Regulators to cooperate on cross-border compliance concerns | Thomson Reuters

(Business Law Currents) The Financial Industry Regulatory Authority (FINRA) and the Ontario Securities Commission (OSC) have entered into a memorandum of understanding (MOU) to facilitate the exchange of regulatory information and investigative assistance with respect to regulated entities that operate across the U.S.-Canadian border.

FINRA was formed in 2007 from the consolidation of the National Association of Securities Dealers (NASD) and member regulation, enforcement and arbitration operations of the New York Stock Exchange. It is the largest non-governmental regulatory organization for securities brokers and dealers doing business in the United States. The MOU joins others maintained by the OSC with regulators such as the SEC and the China Securities Regulatory Commission.

The deal is expected to enhance the ability of both regulators to oversee securities firms and markets. The arrangement will facilitate the exchange of information on firms and individuals under common supervision and support collaboration on investigations and enforcement matters.

via Regulators to cooperate on cross-border compliance concerns.

Collecting Digital Fingerprints « Palisades Hudson Financial Group

Frequently, however, Internet users have no idea that they are being tracked. We browse in ignorant bliss while third parties take note of our viewing proclivities and buying habits, which can then be put to use to sell us sports memorabilia, hype a new restaurant or solicit our donations.

If you are unnerved by this, fear not: The government is preparing to step in. Last month the House Subcommittee on Commerce, Trade and Consumer Protection met to discuss the idea of a data privacy law, a concept championed by the committee’s former chairman, Rep. Bobby Rush, D.-Ill. At around the same time, the Department of Commerce and the Federal Trade Commission both released reports examining ways to regulate data collection on the Web. Both reports discuss the possibility of a “do not track” mechanism, which would allow Internet users to indicate to websites they visit that they want their information to remain private.

Most browsers are already equipped with a privacy mode that temporarily stops them from accepting cookies, caching web pages, or recording the user’s history. But browser-based privacy screens can interfere with websites that need to keep track of users’ activities in order to function fully. Many of the conveniences we take for granted, like forms that fill themselves in, disappear once the privacy shield goes up.

This is why most users enter privacy mode only when they’re doing something, well, private. It’s not altogether surprising that privacy mode is also commonly called “porn mode.” A “do not track” mode could selectively allow information to be tracked to improve the functionality of websites, without allowing that information to be entered into marketing databases – assuming website operators here and abroad respect regulators’ rules.

Privacy modes also fail when it comes to defending against new methods of data mining, including “fingerprinting.” Fingerprinting, a technique being developed by BlueCava Inc., is poised to emerge as a new industry standard. When computers interact with one another – for example, when one computer accesses a website hosted on another – they broadcast a wide array of information about their configurations, including what fonts are installed and what time zones their clocks are set to. This is necessary to ensure that websites display correctly. In fingerprinting, digital surveillance companies use all of this identifying information to distinguish individual computers and other devices as they roam the Web. The surveillance companies can then create profiles of these devices and, by extension, their users. BlueCava has even figured out how to use fingerprinting to link separate devices owned by the same person.

Since fingerprinting doesn’t rely on cookies, existing browser privacy modes don’t work. A “do not track” setting, on the other hand, could potentially be used to indicate to surveillance companies that certain computers’ “fingerprints” should not be kept on file. In fact, BlueCava has said that it intends to build in such an opt-out mechanism. However, despite this stated intention, it has not yet offered an opt-out to the owners of the 200 million devices whose fingerprints it says it has collected so far. There lies the problem with the “do not track” concept: It only works if the companies doing the tracking are willing to cooperate.

via Collecting Digital Fingerprints « Palisades Hudson Financial Group.

A Finra Arbitration Case With a Spinoff in State Court – NYTimes.com

WHEN investors file complaints against their brokers, the matters are almost always heard by an arbitration panel rather than by a judge or jury. Arbitration forums like those run by the Financial Industry Regulatory Authority typically adjudicate cases more quickly than the courts and less expensively, because costs associated with discovery and extensive legal filings are minimized if not eliminated.

But a swift and inexpensive outcome is not always assured in Finra arbitrations, as an investor case under way in California shows. By cleverly circumventing Finra’s rules, the financial firm that was sued by its former client has brought a related case in California state court, adding significantly to the investor’s costs of seeking relief.

And to make matters even more exasperating, Finra’s rules preclude it from investigating the firm and its tactic until after the damage is done.

via A Finra Arbitration Case With a Spinoff in State Court – NYTimes.com.

