Download - THE REGULATORS
2011 D&O Symposium
New York City ~ February 2 & 3, 2011
THE REGULATORS
The Regulators
MODERATOR:
Debra Wong Yang, Esq., Partner, Gibson, Dunn & Crutcher LLP
PANELISTS:
George B. Curtis, Esq., Partner, Gibson, Dunn & Crutcher LLP
Simon M. Lorne, Esq., Vice Chairman & Chief Legal Officer,
Millennium Management LLC
Brian C. McCormally, Esq., Partner, Arnold & Porter LLP
Timothy J. Treanor, Partner, SIDLEY AUSTIN LLP
OVERVIEW OF THE CREDIT CRISIS
• To what extent would current changes in law and enforcement be happening if it were not for the credit crisis?
• To what extent is the credit crisis still ongoing?
INSIDER TRADING
• Market Researchers: When do you cross the line between research and material information?
Issue of Experts Aggressive Posture re:
10(b)(5) Research vs. Material
Information Jiau & Chiesi
INSIDER TRADING
• Companies’ Ability to Control Their Supply Chain
FAILED BANKS
• The Growing Wave of Bank Failures 2010 – 157 2009 – 140 2008 – 25
• Number of FDIC Suits Authorized in 2010: Actions against 109 individuals for D&O liability. Four suits against Fidelity Bond Carriers and
Attorney Malpractice Damage Claims of approximately $2.5 billion
FAILED BANKS
• How have different regulators been affected by the recent bank failures?
FDIC?
SEC?
DOJ?
FAILED BANKS
Notable Issues In These Cases:• Selection of counsel by D&O’s• Multiple representation/potential
conflicts• Insurance coverage issues • Parallel criminal proceedings• Holding company vs. bank
receivership issues
MUNICIPAL BONDS
• Trend: Especially in distressed municipalities, regulators are coming on strong in terms of disclosure requirements.
• D&O Liability: How does this trend impact individuals and their liability?
THE DODD-FRANK ACT
• Is this Act too much, or too little?
• What is the impact on Directors and Officers?
THE DODD-FRANK ACTWHISTLEBLOWER PROVISIONS
• What will the impact of these new provisions be?
• How will these provisions impact whistleblowers in other countries?
THE DODD-FRANK ACTWHISTLEBLOWER PROVISIONS
• Will the increased monetary rewards trigger increased reporting?
• What will the impact be on internal reporting mechanisms?
• How will the government respondto whistleblowers?
• Will there be any check on veracity?
THE DODD-FRANK ACT
• What will the impact be of the provisions allowing for heightened supervision of banks?
THE DODD-FRANK ACT
• What agencies have responsibility for enforcement under the Dodd-Frank Act? SEC? DOJ? FDIC?
THE UK BRIBERY ACT
• What is the scope of this Act?• Will this Act further cooperation or
competition with U.S. regulators?
CURRENT TRENDS IN GOVERNMENT
INVESTIGATIONS
• How are the various regulators allocating their resources these days?
• What are their priorities for enforcement?
CURRENT TRENDS IN GOVERNMENT
INVESTIGATIONS
• How will some of the recent cases impact future investigations? Ruehle Appeals to SEC post-
American Lawyer article
WHAT’S AN HONEST CORPORATION TO DO?
• Do self-reporting companies get as much credit and leniency as they may expect/hope for?
• When if ever is it ever in a company’s interest to actively pursue claims against former Directors and Officers?
WHAT’S NEXT?
• What are each of the agencies expecting to happen and planning to do?
• What types of developments just can’t be anticipated?
• How is Social Media going to impact these companies in the future?
The Regulators
QUESTIONS?
The Regulators
MODERATOR:
Debra Wong Yang, Esq., Partner, Gibson, Dunn & Crutcher LLP
PANELISTS:
George B. Curtis, Esq., Partner, Gibson, Dunn & Crutcher LLP
Simon M. Lorne, Esq., Vice Chairman & Chief Legal Officer,
Millennium Management LLC
Brian C. McCormally, Esq., Partner, Arnold & Porter LLP
Timothy J. Treanor, Partner, SIDLEY AUSTIN LLP