Key Issues Facing Boards of Directors: New SEC Enforcement Initiatives & Corporate Governance Risks in the U.S. & Latin America

Transcription

1 Key Issues Facing Boards of Directors: New SEC Enforcement Initiatives & Corporate Governance Risks in the U.S. & Latin America May 14, 2013 Intercontinental Miami Miami, FL Including speakers from:

2 Table of Contents 1. Key Issues Facing Boards of Directors: New SEC Enforcements Initiatives and Corporate Governance Risks PowerPoint Presentation 2. Speaker Biographies & Contact Information a. Alvin Davis, Squire Sanders (US) LLP b. Glenn Gordon, US Securities and Exchange Commission c. Joseph Weinstein, Squire Sanders (US) LLP d. Mona Clayton, PricewaterhouseCoopers e. Jane DiGioia, Monitor Liability Managers

3 Key Issues Facing Boards of Directors: New SEC Enforcement Initiatives and Corporate Governance Risks in the U.S. and Latin America May 14, 2013 Introduction Alvin B. Davis Squire Sanders (US) LLP Litigation Partner, Trial Lawyer Glenn S. Gordon SEC s Miami Regional Office Associate Regional Director Joseph C. Weinstein Squire Sanders (US) LLP Leader, Securities & Shareholder Litigation Practice Mona M. Clayton PricewaterhouseCoopers (PwC) Partner, Leader, Forensic Services practice in Latin America 2 Jane R. DiGioia Monitor Liability Managers (a WR Berkely company) Senior Claims Attorney

4 Agenda Introduction Alvin Davis, Squire Sanders (US) LLP Presentations and Discussions Glenn Gordon, US Securities and Exchange Commission Joseph Weinstein, Squire Sanders (US) LLP Mona Clayton, PricewaterhouseCoopers (PwC) Jane DiGioia, Monitor Liability Managers A Berkley Company Additional Questions and Answers Conclusion 3 Alvin B. Davis Alvin B. Davis focuses on complex litigation, arbitration and international dispute resolution - securities class actions, regulatory proceedings and a host of sophisticated contractual disputes. Alvin s clients include major national and international companies including utilities, manufacturers, insurers, law firms, airlines and non-us governments and agencies. Alvin litigates regularly at the trial and appellate levels on behalf of clients, and he also is frequently engaged as a private arbitrator or mediator in a wide range of commercial disputes. Recognitions: Florida Super Lawyers, The Legal 500 US and Benchmark: Litigation. The Best Lawyers in America, Chambers USA, Florida Trend magazine, South Florida Legal Guide 4

5 U.S. Securities & Exchange Commission s Perspective May 14, 2013 Glenn S. Gordon SEC s Miami Regional Office T GordonG@SEC.GOV Glenn S. Gordon Glenn S. Gordon has led the enforcement program for the Miami Regional Office of the Securities and Exchange Commission since May Overseen a number of high-profile investigations and enforcement actions in all of the Commission s major program areas. Headed the office s examination program for several years simultaneous with his enforcement responsibilities. Glenn received the SEC s Irving M. Pollack Award, one of the Commission s highest awards for public service, in He also received the SEC s Capital Markets Award, which recognizes work that helps preserve the integrity of the country s capital markets. Mr. Gordon joined the SEC after serving as a judicial law clerk in the United States Court of Appeals for the Eleventh Circuit and practicing as a litigation attorney in New York City. 6

6 Presentation Brief description of the SEC s Miami Regional Office and its Recent Significant Cases Financial Crisis Cases Winding Down Likely New Areas of SEC Enforcement Focus Foreign Corrupt Practices Act Special Relevance to Conducting Business in Latin America/Miami Regional Office FCPA Cases Arising Out of Latin America Holding Individuals Accountable Importance to the SEC and Relevance to Corporate Officers and Directors The SEC Whistleblower Program and Results to Date Value of Cooperation and Self-Reporting/Lessons from the SEC s Recent Non-Prosecution Agreement with Ralph Lauren Corporation for FCPA Violations 7 Responding To An SEC Investigation May 14, 2013 Joseph C. Weinstein Squire Sanders (US) LLP T joe.weinstein@squiresanders.com