The FCPA, Financial Institutions and a Rude Awakening | Thomas Fox – JDSupra

As reported in today’s FCPA Blog, the Wall Street Journal (WSJ) reported that the Securities and Exchange Commission (SEC) is investigating “whether bank and private equity firms violated the [FCPA] in their dealings with sovereign wealth funds. The WSJ article noted that banks, such as Citigroup, and private equity firms, such as Blackstone Group Ltd., had received letters from the SEC requesting that they retain documents relating to such activities. At this point, the SEC letters did not state any specific allegations of bribery but indicated that such investigation was in “the early stages”. The WSJ article noted that several sovereign wealth funds had invested in banks or private equity firms in the past few years and “in some cases, the sovereign funds helped stave off the firms collapse.” The FCPA Blog quoted from itself by noting that in a 2008 post it had said: We’ve never seen empirical studies on the subject, but we’ve noticed that FCPA cases generally spring from industries that deal in scarce commodities — whatever those happen to be at any moment in history. It could be energy, telecommunications licenses, access to hospital patients, metals, food, cash and so on. . . . These days, a commodity in short supply is cash. Sovereign wealth funds have it and banks need it. Will the financial institutions succumb to market pressures? Will they abandon FCPA compliance to save their balance sheets? Some might . . . And if that happens, pin-striped tragedies are sure to follow. However, the issue which struck us was just how omnipotent two of our colleagues have been regarding the possible Foreign Corrupt Practices Act (FCPA) exposure of entities which deal with sovereign wealth funds. We recently posted an article entitled “Private Equity and the FCPA”. In one of the comments to this post, our colleague Howard Sklar wrote, “One potential flip side of this—to my knowledge not yet the subject of any enforcement action—is whether ownership by a sovereign equity fund would turn someone into a “foreign official.” For example, Temasek Holdings is a Singapore government-owned fund. If it purchases a majority interest in a company, does that transform the employees of that company into “foreign officials?” It’s an open question. It sounds like he nailed it.

via The FCPA, Financial Institutions and a Rude Awakening | Thomas Fox – JDSupra.

Litigation in Mergers and Acquisitions — The Harvard Law School Forum on Corporate Governance and Financial Regulation

Litigation is often triggered by the announcement of a merger or acquisition (M&A) proposal. Using hand-collected data, we document the types of suits triggered by M&A offers, the factors that influence whether offers are targeted by litigation, the impact of M&A lawsuits on offer outcomes (offer completion rates and takeover premium in completed deals), and the factors that influence whether these cases settle for positive monetary damages.

We find that about 12% of M&A offers announced in our sample period, 1999-2000, lead to litigation. Shareholder lawsuits form the vast majority of all lawsuits. We document that (a) federal court lawsuits, though far fewer than state court lawsuits, attract a significantly higher proportion of bidder and target initiated litigation than state courts; (b) bidder and target lawsuits have significantly lower rates of settlements than other types of lawsuits, and deals involving target lawsuits have lower completion rates, but higher takeover premiums if completed. Target managers typically want to either kill the deal as originally proposed or obtain a higher premium, which will lead to both a lower completion rate and a higher average premium in completed deals; and (c) Offer completion rates are the highest for controlling shareholder squeeze-out offers relative to other M&A offer types. This is not surprising given that a controlling shareholder can unilaterally insure that a deal is completed, simply by having a target board of directors propose a merger transaction and then voting its controlling share interest in favor of the transaction.

via Litigation in Mergers and Acquisitions — The Harvard Law School Forum on Corporate Governance and Financial Regulation.

Operation Broken Trust in Action « USDOJ: Justice Blog

Attorney General Eric Holder announced today the results of Operation Broken Trust, a nationwide operation organized by the Financial Fraud Enforcement Task Force to target investment fraud. To date, the operation has involved enforcement actions against 343 criminal defendants and 189 civil defendants for fraud schemes that harmed more than 120,000 victims throughout the country.

The operation’s criminal cases involved more than $8.3 billion in estimated losses and the civil cases involved estimated losses of more than $2.1 billion. Operation Broken Trust is the first national operation of its kind to target a broad array of investment fraud schemes that directly prey upon the investing public.

via Operation Broken Trust in Action « USDOJ: Justice Blog.

Is Nigeria is Giving the U.S. a Taste of its Own Medicine? – Law Blog – WSJ

When lashing out at the Justice Department’s crackdown on bribery, some critics say the agency fails to mind its own beeswax.

In applying the Foreign Corrupt Practices Act, Justice has repeatedly targeted foreign-based companies and non-U.S. citizens for overseas bribery charges with the justification that they are fair game because the companies trade on U.S. exchanges. The critics say DOJ should stick to its home constituency and focus on U.S. companies.

