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Europe's Reaction Against the SOX Anonymous Whistleblowing Rule
Watching the reaction of European data protection authorities to the anonymous whistleblower requirement set forth in ' 304 of the Sarbanes-Oxley Act of 2002 (SOX) has been like watching an ongoing heavyweight prize fight. In one corner, representing the U.S. and its recent history of corporate frauds, stands the SOX champion determined to use all means to prevent future frauds. In the other corner, representing Europe's 20th-century history, which unfortunately includes use of anonymous 'informants' to 'denounce' and silence or kill opponents of repressive regimes in Germany, France and elsewhere, stands the European Union (EU) data protection champion resolved to protect what Europeans view as the fundamental human right of privacy. The SOX and EU champions have exchanged blows, neither has given up much ground, and the match appears to be headed into the late rounds. The audience of multinational corporations required to comply with both SOX and EU data protection laws can only watch, do their best to implement anonymous whistleblower mechanisms in compliance with both SOX and EU privacy law, and wait until the contest is ultimately decided.
SOX's Opening Salvo
Section 304 requires the audit committees of boards of directors of publicly traded companies to establish mechanisms for 'receipt, retention and treatment' of anonymous employee concerns about potential accounting improprieties or fraud against shareholders. Section 304 is one of the rare instances in U.S. law in which anonymous whistleblowing is specifically protected by law. Congress determined that encouragement of anonymous whistleblowing was a necessary element of SOX's overall framework aimed at deterring fraud against shareholders. The full scope of SOX's scheme of 'undersight,' which is shorthand for protection for corporate insiders who raise concerns about shareholder fraud, is discussed in this author's article entitled 'Compliance in the Era of 'Undersight” in the July 2005 edition of this newsletter.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.