August 16, 2005

Whistleblower Hotlines: Conflicting Obligations in France; Confusion in Germany

Many members are asking about the recent decisions in France and Germany regarding whistleblower hotlines. In France, the French Data Protection Authority (aka “CNIL”) has rendered two decisions prohibiting a subsidiary and division of two US companies – McDonalds and Exide Technologies – from implementing anonymous reporting systems. These systems were developed in compliance with Rule 10A-3, which the SEC adopted to comply with Section 301 of Sarbanes Oxley. The CNIL believes these hotlines violate French privacy law due to the anonymous nature of the accusers permitted by the hotlines.

Meanwhile, a German authority has struck down Wal-Mart’s code of ethics, but not based on any kind of substantive rationale – rather, it appears to be due to a procedural snafu that turned on the failure of the company to consult with the German Works Council before implementing their code of ethics in Germany.

We have posted a number of law firm memos analyzing these overseas problems in our “Whistleblowers” Practice Area – and Tom White and Carrie Wofford of Wilmer Cutler Pickering Hale and Dorr have graciously provided copies of the two French CNIL opinions, including informal translations of them into English.

A number of groups, such as the Privacy Matters Committee of the World Law Group, have approached the French and German authorities – as well as the SEC and the NYSE – but right now, these issues are still lurking as there has not been any further word from any of these regulators. More inevitably to come…

New Form 144 Posted

One of our more popular sample documents is a Word version of Form 144. We have posted a new one that reflects changes in the form that the SEC has made (the SEC might have made these form changes a while ago; let me know if you ever see any outdated content on the site).

Speaking of Rule 144, don’t forget that we have a “Rule 144 Q&A Forum,” where members post Rule 144 questions – and long-time practitioners Bob Barron and Jesse Brill endeavor to provide some guidance. You can access this Forum on home page from the tool bar at the top.

Doing M&A Inhouse

Some of the younger lawyers out there might wonder if they could land a job in-house that would allow them to do M&A. In this podcast, George Villasana, Senior Counsel – Corporate Law of AutoNation (who has also worked in two different law firms and at the SEC), describes what it’s like to do M&A in-house, including:

– What types of M&A activities he undertakes?
– What is his daily life like?
– How he found his job?
– How being in-house compares to being in a firm?
– How being in-house compares to working at the SEC?