Dodd-Franks, The SEC and Executive Compensation

Prior articles have reviewed the provisions of Dodd-Frank which focus on SEC Enforcement ( here ) and rule making ( here ). Other provisions of the Act impact the Commission's authority regarding executive compensation. In part, these are discussed by Chairman Schapiro in her remarks at the Center...

Thomas Gorman on the SEC's Expanded Role in Corporate Governance after Dodd-Frank

The federal securities laws have traditionally focused largely on disclosure, leaving corporate governance to state law. Nevertheless, Dodd-Franks expands the Commission's role in corporate governance in three key areas. This is consistent with the impact of the legislation on the SEC's Enforcement...

The SEC’S First Deferred Prosecution/Cooperation Agreement: A New Approach?

The SEC and Tenaris S.A resolved an FCPA case with a deferred prosecution agreement. It is the first deferred prosecution agreement under the initiative the Commission announced last year. The company also settled FCPA charges with the Department of Justice, entering into a non-prosecution agreement...

Unfair SOX 304 Clawback?–Beazer CEO Pays for Restatement without Fault

The SEC recently announced that it reached a settlement with Beazer CEO O'Leary requiring O'Leary to pay back to Beazer more than $1.4 million that he received during a time period when Beazer's financial statements were allegedly misstated. It is undisputed that the SEC did not charge...

The End is Nigh for Facilitation Payments – Get Ahead of the Breeze

Last summer, an article was published in the University of Pennsylvania, Journal of Business Law , entitled " The OECD's Call for an End to the 'Corrosive' Facilitation Payments and the International Focus on the Facilitation Payments Exception under the Foreign Corrupt Practices Act...

Why Is The SEC Pursuing Deloitte Shanghai? Looks Like It’s Personal

The Securities and Exchange Commission is rattling a dull sabre again towards Shanghai-based Deloitte Touche Tohmatsu CPA Ltd. for its refusal to provide the agency with audit work papers related to Longtop, a China-based company under investigation for potential accounting fraud against U.S. investors...

Big Four Auditors and Jury Trials: Not In The U.S.

Deloitte has settled a shareholder case against the firm stemming from their role as auditor of Bear Stearn s, one of the early financial services firms to fail, be force sold or nationalized during the financial crisis of 2008-2009. Deloitte was dangerously close to having to answer for its actions...

Supreme Court Unanimously Rejects SEC’s Statute Of Limitations Position

This article was reprinted with permission from FCPA Professor February's issue of the month is the statute of limitations in SEC enforcement actions. 28 U.S.C. 2462 provides as follows. "Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement...

Don’t Believe the Hype on SEC Statute of Limitations

This article was reprinted with permission from FCPA Professor The statute of limitations is a fundamental legal principle setting a fixed period of time to file a lawsuit after a claim arises. Last term in Gabelli v. SEC [ an enhanced version of this opinion is available to lexis.com subscribers...

More About the D&O Insurance Implications of the SEC's New Admissions Wrongdoing Requirements

Numerous questions surround the SEC’s new policy requiring enforcement action defendants in “egregious” cases to admit to wrongdoing in order to settle with the agency, rather than simply agreeing to neither admit nor deny the agency’s allegations. As I discussed in a prior post...

The SEC’s AgFeed Complaint: No Restatement Means No Sarbanes-Oxley Clawback

The Securities and Exchange Commission says it’s stepping up scrutiny of corporate accounting and disclosure fraud. That means going after gatekeepers like auditors, lawyers, and directors under an aptly named initiative Operation Broken Gate . The AgFeed case is the mother lode for an SEC that...

A Whole Bunch of Interesting Litigation and Enforcement Statistics and Analyses

A single case may involve a host of interesting issues but sometimes the important lessons can only be discerned when many cases are considered collectively. This past week saw the release of some interesting analyses of aggregate litigation and enforcement statistics, each set of which told some interesting...