7 Joseph C. Weinstein Joseph C. Weinstein heads Squire Sanders Securities & Shareholder Litigation Practice. Joe has more than 25 years of experience handling high-stakes, complex disputes in courts and arbitrations nationwide, including securities fraud, shareholder derivative, directors and officers liability, antitrust/unfair competition lawsuits and class actions. Joe also represents and advises clients on corporate compliance matters, conducts related internal investigations and represents clients in governmental investigations. Prior to joining Squire Sanders, Joe served as general counsel of a diversified Fortune 500 transportation holding company, where he was responsible for all aspects of its and its subsidiaries legal affairs. Recognitions: The Best Lawyers in America, The Legal 500 US, and Ohio Super Lawyers. 9 Laws Enforced By SEC Securities Act of 1933 Sarbanes-Oxley Act of 2002 Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 Foreign Corrupt Practices Act Regulation FD Rule 10b Trust Indenture Act of 1939 Securities Exchange Act of 1934 Investment Advisers Act of Jumpstart Our Business Startups Act of 2012 Rules and Regulations

8 SEC Investigations Likely Targets Public companies big and small Investment advisers Broker dealers Municipalities Individuals 11 SEC Investigations SEC Budget FY 2013 ~ $1,500,000,

9 SEC Investigations Corporate Consequences Individual Consequences 13 SEC Investigations Be Prepared: The Value of a Robust Compliance Program Code of Corporate Conduct Business Ethics Policy FCPA Policy Insider Trading Policy 14

10 SEC Investigations Potential Wrongdoing Company-Discovered Internal Investigations 15 SEC Investigations Internal Tension and Conflicts: Dealing With Disparate Interests 16

11 SEC Investigations Self Reporting: Should you or shouldn t you? 17 SEC Investigations When the SEC calls: What triggers an SEC investigation? Value of cooperation 18

12 SEC Investigations It s not over until it s over, and even then intended and unintended consequences Settlements with SEC Parallel Proceedings Private securities lawsuits Shareholder suits 19 Accounting Perspective May 14, 2013 Mona M. Clayton PricewaterhouseCoopers (PwC) T +1 (305) mona.clayton@br.pwc.com

13 Mona M. Clayton CFE, CPA, CFF Mona Clayton leads PwC s Forensic Services practice in Latin America. Mona has worked with trial lawyers and prosecutors on both civil as well as criminal matters. Her experience includes forensic accounting, fraud investigations, FCPA assessments and FCPA due diligence, breach of contract, compliance plan development, as well as other litigation matters. She has extensive experience leading investigations in foreign locations, particularly in Latin America and Asia, including: Mexico Venezuela Argentina Colombia Brazil Trinidad Ecuador India China Indonesia 21 SEC & DOJ Enforcement Trends 734 enforcement actions in 2012; second highest number in a single year (compared to 735 filed in 2011) Eight of 23 cases with SEC involvement in 2012 contained accountingrelated allegations, e.g. treatment of vendor rebates/volume discounts, FCPA violations, inventory irregularities and internal control allegations Recent federal court decisions may favour defendants or to the detriment of the investor and may have impacted the plaintiffs bar Other avenues now include Whistleblower claims as avenues for retribution which may attract more plaintiff attorneys SEC s Annual report for the fiscal year ending November 2012, identified 3,000 whistleblower reports were received in the fiscal year Cases involving foreign filers decrease to 19% of all cases; 32 filings in 2012 compared to 61 filings or 32% in Source: 2012 Securities LitigationStudy - PwC

14 Accounting Cases Cases alleging accounting fraud decreased from 74 in 2011 to 51 in 2012 Health, energy and financial service sectors saw the highest number of accounting related cases Financial services case brought in 2012 included elements consistent with those seen during the financial crisis, e.g. valuation and reporting of liabilities, revenue recognition, disclosures relating to fund valuation, etc. Potential emerging trend involving disclosure related cases involving accounting cases Centered on comparing past statements to subsequent performance Percentage of accounting cases citing specific issues in 2012: Internal controls 61% Revenue Recognition 25% Estimates 25% Overstatement of assets 22% Understatement of liabilities and expenses 18% Other 10% Purchase accounting 8% 23 Source: 2012 Securities LitigationStudy - PwC Accounting Settlements 2012 Accounting-related settlements increased in 2012 for the first time in five years, however the total value of settlements decreased Total value of settlements in 2012 fell 58% to $1.0 billion compared to $2.4 billion in 2011 Represents the lowest annual total settlement since 1998 Average accounting related settlement in 2012 was $32 million, a decrease of 56% from $73 million in Source: 2012 Securities LitigationStudy - PwC

