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Monthly Archives: June 2015

June 2, 2015

It’s Done: Romanek’s “The In-House Essentials Treatise”

Wrapping up a project that I feverishly commenced two years ago, we are happy to say the inaugural 2015 Edition of Romanek’s “The In-House Essentials Treatise” is done being printed. Here’s the 79 pages of our “Detailed Table of Contents” listing the topics so you can get a sense of the Treatise’s practical nature. You will want to order now so you can receive it as soon as possible.

With over 1400 pages, this tome is the definition of being practical. You can return it any time within the first year and get a full refund if you don’t find it of value.

Compliance Program Improvement: DOJ Gives Cooperation Credit for 1st Time

A few weeks ago, the DOJ made good on a promise made last fall to give credit to companies that improve their compliance programs when a Barclays plea deal included a provision along those lines. Here’s an excerpt from this memo:

For the first time, the antitrust division of the U.S. Department of Justice (DOJ) has awarded a company sentencing credit for implementing an effective compliance program after the start of an investigation. Getting credit for compliance efforts should not be as hard as space travel, but up until last week, a company’s chances for getting any credit (short of being the winner-takes-all leniency applicant) were no better than landing on the moon. Barclays PLC, along with four other investment banks, entered into a plea agreement with the DOJ on May 20, 2015, for its participation in the alleged FOREX cartel conspiracy to manipulate the price of U.S. dollars and euros exchanged in the foreign currency exchange (FX) spot market.

The sentencing credit is apparent from a single line in the plea agreement: “The parties further agree that Recommended Sentence is sufficient, but not greater than necessary to comply with the purposes set forth in 18 U.S.C. §§ 3553(a), 3572(a), in considering, among other factors, the substantial improvements to the defendant’s compliance and remediation program to prevent recurrence of the charged offense.”1 The four other major banks that entered into plea deals did not have this same provision, and it appears that they did not receive credit for their compliance programs.

Shareholder Engagement: ESG Style

In this 68-page guide, BlackRock & Ceres have teamed up to provide guidance for institutional investors on how to engage on sustainability issues. The guide includes tactics & case studies as 30 institutional investors describe their priorities and strategies they use to engage with companies across different asset classes, both internationally and domestically, on ESG matters. Here’s more from this Davis Polk blog

Meanwhile, as reported in the Society of Corporate Secretaries’ Alert, based on data from Proxy Insight (see pages 8-9), CalSTRS is one of the least likely of the public pension funds to support the election or re-election of directors – supporting management nominees just 36.7% of the time. CalSTRS is also almost twice as aggressive as the next pension fund on the list identified as least likely to vote for management’s slate – the Illinois State Board of Investment – coming in at 67.4% support.

Sights & Sounds: “The Women’s 100 Conference” in DC

I’ll be blogging more about yesterday’s magical event in the near future. But I can’t resist posting this pic of the two men shepperding the event – my newly graduated high school son & me:

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– Broc Romanek

June 1, 2015

Whistleblowers: What Should You Do Now With Your Agreements?

Parsing through the dozens of memos about the SEC’s recent KBR action, law firms seem to vary about what you should be doing now with your agreements. The positions fall into one of these three camps: (a) KBR settlement language is sufficient; (b) KBR settlement language is overly broad; or (c) not sure at all what is sufficient. The SEC’s Enforcement Division seems to still be looking at – and asking – for agreements to review – but I believe that will settle down soon enough. I’ve just calendared a September webcast that includes the SEC’s Chief of the Whistleblower Office Sean McKessy to help us sort through these choices (and more).

Meanwhile, here’s an excerpt from this WSJ article entitled “Whistleblowers Find SEC Rewards Slow and Scarce”:

The SEC program pays out based on sanctions that have been collected, rather than the amounts imposed by a judge that are up to the agency to recover. That can leave whistleblowers with nothing to show for their efforts if the money has vanished in the fraud or if the perpetrator has fled beyond U.S. jurisdiction. So far, more than 10,000 tips have been submitted to the SEC whistleblower program, about 300 people have applied for awards and 17 payouts have been made, according to SEC data. An SEC spokeswoman declined to say how much money has been collected for any of the 658 enforcement actions the agency’s website lists as being potentially eligible for awards. She also declined to say how many, if any, of the pending award claims relate to cases in which no bounty is available, even if the claim is approved.

Montana Joins Massachusetts in Regulation A+ Challenge

As I added late to last week’s blog, Montana has joined Massachusetts in suing the SEC over Regulation A+. Here’s the Montana scheduling order – the Montana & Massachusetts cases have been consolidated by the US Court of Appeals for DC…

Tomorrow’s Webcast: “Escheatment Soup to Nuts: Handling Unclaimed Property Audits & More”

Even though contingent fee audits in the escheatment area have been around for some years now, companies continue to be shocked when they find themselves subject to one. Tune in tomorrow for the webcast – “Escheatment Soup to Nuts: Handling Unclaimed Property Audits & More” – to hear Reed Smith’s Diane Green-Kelly, Keane’s Valerie Jundt and Exelon’s Scott Peters cover everything you need to know about escheatment, from the basics to handling the growing number of unclaimed property audits.

Cleary Gottlieb just created this chart with the status of the SEC’s Dodd-Frank rulemakings fyi

Our June Eminders is Posted!

We have posted the June issue of our complimentary monthly email newsletter. Sign up today to receive it by simply inputting your email address!

– Broc Romanek