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

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.

Although data breaches are inevitable, companies should still take important and thoughtful preemptive measures to meet their compliance obligations and to help prepare themselves to respond.

This webcast focuses on preemptive steps that GCs, CFOs and CCOs should implement today to not only insure adequate preparation for the latest forms of data breaches, but also to assure adequate compliance amid increasing regulatory scrutiny.

In this annual webcast, our panel will analyze key developments in SEC enforcement and notable events from 2015, and will discuss what to look for in 2016. Among other items, the panel will address:

•Results of litigation and current issues arising from SEC administrative proceedings;
•Actions involving financial fraud, gatekeepers, market structure, and investment management;
•The impact of the Whistleblower Program, use of technology, and requiring admissions in settlements;
•Significant “first ever” cases in a broad range of areas; and much more

A data breach responder is like a high-tech plumber. Just like a plumber does when a house’s basement floods, data breach responders identify the cause of a breach; combine forces to contain its damage; and collaborate on remediation.

But while a plumber can provide reasonable assurances that the basement will not flood again, a data breach responder cannot promise the same about a future data breach. In fact, another breach is not only possible, it’s likely. That is why data breaches don’t define victim companies – how they respond to data breaches does.

Yet while today’s news outlets provide an endless stream of data breach reports, rarely is an actual incident response ever discussed. Understanding data breach response workflow not only helps a company prepare for a breach, it also helps a company manage cybersecurity risk overall. This webcast covers the most typical workflows that companies must undertake amid the incident response of a data breach.

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 fourth consecutive year, 2015 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. Indeed, SEC FCPA Unit Chief Kara Brockmeyer recently described Dodd-Frank’s whistleblower incentive provisions as a “game-changer” for FCPA enforcement. Meanwhile, the SEC’s Division of Enforcement brought an unprecedented enforcement action to discourage what it views as overly restrictive employee confidentiality agreements. And 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.

Featuring an experienced panel of plaintiff- and defense-side whistleblower and anti-corruption practitioners, including counsel to the whistleblower who received the largest award in Dodd-Frank’s history, this webcast will detail 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 the participant with practical tips for navigating the minefield of whistleblower complaints.

In this webcast, panelists from the economic consulting firm Nathan Associates will evaluate the market trends in securities class actions by analyzing aggregate investor losses stemming from alleged violations of the federal securities laws on all Rule 10b-5 cases that have been filed since the Halliburton decision. As part of this webcast, Nathan Associates will report regression-based monthly market capitalization losses, monthly aggregate Rule 10b-5 losses, average artificial stock price inflation for all public companies facing impeding litigation, and the RMC ratio (Rule 10b-5 Market Capitalization Loss Percentage).

Please join panelists Professor Stephen E. Christophe, Ph.D., a recognized authority on securities, and Nessim Mezrahi, principal, financial litigation, at Nathan. They will be prepared to comment on the trends and potential losses on all Rule 10b-5 cases that have been filed since the Halliburton ruling last summer.

This webcast will cover fundamental concepts of accounting, focusing on issues that lawyers often encounter. Our panel of accounting experts will cover the three financial statements–balance sheet, income statement, and cash flows–and describe the components that are used to create them. In addition, our panel will cover how to derive meaningful conclusions from the data through ratio and trend analysis.

In addition to understanding financial statements, this webcast will cover common Generally Accepted Accounting Principles and International Financial Reporting Standards.

The DPA party invitation letters have been sent.

On the eve of the fifth anniversary of the Bribery Act, our panelists will take a look back at the Bribery Act’s pre-school years and what the future looks like.

A lot of water has passed under the bridge since the Bribery Act was passed in the last days of the last Labour government in the UK. Two general elections later and another change of government, the political and legal landscape looks a lot different:

This webinar will cover:

--Deferred Prosecution Agreements: now or never?
--The Bribery Act: How long until a corporate prosecution?
--Failure to prevent fraud offence: Will this new law be passed?
--Penalties: Jail time and fines

Please join us. We look forward to catching up!