15 Corporate Executives Potential increased scrutiny of 10b5-1 plans and corporate executives trading in their own securities Increased regulator interest may spark piggyback securities litigation filed by the plaintiffs bar Percentage of US federal securities class actions naming particular officers or committees in 2012: CEO/94%; CFO/70%; Chairman 61%; Director 67%; Audit Committee/10% 25 Source: 2012 Securities LitigationStudy - PwC SEC/FCPA Actions Insufficient Controls (January 2009-December 2012) Types of Internal Control gaps referenced in terms of percentages: Account Classification/Transparent Descriptions:100% Management Oversight and/or Override: 96% Third Party Due Diligence: 81% Adequate Supporting Documentation: 69% Cash Management: 67% 26 Source: FCPA Internal Controls Amid Increased Expectations, April 11 th PwC

16 FCPA Guidance/Resources Potential resources for FCPA best practices include: UK s SFO website, Corruption Indicators FCPA Resource Guide, The FCPA: Accounting Provisions ABA, Red Flags for FCPA Record Keeping & Accounting Violations DOJ Opinion Procedure Release 04-02/ Elements of a Rigorous Anti- Corruption Compliance Code US Sentencing Guideline (Section 8B2.1) November 2010; Elements of an Effective Compliance and Ethics Program 27 FCPA/Anti-Bribery Latam Other countries are passing anti-bribery legislation, so it is not just an FCPA landscape Companies can be running behind on their compliance programs if they are designing their program to be just FCPA Third parties continue to be a risk area for regulator enforcement. Third party management and due diligence processes are not optional they are expected. Many companies are still lacking maturity with rolling out compliance programs with international expansion during preacquisition and also post-acquisition implementation PricewaterhouseCoopers LLP, a Delaware limited liability partnership. All rights reserved. PwC refers to the US member firm, and may sometimes refer to the PwC network. Each member firmis a separate legal entity. Please see for further details. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.

17 Directors & Officers Liability Insurance Perspective May 14, 2013 Jane R. DiGioia, Esq. Monitor Liability Managers T , ext. 594 JDigioia@monitorliability.com Jane R. DiGioia Bio Jane R. DiGioia is a Senior Claims Attorney with Monitor Liability Managers A Berkley Company. After law school, she spent five years with Lord, Bissell & Brook where her practice involved representing and counseling insurers in connection with D&O, environmental and other insurance policies, and defending litigation against a public utilities company. Jane also spent eight years with a boutique insurance defense firm, where she defended and tried cases involving insurance coverage, personal injury and professional liability. She has been with Monitor (an underwriting manager) since 2002 and currently handles claims involving D&O coverage for public and private companies. She has also handled claims under Employment Practices Liability policies, Lawyers Professional Liability policies, and D&O policies issued to non-profit organizations. 30

18 Claims Made Policy: Claim or Potential Claim? 31 The Policy Defines Claim as: A writing Monetary or non-monetary relief 32

19 Examples Lawsuit Letter Memo Criminal indictment SEC investigation 33 Claim = Anything in writing Monetary or non-monetary relief A Claim! 34

20 The Insuring Agreement Claim... first made Policy Period Insured Wrongful Act Loss Notice 35 The Insuring Agreement First made When is a claim considered first made? 36

21 Claim is First Made Upon: Receipt of letter Receipt of lawsuit Receipt of SEC subpoena Grand jury subpoenas? 37 Claims Made Policy It is the Claim that triggers coverage, not the event. 38

22 The Insuring Agreement Who is an insured? 39 Who is an Insured? Directors Officers Employees (sometimes) Spouses and domestic partners 40

