, what are the issues coming out of ENRC?
* What is the future of the SFO?

This webcast will consist of an analysis of the issues commonly confronted in fraudulent transfer litigation under the U.S. Bankruptcy Code and state law. The first portion of the program will provide attendees with an overview of the relevant legal aspects of the fraudulent transfer litigation, including discussion of:

•Relevant provisions of the U.S. Bankruptcy Code, including §548;
•Bankruptcy Code §544 and the Uniform Fraudulent Transfer Act;
•Proving constructive fraud versus actual fraud; and
•Recent developments in case law.

The second half of the program will focus on valuation analyses often performed in conjunction with constructive fraud claims under §548 and state law, including:

•Performing the balance-sheet test;
•Assessing the adequacy of capital; and,
•Analyzing the debtor’s ability to pay debts as they become due.

Numerous case studies will be used during the program to highlight the legal and valuation issues.

The program and a Q&A session will be presented by litigation and bankruptcy attorney Dion Hayes from the law firm of McGuireWoods LLP and valuation experts Jeff Litvak, Scott Friedland and Clara Chin of FTI Consulting.

For legal and compliance professionals, data breach response is where FCPA and AML were fifteen years ago – quietly and quickly emerging as the fastest and most lucrative legal and compliance practice area. Every white collar defense and commercial litigator, and attorneys and other professionals in related areas, should be preparing to enter this exploding marketplace.

Just like any other independent investigation, data breach response requires careful legal navigation. In addition to the governmental investigations and litigation, the list of civil liabilities after a cyber-attack is almost endless, including shareholder lawsuits for cyber security failures; declines in a company’s stock price; and management negligence. There may also be consumer/customer driven class action lawsuits against companies falling victim to cyber-attacks, alleging a failure to adhere to cyber security “best practices.”

Legal and compliance professionals who understand data breach response can also provide critical strategic benefits for their clients, such as: 1) serving as an objective sounding board to IT staff tasked with designing, implementing, and reviewing data security practices and remediation; 2) reviewing privacy policies; testing representations made to consumers, and evaluating how outsiders might exploit those representations in court; and 3) assisting in litigation-testing the "reasonableness" of cybersecurity practices.

In order to meet this growing client need, legal and compliance professionals must first understand the intricacies of a data breach response. This webcast fills that critical gap — reviewing data breach response workflow in plain English, designed exclusively for legal and compliance professionals who want to take the lead of, or assist with, data breach response engagements and investigations.

With the change in administration and the replacement of SEC Chair White, the state of SEC enforcement is in flux, and public companies are pressed to reevaluate how they deal with regulators and manage internal processes. This webcast will provide an in-depth examination of the projected 2017 areas of SEC focus, as well as an overview of how in-house counsel and finance teams can avoid missteps in this evolving financial reporting landscape.

This program and Q&A session will be presented by SEC investigations and white collar defense attorney Nicolas Morgan from the law firm of Paul Hastings LLP, and forensic accounting, regulation and compliance expert Jean Chow-Callam of FTI Consulting. The presenters also will discuss steps for dealing with regulators and managing internal processes to simultaneously avoid and prepare for investigations, and other highlights from their article “Top SEC Concerns in Public Company Financial Reporting to Watch in 2017” published in Bloomberg BNA Insights in February 2017.

The word is out—the SEC has made good on its promise to pay millions of dollars in awards to those who come forward with evidence of securities law violations and employees are taking notice. For the fifth consecutive year, 2016 saw the number of tips flowing into the SEC Office of the Whistleblower reach a record high, including a new high for complaints of FCPA violations. In 2016, the SEC awarded to whistleblowers over $57 million—higher than the combined award amount from all previous years.

Meanwhile, the SEC’s Division of Enforcement brought multiple enforcement actions to discourage what it views as overly restrictive employee severance and confidentiality agreements as well as an unprecedented stand-alone enforcement action against an employer for allegedly retaliating against a whistleblower employee. In addition, federal courts across the nation continue to reach disparate conclusions concerning the scope of Dodd-Frank’s whistleblower retaliation provisions. These trends, coupled with dynamic developments in FCPA enforcement, provide the perfect storm for keeping in-house counsel and compliance professionals up at night.

