Financial Regulatory Forum

U.S. anti-corruption setbacks seen having little impact on company strategies

By Brett Wolf

NEW YORK, Feb. 23 (Thomson Reuters Accelus) - The U.S. Justice Department has suffered a string of setbacks in its efforts to enforce the Foreign Corrupt Practices Act, including two this week, but it retains sufficient leverage to persuade companies to settle bribery allegations without a legal fight, sources said.

“I think companies should be emboldened, but I doubt they will,” said Mike Koehler, an assistant professor of business law at Butler University. “After all, to challenge the Justice Department and to put it to its burden of proof requires a company to be criminally indicted.” Indictment would not only open up a long legal battle, it would also threaten a company’s reputation.  (more…)

The Einhorn effect? How the FSA’s authority might be undermined by vocal unrepentant sinners

By Peter Elstob

LONDON/NEW YORK, Feb. 23 (Thomson Reuters Accelus) – Britain’s Financial Services Authority (FSA) could see its credibility undermined as individuals with deep pockets choose not to challenge fines, instead paying up but then publicly criticising the regulator, a leading regulatory lawyer has warned. “I think it will be interesting to see whether … individuals and firms decide, for good commercial reasons, not to challenge cases, but to either settle them or to leave them uncontested, but then to comment rather adversely on the FSA’s process and finding,” said Helen Marshall, a former senior FSA enforcement official and now a partner at Bingham McCutchen LLP.  (more…)

SOPA, FATCA and the Volcker Rule: the border busters

By John Mackie (Canada)

(Business Law Currents) – The global nature of business has perhaps never been more evident than in the wake of the U.S. housing crisis, the natural disasters in Japan and the ongoing European sovereign debt ruckus. Industries and national economies do not exist in a vacuum, nor do the regulatory changes which nations seek to implement in order to address widespread concerns.

The most recent example of the “extraterritorial” impact of a nation’s laws is a rule being promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). Released last October, the Volcker rule is a proposal to prohibit proprietary trading and hedge or private equity fund investments by banking entities. (more…)

Corporate governance: SEC, shareholder activism driving enhanced director disclosure

By Alex Lee

NEW YORK, Feb. 17 (Business Law Currents) – With a slew of Dodd-Frank and SEC driven regulations headlining the 2012 proxy season, enhanced director disclosure will be a prominent issue as investors demand heightened corporate accountability and broader levels of transparency. Rules put in place a couple years ago on compensation policies, risk incentivizing, director/nominee disclosure, board structure and oversight have now had the time to incubate sufficiently for companies to respond in a serious manner.

The Main Street versus Wall Street debate and the ensuing Occupy Wall Street movements have done much to expand public angst from mere disgruntlement with corporate America to even more emphasis on corporate governance in general. The public battle is now being waged increasingly on the battlefield of executive compensation, and as a consequence, on director disclosure. (more…)

Cole’s FSA departure leaves a lasting legacy but no surprise, says industry

By Martin Coyle

LONDON/NEW YORK, Feb. 16 (Thomson Reuters Accelus) - City lawyers have praised Margaret Cole’s legacy following her decision to depart the Financial Services Authority and have said her successor faces a tough job continuing her good work as head of enforcement. Observers also noted that Cole’s failure to secure the top job at the new Financial Conduct Authority meant that her departure was inevitable. Cole, managing director and board member, announced her exit from the regulator yesterday after seven years. Cole, who joined the regulator as director of enforcement in 2005 from U.S. law firm White & Case, is widely credited with pushing forward the FSA’s recent tough approach to combating financial crime and market abuse. The importance of her departure was perhaps reflected as the news was briefly ‘trending’ on Twitter yesterday. (more…)

SEC’s “re-markable” action against Credit Suisse traders

By Thomson Reuters Accelus – Staff

NEW YORK, Feb.10 (Business Law Currents) - A new SEC complaint against former Credit Suisse (CS) employees shines a harsh light on an underappreciated aspect of the financial crisis: mark-to-market manipulation. Charging four traders and investment bankers with violating securities laws, the commission’s civil action (“the complaint”) alleges a “colossal fraud” to misstate the value of bonds held in the bank’s portfolio. U.S. Attorney Preet Bharara of the Southern District of New York also filed a criminal indictment against CS investment banker David Higgs, a managing director of the bank’s London office. Bharara likewise filed a criminal information against CS trader Salmaan Siddiqui, who held the title of vice president.

Unlike more high-profile litigation revolving around the residential mortgage-backed securities (RMBS) and collateralized debt obligations (CDOs), this particular case is noteworthy in that it attacks the accounting behind publicly filed documents, rather than allegations of material misrepresentations in the sales of securities. (more…)

Evidence, access aid job security when compliance staff raise a red flag

By Emmanuel Olaoye

NEW YORK, Feb. 9 (Thomson Reuters Accelus) - Two vivid reminders of the job-security perils faced by compliance officers and others who sound alarms at company practices were provided last week by a congressional hearing into the MF Global bankruptcy and a federal appeals court ruling on whistleblower law.

The risks may be part of the job, but skillful management of internal policies and wise self-protection can help avoid career-threatening retaliation, experts said. (more…)

China shadow banking: dancing in the dark

By Helen H. Chan

HONG KONG/NEW YORK, Feb. 8 (Business Law Currents) – Uncertainty over the exact size of China’s underground private financing activities, also known as the shadow banking industry, is causing concerns among international investors as well as the Chinese government.

Restrictions on bank lending to China’s small-to-medium enterprises and to the real estate sector over the past few years have driven many of these businesses to seek alternative methods of financing from larger cash-rich entities. This demand for funding has in turn prompted the development of non-bank financiers such as trust companies and private short-term financing service providers. (more…)

Some U.S. banks awash in ID theft tax-fraud proceeds as IRS cracks down

By Brett Wolf

NEW YORK, Feb. 3 (Thomson Reuters Accelus) - Despite a new federal crackdown announced this week aimed at combating tax refund fraud involving the use of stolen identities, current law enforcement efforts are not enough and fraudsters are still pumping massive sums of tax fraud proceeds through U.S. banks, sources told Thomson Reuters.

“IRS and Justice should have been doing this three years ago. This widespread criminal activity is more profitable than drug dealing,” said regulatory consultant and investigator Jim Dowling, a former Internal Revenue Service criminal investigator special agent who also acted as an anti-money laundering (AML) advisor to the Office of National Drug Control Policy.  (more…)

Funds auditing expert network relationships, asking for guidance

By Rachel Wolcott

NEW YORK, Feb. 3 (Thomson Reuters Accelus) - Fund managers and investment firms are auditing their expert network relationships to ensure they do not breach insider trading rules. While many are reinforcing their rules and policies around these relationships, the fund industry has sought additional guidance from the U.S. Securities Exchange Commission (SEC) and its international counterparts.

The Galleon Case in 2010 started the industry’s self-examination of expert networks’ role in insider trading, and last week the UK Financial Services Authority (FSA) reinvigorated the issue with a £7.2 million fine given to David Einhorn and his Greenlight Capital fund.  (more…)

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