23 Insureds Past Present Future 41 Who is an Insured? The Company for Securities Claims ONLY 42

24 The Insuring Agreement Wrongful Act 43 Wrongful Act Capacity or by reason of their status as Insured Persons 44

25 Damages Some things are not considered damages Taxes Civil or criminal fines Penalties Uninsurable by law 45 The Insuring Agreement Notice 46

26 Notice During the Policy Period or Within a certain period of time thereafter 47 Notice If notice is not timely, what happens? Doesn t insurer have to show prejudice? 48

27 SEC Investigations Informal letter Formal order; subpoena Who is covered? 49 Exclusions The D&O Policy was not intended to cover: 50

28 Exclusions When the Company sues a D&O; or When someone sues a D&O on behalf of or in the right of the Company 51 Exclusions As a D&O of a different entity or company Situations do occur when Claims allege D&O acted in more than one capacity. What happens then? 52

29 Exclusions The usual suspects: Fraud Personal Profit But, a defense is provided until 53 Exclusions Physical damage to property Bodily injury These are usually covered under other policies, e.g.: CGL, business policy, auto, worker s comp. 54

30 How might coverage be expanded? 55 Checklist Claim is more than a lawsuit Timely notice Consider giving notice of a potential claim Exclusions are usually covered by another policy 56

31 Questions? 57 Continuing Education Please remember to fill out and hand in: Program Evaluation sheet Affidavit of Attendance sheet These materials can be found under the Continuing Education tab of your booklets. You must return both of these forms to the registration table in order to be eligible to receive CLE or CPE credit. 58

32 Alvin B. Davis Partner, Miami Squire Sanders (US) LLP Practice Focus Litigation Appellate & US Supreme Court Securities & Shareholder Litigation Commercial Litigation Financial Services Litigation Products Liability Litigation Education Yale University, LL.B.,1967 Syracuse University, A.B., 1964 Admissions Florida District of Columbia New York Alvin B. Davis legal practice focuses on complex litigation, arbitration and international dispute resolution in the areas of products liability, securities class actions, environmental claims, regulatory proceedings and a host of sophisticated contractual disputes. He litigates regularly at the trial and appellate levels on behalf of major national and international companies including utilities, manufacturers, insurers, law firms, airlines and non-us governments and agencies. Alvin also is frequently engaged as a private arbitrator or mediator in a wide range of commercial disputes. In 2011 and 2012, Alvin was selected for inclusion in Florida Super Lawyers, published by Thomson Reuters, based on 12 indicators of peer recognition and professional achievement, and as one of the top 100 lawyers in Miami. In 2009 he was also listed in The Legal 500 US and Benchmark: Litigation. Alvin has been listed in The Best Lawyers in America since 1991 and has appeared in Chambers USA each year since In addition, he has been recognized among Florida s Legal Elite by Florida Trend magazine each year since 2004 and listed among the top lawyers in Florida by the South Florida Legal Guide each year since Alvin previously served as the managing partner of Steel Hector & Davis and was managing partner of Squire Sanders Miami office from 2005 to 2010, following the combination of Steel Hector and Squire Sanders in Alvin lectures regularly to The Florida Bar through both the American Law Institute of the American Bar Association and Lorman Education Services. He is a member of the Dade County Bar Association, Bar Association of the District of Columbia and American Bar Association. REPRESENTATIVE EXPERIENCE Serving as lead Florida counsel in multistate Clean Air Act litigation against the Environmental Protection Agency in the United States Circuit Court for the District of Columbia, relating to an amendment on pollution limitations. Serving as lead trial and appellate counsel in the representation of a Dominican Republic-based manufacturer to recover funds taken in fraudulent currency exchange transactions. Serving as co-lead counsel in an arbitration proceeding involving ownership interests in geothermal generation facilities and defects in the related generation equipment for the government of El Salvador. Serving as lead trial and appellate counsel in a dispute over the calculation of millions of dollars of annual franchise fees to be paid by a utility to a county government. Serving as national lead trial counsel in defense of a medical products manufacturer regarding an implantable medical device.

