AttorneysEd Center

Financial fraud has long been an enforcement priority for the SEC, yet in recent years the number of cases has steadily declined as the Enforcement Division focused on insider trading and Ponzi schemes. Since new SEC Chair Mary Jo White took over, the Commission has indicated that it is preparing to address this critical area and is bolstering its investigative tools by creating new search programs to analyze filings made with it. This is apparently the first step in adding to the SEC’s tools in this area. In this program especially for in-house and outside corporate, securities and white collar attorneys, Tom Gorman helps you prepare your company or clients to avoid being caught up in this new SEC trend. Topics include analysis of historic SEC trends in this area, and the approach being used to develop the new tools and plot future directions that the Enforcement Division is

The Second Circuit's recent decision in Bechtel v. Administrative Review Board, No. 11-4918-ag (March 5, 2013), announced that it would also follow the burden-shifting framework adopted by other Circuits to whistleblower retaliation claims under the Sarbanes-Oxley Act. Join Courtney Worcester for a discussion of Bechtel and other Circuit decisions and what they mean for employers facing retaliation claims.

In the wake of Dodd-Frank, complaints by whistleblowers are on the rise and are unlikely to decrease anytime soon. And as recent events make clear, companies need to be prepared for whistleblowers going to the press. Join Roger Lane, Michael Thompson and Courtney Worcester as they walk through the top ten tips internal and external counsel should follow in conducting an internal whistleblower investigation to mitigate both legal exposure and costs as well as discuss how to deal with, and respond to, leaks and other public incidents of whistleblowing.

When venture capital firms invest in portfolio companies, it is common for a general partner of the fund to take a position on the company's board. It is understood that the general partner owes a fiduciary duty to the company's stockholders, but what about the venture capital fund itself? Under what circumstances may the fund be found to owe fiduciary duties to the company's other stockholders? What are the limitations on what the fund can do? May the fund exercise its contractual rights with impunity or are there limitations? Join Roger Lane and Courtney Worcester as they explore these questions in this evolving area of the law and provide practical advice for addressing them to counsel who advise venture capital funds and portfolio companies.

The SEC is expected to continue its focus on the private equity industry in 2013. In this program of particular interest to attorneys who advise private equity firms, Roger Lane and Courtney Worcester provide: • an overview of several areas that the SEC is expected to concentrate on, including valuation practices during a fundraising period; conflicts of interest; and the fiduciary duties owed by the Chief Operating Officers and Chief Financial Officers of private equity funds, and • best practices to avoid SEC scrutiny or mitigate the risks when you can't.

Ed Fishman of K&L Gates highlights ethical challenges that are often faced by in-house counsel and outside counsel when conducting internal investigations relating to conduct that has occurred outside the U.S. Such cross-border investigations have become critical for multinational companies that may be subject to a wide range of laws with extraterritorial application, including securities, anti-corruption, export control and international trade laws. However, investigative counsel must be aware of various ethical challenges that can arise when conducting cross-border investigations. The topics covered include the differences between attorney-client privilege rules in the U.S., the E.U. and other jurisdictions; evidence collection challenges as a result of the E.U. Directive on Data Privacy; local employment law considerations when considering disciplinary action against employees outside the U.S.; and the tension that can arise in joint representation situations between Model Rule of Professional Conduct 1.4 (the duty to communicate with

The DOJ and the SEC have issued their new guidance on the FCPA after more than a year-long wait. The new 100-page plus booklet, which contains chapters and sections on virtually every key topic from jurisdiction to who is a foreign official to compliance, was written in the wake of comments by the OCED suggesting that additional guidance be given to the market place. At the same time business groups were clamoring for reform, claiming, among other things, that a procedures defense should be added to the statute, that the definition of foreign official needed to be clarified, and that the issue of successor liability needed to be addressed. Congress held repeated hearings and draft legislation was introduced. But now that the guidance has arrived, along with a virtual blizzard of comment, is there really anything new and/or important? Join Tom Gorman as he addresses the key issues, including

Ed Fishman of K&L Gates highlights ethical issues that must be considered by internal and external counsel when conducting internal corporate investigations. The importance of conducting internal corporate investigations continues to increase as a result of U.S. government enforcement initiatives (including Sarbanes-Oxley and the Dodd Frank Act) and civil litigation trends. Companies can obtain very significant benefits by properly and effectively conducting an internal investigation. However, investigative counsel must be aware of common ethical challenges that may arise when conducting such investigations. The topics covered in this program include conflict of interest issues (including the potential hazards of joint representation under Model Rule 1.13(g)), attorney-client privilege issues (including the importance of providing an "Upjohn" warning and the consequences of privilege waiver), cooperation credit and remediation considerations (under the U.S. Sentencing Guidelines, the DOJ Principles on Federal Prosecution of Business Organizations and the SEC Seaboard Report), and data

The reinvigorated SEC Enforcement program is creating trends which should be carefully watched by corporate officials since they may enhance their liability. Combining aggressive enforcement and traditional fraud-based theories with others such as negligence-based fraud, control person liability and strict liability, the SEC is expanding its reach while easing its overall burden of proof in many instances. In recent cases it has brought actions against independent directors claiming they lack independence and were liable for fraud since they missed “red flags,” financial fraud claims grounded in negligence-based fraud, control person claims against officers stemming from underlying FCPA violations and strict liability clawback actions to recover incentive-based compensations while admitting that the officer had no involvement in the underlying wrongful conduct. These kinds of cases, coupled with aggressive interpretations which push the edges of the law, put directors, officers and corporate employees at risk. Join Tom Gorman of Dorsey & Whitney LLP

The DOJ has declared that this is the “new era” of FCPA enforcement. The cost of settlement is spiraling upward, business organizations are conducting extensive and far-reaching investigations at great cost to win cooperation credit, and individuals are being targeted while longer and longer jail sentences are being demanded. Yet in court the DOJ seems to be faltering, and at the same time, business groups are demanding reform and Congress continues to hold hearings. Join Tom Gorman of Dorsey & Whitney LLP as he examines the trends behind this new era of FCPA enforcement in view of the repeated calls to amend the statute and the prospects for reform.