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The SEC's Renewed Focus on Regulation FD
According to a survey conducted by the Investment Company Institute and the Securities Industry Association, approximately 57 million households, half of all U.S. households, a threefold increase from the early 1980s, own stocks directly or through a mutual fund. The democratization of stock ownership, combined with the advancement and widespread usage of technology-based communication platforms, such as e-mail, Twitter, Facebook and corporate blogs, by the world's largest public companies to communicate information to customers and shareholders has: 1) facilitated the dissemination of information, and 2) resulted in an increased amount of scrutiny on the performance of, and the disclosures made by, public companies. Without question, public corporations and capital markets have had, and will continue to have, an increasingly more visible role in contemporary America. Accordingly, corporate counsel, compliance directors, executive officers and boards of directors should take note: The investing public is demanding more transparency and accountability of corporate America ' more accurate financials, more detailed compensation disclosures and more internal controls.
The fundamental purpose of federal securities laws, in general, and Regulation Fair Disclosure (“Regulation FD”), in particular, is to promote “full disclosure”: the accurate, full and timely disclosure of material information to investors, so that each investor is afforded the opportunity to make a fully informed investment decision. The importance of maintaining fully informed capital markets is predicated on fairness and economic theory (see the Efficient Market Hypothesis theory: sustainable and efficient capital markets establish prices that fully reflect all publicly available information). Regulation FD provides the SEC a platform to regulate and curtail the informational asymmetries in the marketplace. In the past 18 months, the SEC has brought two Regulation FD enforcement actions. While this number may not appear particularly significant, past history (the SEC brought seven enforcement actions from 2002 to 2005) and recent SEC guidance indicates that the SEC has renewed its emphasis on enforcing Regulation FD.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.