33 Serving as lead counsel for a major Florida utility company before the Florida Supreme Court in a dispute involving attempts by the Florida Public Service Commission to deregulate the wholesale power market. Defending successfully a major paint product manufacturer in a sevenweek federal trial for the breach of a distributorship agreement. Serving as lead counsel for one of the country s largest daily newspapers in successful enforcement of Florida s Public Records Act against the construction manager of a massive airport renovation project. Serving as lead counsel for airline insurers in successful defense of pollution claims at Miami International Airport. Serving as lead committee counsel to an independent directors committee in shareholder derivative securities claims. Serving as regional lead trial counsel in a series of complex medical product liability lawsuits at trial and appellate levels. Serving as lead counsel for a major US-based airline in a US$4.6 billion dispute over redevelopment of Miami International Airport. Serving as lead counsel for a major Florida utility company in a series of electronic and magnetic field (EMF) cases alleging that the utility s power lines caused cancer. Serving as lead counsel at trial and appellate levels in a Florida county s effort to impose a privilege fee on utility facilities declared unconstitutional. Defending successfully a large bank against claims of misappropriation of intellectual property and theft of trade secrets in a federal court jury trial. Defending successfully a New York bank renovating a Miami commercial property it had foreclosed upon against claims of constructive eviction and breach of covenants. Serving as lead counsel for clients including an international vehicle rental company and a major Florida utility in several significant antitrust cases dealing with a wide range of federal and state antitrust and unfair trade practice issues. Regularly arguing federal and appellate court appeals including appeals from bankruptcy rulings. Serving as lead appellate counsel in a series of appeals pertaining to tobacco litigation. Serving as lead trial counsel and appellate counsel in complex lender liability and financial institution cases. Serving as lead trial counsel in defense of claims against liability pertaining to allegations of childhood cancer. Acting as a private mediator instrumental in designing and structuring several successful settlements of large class action securities cases in federal court and coordinating the settlement effort.

34 Glenn S. Gordon Associate Regional Director (Enforcement) U.S. Securities and Exchange Commission, Miami Regional Office T GordonG@SEC.GOV Glenn S. Gordon has led the enforcement program for the Miami Regional Office of the Securities and Exchange Commission since May During his tenure at the SEC, Mr. Gordon has overseen a number of high-profile investigations and enforcement actions in all of the Commission s major program areas. In addition, Mr. Gordon also headed the office s examination program for several years simultaneous with his enforcement responsibilities. Mr. Gordon received the SEC s Irving M. Pollack Award, one of the Commission s highest awards for public service, in Mr. Gordon had previously received the SEC s Capital Markets Award, which recognizes work that helps preserve the integrity of the country s capital markets. Mr. Gordon joined the SEC after serving as a judicial law clerk in the United States Court of Appeals for the Eleventh Circuit and practicing as a litigation attorney in New York City. He is a cum laude graduate of Cornell Law School and received B.A. and B.S. degrees from the College of Arts and Sciences and the Wharton School of the University of Pennsylvania.

35 Joseph C. Weinstein Partner, Cleveland Squire Sanders (US) LLP T joe.weinstein@squiresanders.com Practice Focus Litigation Securities & Shareholder Litigation Anticorruption Compliance & Foreign Corrupt Practices Act Commercial Litigation Class Action & Multidistrict Litigation Financial Services Litigation Products Liability Litigation Education Case Western Reserve University, J.D., Order of the Coif, 1983 Case Western Reserve University, B.A., Phi Beta Kappa, 1980 Admissions Ohio United States Supreme Court United States Courts of Appeals for the Third, Fourth, Fifth, Sixth and Seventh Circuits United States District Courts, Northern and Southern Districts of Ohio, District of Colorado and Southern District of Texas Joseph C. Weinstein leads Squire Sanders Securities & Shareholders Litigation Practice. Joe has more than 25 years of experience handling high-stakes, complex disputes in courts and arbitrations nationwide. His extensive experience covers a wide range of subjects including complex business transactions, contract disputes, securities fraud, shareholder derivative, directors and officers liability, antitrust/unfair competition, product liability and consumer fraud. He regularly serves as lead counsel in class actions and in multidistrict litigation. Joe also represents and advises clients on corporate compliance matters, conducts related internal investigations and represents clients in governmental investigations. Prior to joining the firm, Joe served as general counsel of a diversified Fortune 500 transportation holding company, where he was responsible for all aspects of its and its subsidiaries legal affairs. Using this business background, Joe s approach is to find practical, effective solutions to clients legal problems. Joe is a member of the American Bar Association s Antitrust Law, Tort Trial, and Litigation Sections, as well as various state and local bar associations. Joe has been honored as an Ohio Super Lawyer by Thomson Reuters each year since its inception. He has been listed in The Best Lawyers in America since 2010 and is also listed in The Legal 500 US for his product liability expertise. REPRESENTATIVE EXPERIENCE Successfully defending corporations and their officers in securities fraud, shareholder derivative and related ERISA litigation. Serving as national coordinating counsel defending a Fortune Global 500 corporation in hundreds of product liability suits and class actions nationwide. Successfully defending national consumer fraud and product liability class actions.