The panel discussing these developments will include Patrick F. Stokes of Gibson, Dunn & Crutcher and Sean X. McKessy of Phillips & Cohen, respectively the former chiefs of DOJ’s FCPA Unit and the SEC’s Office of the Whistleblower. Joined by co-panelists F. Joseph Warin and John W.F. Chesley of Gibson Dunn, Erika A. Kelton of Phillips & Cohen, and Jim Barratt of FTI Consulting, this free 90-minute webcast will include a dynamic and participatory discussion on Dodd-Frank’s statutory and regulatory framework, discuss its early and recent interpretations by the SEC Office of the Whistleblower and federal courts, analyze the statute’s intersection with the FCPA, and provide participants with practical tips for navigating the minefield of whistleblower complaints.

In this annual webcast, our panel will analyze key developments in SEC enforcement and notable events from 2016, and will discuss what to look for in 2017. Among other items, the panel will address:
•The change in leadership at the SEC and what to expect;
•Results of litigation and current issues arising from SEC actions;
•Themes from cases involving the FCPA, financial fraud, gatekeepers, market structure, insider trading, and investment management;
•Updates on the Whistleblower Program, use of technology, and other ongoing initiatives;

Please join panelists Bill McLucas and Doug Davison, securities partners at Wilmer Cutler Pickering Hale and Dorr LLP; and Marty Wilczynski and Steve Richards, Senior Managing Directors with Ankura Consulting as they address these and other developments in SEC enforcement.

In recent years, criminal fines and penalties have risen drastically as a result of price-fixing and bid-rigging conspiracies uncovered among automotive parts manufacturers. While companies face these mounting fines, they need not accept the fine initially imposed. The United States Sentencing Guidelines do allow for a reduction of a criminal fine based on a company’s inability to pay. This webcast seeks to inform practitioners on the considerations of this ability-to-pay defense, strategies and process. As an illustration, this webcast includes a case study analyzing a company’s ability to pay a fine resulting from antitrust violations; however, the described methodology has other applications. Additional arenas where this defense has relevance include environmental clean-up costs, healthcare fraud, securities and commodities fraud, as well as FCPA and sanctions violations.

The session will provide insight into the financial analyst’s role in evaluating the company’s financial status and the basis of the framework for the ability-to-pay argument. As part of the case study, the session will walk through an ability-to-pay model including analysis of projected free cash flow and the strength of the company’s balance sheet. Lastly, the session will address the importance of the financial expert’s role in discussions with the DOJ and its financial expert.

The SEC has been very active in pursuing enforcement cases relating to accounting errors that led to a restatement. The decisions of the board of directors and management before, during, and after a restatement will be under scrutiny. A company’s actions in investigating and correcting accounting errors and ultimately restating financials are critical to avoid a prolonged SEC investigation, increased liability in civil litigation, loss of confidence by lenders and shareholders, and potential delisting by an exchange. Appropriately managing a restatement requires special care and skill.

Join us for this webcast on Wednesday, September 21, 2016 at 1:00 pm to hear a leading practitioner’s perspective on how to avoid potential pitfalls in the restatement process.

In April 2016, the Department of Labor issued final regulations expanding the definition of “fiduciary” for advisers to retirement plans, including advisers to IRAs and ERISA plans. Some advisers and financial institutions who previously were not considered fiduciaries now will be required to meet a fiduciary standard of care and, unless an exemption applies, may not engage in so-called “prohibited transactions” that create potential conflicts of interest (e.g., receiving compensation from third parties in connection with a transaction involving an IRA or an ERISA plan).

The DOL also created a key exemption known as the Best Interest Contract Exemption (“BIC Exemption”). In general, the BIC Exemption allows advisers to engage in otherwise “prohibited transactions” as long as certain criteria are met. The new regulations will be phased in over time. The new definition of “fiduciary” will apply on April 10, 2017. The entire regulatory package will apply on January 1, 2018.

In this Webcast, Brad Bondi (a partner at Cahill Gordon & Reindel LLP who leads the securities enforcement and regulatory practices) and Michael Wheatley (an associate at Cahill) will address issues concerning the new regulations, its impact on the financial services industry, best practices for financial services firms and lawyers to prepare for this new regulatory scheme, and pitfalls to avoid.

Miss this webinar at your peril! On the eve of the 5th anniversary of the Bribery Act entering into force we have now seen significant enforcement activity in the UK and the UK corporate crime regime is on the cusp of the biggest change in its history that will impact on every business with far reaching consequences for business.

In this webinar we shall look back over the last 12 months and forecast where we see developments in the year to come. We shall discuss:

1. Our take on the developments over the last twelve months, including the first DPA, corporate prosecution under the Bribery Act and use of the new sentencing guidelines.
2. What's next:
· What do the biggest alleged bribery scandal of all time and the Panama Papers have in common?
· DPA's v. Prosecution. With no discount for a DPA, what is the point?
· Changing the UK's AML regime: the other side of the Bribery Act coin & big changes are planned
· The London May Anti-corruption summit and the proposed biggest change to UK corporate criminal law, ever…which will eclipse the impact of the Bribery Act.

