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The call for improved corporate ethics has been thoroughly embraced by the worlds of business and public policy -- so much so that the recent invalidation of the federal sentencing guidelines, which allowed corporations to mitigate their sentences, will not slow the campaign's momentum. Rather, the guidelines' new advisory status should focus companies more on the overriding need to build an ethical culture, and less on rote, process-oriented compliance. This change in focus will underscore the guidelines' core strength: They are more than just legal procedure -- they articulate best practices in business ethics, which companies can put to constructive use.
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PCAOB Issues Guidance on Audits of Internal ControlThe Public Company Accounting Oversight Board has published additional guidance to auditors on how to…
It has become clear that not all D&O insurance coverages are created equal. And, in many instances, your policy may not provide the coverage that you count on. Clearly, in recent years, liability exposure for corporate directors has significantly increased. The erosion of protection not only for outside directors but also directors and officers generally, is a direct result of the corporate scandals that have erupted over the last several years, in one case creating the largest corporate bankruptcy in history, all due in large measure to fraudulent activity on the part of some.
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Whether your company is in the Fortune 500 or a small independent business, hiring and retaining qualified honest employees is critical to your success. In fact, a recent study showed that almost half of all job applicants submitted inaccurate or incorrect information to their potential employees. Given these alarming statistics, it is vital that you conduct background checks even before making hiring decisions.
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For at least 40 years, public policy has favored limiting employer intrusion into employees' personal lives. While certainly not the first incursion into this divided territory, the growing trend of employer wellness programs blurs the boundary significantly. Indeed, wellness programs are fashioning a new public policy ' one favoring employer involvement in improving employee health.
For many years, there have been qualified attorneys performing contingent fee services in securities class actions, consumer class actions, toxic tort and personal injury cases. But, historically at least, the contingent fee approach has not been a viable option for complex business cases. Why has this been the case? There seem to be three key reasons: Supply, demand, and tradition.
The Morgan Stanley case is the most recent example of the perils that corporate defendants face in the era of electronic discovery. Electronic evidence, and especially e-mail, now plays a starring role in litigation and investigations involving large corporations, particularly in areas such as employment discrimination, fraud and corporate mismanagement. Judges are increasingly familiar with electronic discovery, and are increasingly willing to impose heavy sanctions on corporations who do not comply with electronic discovery requests. As the Morgan Stanley case shows, the consequences of these sanctions can be dire. Therefore, it is important that companies take heed of the lessons of the Morgan Stanley case, and ensure that they have in place a comprehensive and effective system to recover and produce electronically stored documents.
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Companies in Chapter 11 may have capital structures consisting of multiple tiers of debt and equity that have competing priorities of payment vis-'-vis the company and its assets. The claims and interests of these competing stakeholders may be resolved in a Chapter 11 plan. To emerge from Chapter 11, the company must obtain approval of a plan that deals with all creditor claims and equity interests in accordance with the (sometimes complicated) rules contained in the Bankruptcy Code. In an effort to achieve an agreed-upon Chapter 11 plan, some creditors may give up (or gift) a portion of the recovery to which they would otherwise be entitled to another class of creditors or equity holders.
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Restructuring professionals must be acutely aware of potential conflicts of interest. Indeed, federal courts on occasion have disqualified a professional or ordered the disgorgement of the professional's fees in situations where that professional failed to properly disclose a conflict of interest. The importance of conflicts of interest is especially evident in today's global economy, in which restructuring matters routinely involve many of the same parties.