36 Mona M. Clayton CFE, CPA, CFF PricewaterhouseCoopers (PwC) T +55 (11) mona.clayton@br.pwc.com Mona Clayton is a Partner in the Forensic Services practice for PricewaterhouseCoopers currently on an international assignment in Sao Paulo (April 2009). She is responsible to lead and grow the Forensic Services practice in Latin America. Ms. Clayton has worked with trial lawyers and prosecutors on both civil as well as criminal matters. Ms. Clayton's experience includes forensic accounting, fraud investigations, FCPA assessments and FCPA due diligence, breach of contract, compliance plan development, as well as other litigation matters. Ms. Clayton has extensive experience leading investigations in foreign locations, particularly in Latin America. Her experience with investigations in Latin America began in She has conducted several FCPA/anti-corruption assignments and FCPA due diligence matters in the region. These investigations have been in locales such as: Mexico, Venezuela, Argentina, Colombia, Brazil, Trinidad, Ecuador, as well as India, China, Indonesia, and other parts of Asia. Ms. Clayton has developed and prepared instructional material and has conducted seminars and presented internationally on topics including FCPA, financial statement fraud and analysis, and fraud investigations. She is an instructor at national training courses for the firm and taught a graduate level fraud/forensic accounting course at DePaul University in Chicago for several years before her international assignment. Prior to joining the Forensic Services practice, Ms. Clayton worked in PricewaterhouseCoopers audit practice performing audits primarily for non-profit and manufacturing clients. She has over ten years of work experience in various accounting positions including that of corporate controller. Her broad business background combines with her education and experience to position her well to assist clients involved in complex international matters. Ms. Clayton graduated cum laude with majors in accounting and business management from the University of Indianapolis where she was selected as one of its Distinguished Alumni. She is a Certified Public Accountant, Certified Fraud Examiner, and a member of the American Institute of Certified Public Accountants as well as the Association of Certified Fraud Examiners. She had served as chair of the Litigation Services Committee for the Indiana CPA Society and served on the Professional Standards and Practices Committee for the Association of Certified Fraud Examiners and she is also co-author of the book A Guide to Forensic Accounting Investigation published by John Wiley & Sons. She is on the Board and Treasurer of Hagar USA, a non-profit development agency working with women and children victims of violence, abuse and human trafficking. In 2008, Ms. Clayton was honored by Crain's Chicago Business as one of Chicago's Women to Watch.

37 Jane R. DiGioia Senior Claims Attorney Monitor Liability Managers T , ext. 594 JDigioia@monitorliability.com Jane R. DiGioia is a Senior Claims Attorney with Monitor Liability Managers A Berkley Company. She received her B.B.A. in Finance, cum laude, from Loyola University of Chicago in 1986, and in 1987 received her law degree with high honors from IIT/Chicago-Kent College of Law. After law school, she spent five years with Lord, Bissell & Brook where her practice involved representing and counseling insurers in connection with D&O, environmental and other insurance policies, and defending litigation against a public utilities company. She also spent eight years with a boutique insurance defense firm, where she defended and tried cases involving insurance coverage, personal injury and professional liability. She has been with Monitor (an underwriting manager) since 2002 and currently handles claims involving D&O coverage for public and private companies. While at Monitor, she has also handled claims under Employment Practices Liability policies, Lawyers Professional Liability policies, and D&O policies issued to non-profit organizations. She is a frequent speaker to trade and professional associations, including Professional Liability Underwriting Society (PLUS) and Defense Research Institute (DRI).