Now, Nigeria is following suit. The nation’s anti-corruption agency says it will charge Dick Cheney in connection to a $180 million bribery case tied to a one-time subsidiary of Halliburton. Besides being the former vice president, Cheney once ran Halliburton, heading it up during part of the time the alleged bribery occurred.

This Financial Times report says in this story that the threat of charges against Cheney comes after the detention of 10 Halliburton staff by Nigeria’s Economic and Financial Crimes Commission. Halliburton’s country chief was also summoned, the FT said.

Last year Halliburton and KBR, the former unit which was split in 2007, paid a record $579 million fine after pleading guilty to charges that KBR had spent $180 million in bribes between 1994 and 2004 to win contracts.

“We are filing charges against Cheney,” an EFCC spokesman told the Reuters news agency. The spokesman did not give further details and did not respond to the FT’s requests for comment.

via Is Nigeria is Giving the U.S. a Taste of its Own Medicine? – Law Blog – WSJ.

To Crack Down on Insider Trading, UK to Require Recording Calls – Law Blog – WSJ

There’s been plenty of focus on what U.S. regulators are doing to clamp down on insider trading. Now, their counterparts across the pond are getting in on the action as well.

On Thursday, the U.K.’s Financial Services Authority said that starting in November next year, firms will have to record the cell phone conversations of some employees as part of its push to detect insider dealings.

The rule would apply to about 16,000 mobile phones of financial employees in the U.K. who place or take client orders in the equity and bond markets, as well as in the financial and commodities derivatives markets, according to this WSJ story by Sara Schaefer Munoz. It’d be first in Europe that specifically applies to monitoring conversations on business cell phones.

The goal? To deter fraud and to assist with alleged insider trading cases, says the FSA, which is also introducing a rule that conversations related to the above transactions cannot be held on personal mobile phones, through private email, Skype or “chat” accounts.

“Even where individuals are aware they are being recorded, they have been known to incriminate themselves and/or to betray their knowledge and intent, which helps to bolster an otherwise circumstantial case,” the agency said in a statement. “Equally, recorded conversations may support an individual’s subsequent defense of his actions.”

via To Crack Down on Insider Trading, UK to Require Recording Calls – Law Blog – WSJ.

EDD Blog Online: The Financial Implications of Litigation: Weighing the Costs and Potential Benefits

How does a business begin to weigh whether the benefits of pursuing or defending a claim are outweighed by the costs of litigation? By satisfying itself that it has a reasonable estimate of the various stages of the litigation. In some cases it is not particularly difficult to estimate, within a certain range, the likely out-of-pocket costs of certain types of litigation. The costs of preparing initial pleadings, litigating provisional remedies (such as temporary restraining orders, preliminary injunctions, and attachments), and conducting discovery, motions, trial, and appeals, can all be estimated based upon benchmarks and prior experience. An estimate is more likely to be accurate when the scope of the potential claims and defenses is well-defined, the scope of likely document production can be reasonably projected, and the identity of all relevant witnesses is known.

These estimates allow a client to decide whether to pursue mediation or settlement, and enable it to budget appropriately if it does decide to litigate. Financial projections can also serve as a restraint on fees, as they can require attorneys to explain why the costs for the litigation are exceeding estimates. By accurately estimating the out-of-pocket costs of litigation, the attorney brings value to the client by a

via EDD Blog Online: The Financial Implications of Litigation: Weighing the Costs and Potential Benefits.

That Bribe Could Be Costly – NYTimes.com

Financial analysts are predicting an uptick in cross-border mergers and acquisitions next year, especially in developing markets in Asia and Latin America.

This is good news: Such opportunities are critical to diversification and progress in this era of global interdependence.

But it also means more American companies and business people will be operating in markets where corruption is endemic. That’s bad, because business and private enterprise thrive when winners and losers are chosen on purely commercial terms.

Business people need to be aware of another risk — expanding enforcement of the U.S. Foreign Corrupt Practices Act (FCPA) and other anti-bribery laws. (Full disclosure: I am an attorney who counsels companies on FCPA compliance.)

Ten years ago, the Justice Department had roughly 5 to 10 enforcement actions involving foreign bribery at any given time. Today, it has over 150, and the Security and Exchange Commission may have an additional 20 cases. Last year, more anti-bribery indictments were brought than in the previous seven years combined. The F.B.I. now has agents who focus exclusively on FCPA cases, and the S.E.C. has established a dedicated FCPA unit.

Foreign prosecutions also have reached unprecedented levels. Earlier this year Britain passed a new Bribery Act, in some ways even tougher than U.S. law. Germany and other members of the Organization for Economic Cooperation and Development have increased investigations and are collaborating more effectively with U.S. prosecutions.

via That Bribe Could Be Costly – NYTimes.com.