Compliance Bits and Pieces for March 11

These are some compliance-related stories that recently caught my eye.

Inside The Mind of An Inside Trader by Francine McKenna in re: The Auditors

No Big 4 audit firms or their partners have been named in the insider trading scandal surrounding the now-defunct hedge fund Galleon Management. But the SEC has accused one of the most prominent businessmen ever implicated in such crimes, Rajat Gupta, a former McKinsey & Company Global Managing Director.

SEC `Capacity Gap’ Risks Oversight Lapses as Regulator’s Targets Multiply by Robert Schmidt and Jesse Hamilton in Bloomberg

The U.S. Securities and Exchange Commission is about 400 employees short of what it needs to manage its current workload, according to a consultant’s four- month internal review mandated by the Dodd-Frank Act. The preliminary findings by Boston Consulting Group Inc. reinforce arguments by SEC officials that the agency is underfunded and understaffed as it takes on oversight of derivatives, credit-rating firms and municipal bonds, according to a draft copy of the report obtained by Bloomberg News.

Is it Really Illegal to Require an Applicant or Employee to Disclose her Password to a “Friends-Only” Facebook Page? in Littler’s Workplace Privacy Counsel

Recently, the American Civil Liberties Union of Maryland tried to publicly embarrass the Maryland Department of Public Safety and Correctional Services (the “Maryland Corrections Department”) into suspending its practice of asking job applicants to disclose their Facebook password so that the Department could check whether the applicant’s wall or stored e-mail revealed any connection to criminal activity. According to a letter dated January 25, 2011 (pdf), sent by the ACLU to the Maryland Corrections Department, this practice “is illegal under the federal Stored Communications Act (SCA), 18 U.S.C. §§2701-11 and its state analog, Md. Courts & Jud. Proc. Art., §10-4A-01, et seq.” The ACLU’s contention is inaccurate.

Buying a Private Fund Manager: An Overview of Legal Issues by Nathan J. Greene, Kwang-Duk (Kasey) Choi of Shearman & Sterling

An unprecedented degree of uncertainty has characterized the asset management business environment over 2009 and 2010—a period that saw extreme market volatility, threatened changes to key tax structures, a rapidly shifting regulatory environment, and rising expectations from institutional investors. One collateral result is a dramatic fall-off in asset management industry mergers-and-acquisitions (M&A) deal activity relative to 2006 and 2007. But the same forces of change that put dealmakers on the sidelines carry the seeds for a rebound in activity. Moreover, the Volcker Rule and other significant regulatory changes under the Dodd- Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)—the import of which are just becoming clear—will themselves prompt new M&A activity.

FASB Sounds Retreat on New Accounting Standards for Leases by John W. Hanley, Jr. in Davis Wright Tremaine LLP’s Corporate Finance Law Blog

It now appears that the FASB may be ready to reverse course, and perhaps even to adhere to its current rules, which draw a bright line between capital and operating leases. We believe that those who have been preparing for the new rules may want to hold tight until the FASB’s direction becomes more certain. In a nutshell, the new rules would discard the fundamental distinction in today’s generally accepted accounting principles (GAAP) between an operating lease and a capital lease. The premise of the new rules is that all leases—no matter the duration or economic terms—should give rise to an asset, and a liability, on the balance sheet of both the lessor and the lessee. These new accounting standards would create real challenges for lessees, since a lessee is required to value the future liability created by a lease using a complex “expected outcome analysis.”

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