July 21, 2006

Packaging the Corporate Investigation for Prosecution

In this podcast, John Kocoras, Managing Director and Regional Counsel in the Business Intelligence & Investigations division at Kroll, provides some insight into white-collar prosecution developments, including:

– What trends do you see in white-collar prosecutions?
– What effects do you see these trends having on companies?
– What investigative tips can you give in-house counsel when they are advised of potential wrongdoing by high-level employees?

Forward-Looking Information Safe Harbor: Incorporation By Reference Case

From “The 10b-5 Daily Blog“:The PSLRA’s Safe Harbor for forward-looking statements is designed to encourage companies to provide investors with information about future plans and prospects by limiting their potential liability for these statements. Under the first prong of the Safe Harbor, a defendant is not liable with respect to any forward-looking statement if it is identified as forward-looking and is accompanied by “meaningful cautionary statements” that alert investors to the factors that could cause actual results to differ.

In the case of oral forward-looking statements, the PSLRA specifically provides that the meaningful cautionary statements can be incorporated by reference in a readily available written document. The statute is silent, however, about whether this is also true for written forward-looking statements. A surprisingly small number of courts have addressed this issue, but the trend appears to be in favor of finding that a company’s incorporation by reference is sufficient.

In Yellen v. Hake, 2006 WL 1881205 (S.D. Iowa July 7, 2006), the court addressed a securities class action brought against Maytag Corp. The court found that “[w]hile the Safe Harbor provision does not explicitly provide for incorporation by reference for written forward-looking statements” it is implicit in Congress’ direction that courts consider “all information and documents relevant to a determination of whether a defendant has given adequate warnings.” Accordingly, the court agreed to consider warnings contained in Maytag’s 2004 Annual Report that were incorporated by reference in the press release and investor presentations that allegedly contained false or misleading forward-looking statements.

Michael Eisner: He Ain’t No Larry King

More summer fun…flipping around a few nights ago and came across former Disney CEO Michael Eisner’s new cable talk show: “Conversations With Michael Eisner.” From this article, it doesn’t seem like the show has “legs.”

It was painful to watch. Eisner clearly is not a natural at drawing others out; not surprising for a guy used to having his way for decades. I’m sure I was projecting onto him, but I half-expected him to reach out and grab Goldie Hawn by the throat – even though they seemed to be friends. Here are some pretty funny Eisner anecdotes from