And you have our personal guarantees, that we won’t discuss Brexit and what that might mean for bribery and corporate crime. At all.

Don’t miss this opportunity to hear Vivian Robinson QC, former general counsel to the UK’s Serious Fraud Office and now a partner in McGuireWoods London; Barry Vitou, partner in Pinsent Masons LLP’s London office; Richard Kovalevsky QC, 2 Bedford Row; and Julian Glass, Managing Director, FTI Consulting, as they answer your questions and address these key topics.

Our predictions for last year were eerily accurate. Can you really afford to miss it?

Alter ego/separateness litigation is sought to breach the defendant’s corporate structure in order to obtain access to the financial or other resources of the defendant’s subsidiaries. In order to determine separateness or “pierce the corporate veil,” the plaintiff is generally required to prove that the corporate form was ignored, controlled or manipulated to an extent that it was merely the alter ego of another person or entity and that the misuse of the corporate form would constitute a fraud or used to promote injustice. We will cover the three elements that courts look to in order to determine separateness: (1) the corporation is substantially controlled or manipulated by another; (2) the control was or will be misused to commit fraud or promote injustice and (3) the claimant suffered or will suffer injury as a result. We will also discuss factors that indicate whether affiliated companies should be treated as a single entity including:
•Undercapitalization;
•Fraudulent representation by corporation’s shareholders or directors;
•Use of the corporation to promote fraud, injustice or illegal activities;
•Commingling of assets and affairs;
•Failure to observe required corporate formalities;
•Other shareholder acts or conduct ignoring, controlling, or manipulating the corporate form
•Existence of common officers, directors, and employees;

This webcast will provide legal and accounting perspectives on determining separateness or piercing the corporate veil and will cover:
•Need for accounting expertise and issues to examine from an accounting perspective;
•Evidentiary basis and the federal rules of evidence;
•Permitted Uses including accounting expertise and expert opinions;
•Cases where alter-ego claim was made;
•Hypothetical case study

Law firms have now become primary targets for cyber-attacks. Along those lines, law firm clients have moved from trusting their law firms to safeguard their data to holding them to the same standard as any other service provider, expecting a mature and robust cybersecurity program. As discussed at last week’s Incident Response Forum in Washington, D.C., law firms face two critical and burning questions:

1. What are the best and most appropriate cybersecurity solutions for law firms? and

2. What should law firms be doing right now to manage the risk of the inevitable cyber-attack?

Although data breaches are preordained, law firms can still take important and thoughtful preemptive measures to exceed their client’s (now heightened) cybersecurity expectations and improve (rather than restrain) their business operations. But unfortunately, the cybersecurity marketplace is a chaotic morass replete with a mishmash of consultant jargon pitching dubious panaceas and dire doomsday scenarios. This webcast aims to make sense of all of the confusion and concentrate on how law firms can:

--Identify cybersecurity vulnerabilities;
--Remediate issues;
--Improve processes and data protection;
--Beef-up enterprise security posture with practical and realistic solutions; and
--Take preemptive steps not only to insure adequate preparation for the latest data breaches, but also to assure sufficient compliance amid increasing regulatory, governmental (and client) scrutiny.

This webcast will introduce participants to the basics of the earnout as an element of the purchase price in M&A transactions and the common disputes that arise from earnout provisions.

The panel will discuss the intricacies of earnouts, legal considerations and recent case law relating to earnouts, the mechanics of earnouts, common disputes involving earnouts, the valuation and recognition of earnouts, and more. This program will also address the role of the neutral accounting arbitrator in resolving an earnout dispute.

The program is geared to lawyers involved in mergers and acquisitions.

In addition to becoming a compliance prerequisite, so-called “penetration testing” and “risk and security assessments” also create added opportunities to:

•determine where cybersecurity vulnerabilities lie;
•remediate issues;
•improve processes; and
•beef-up enterprise security posture.

The emerging penetration testing marketplace, however, is a chaotic morass, with a mishmash of consultant jargon painting varying doomsday scenarios and pitching uniquely branded panaceas.

This webcast walks GCs, CFOs and CCOs through the “pen testing” maze, providing key insights on how to engage the right blend of capable, trustworthy and innovative cybersecurity professionals.