More on Free and Legal Services: WhichDraft

WhichDraft

After my previous post on Free and Law Firms, a new thing caught my attention in this area. In that post, I focused on some ways that the legal services industry is adopting some of the models Chris Anderson describes in his book.

WhichDraft is a resource that allows users to build a variety of high quality contracts free of charge. Users build contracts by answering a series of simple questions. WhichDraft then provides sample contractual provisions. It has a collection of interesting precedents that help you produce a better first draft of legal documents. By asking a few questions, the site fills in some key blanks and repetitive information.

I was a big fan of document assembly when I was at my prior law firm. But I hated the bulky desktop programs and all the training it took to show people how to use them. When you look at the time it takes to install the programs and train people, you end up with a huge additional investment on top of the software and document template drafting costs.

When document assembly finally evolved and began offering the assembly through a web-based interface, I think document assembly became ready for prime time. Set up is just a single installation on a server. Training is just showing people where to find the tool and 2-minute demo (at least it should be).

You can add WhichDraft to

References:

free the future of a radical price by Chris Anderson

SEC Announces New Division of Risk, Strategy, and Financial Innovation

sec-seal

The Securities and Exchange Commission announced the creation of its new Division of Risk, Strategy, and Financial Innovation. University of Texas School of Law Professor Henry T. C. Hu will be its first Director. Professor Hu authored several articles that brought attention to potentially manipulative market practices using borrowed stock and derivatives.

“The new division combines the Office of Economic Analysis, the Office of Risk Assessment, and other functions to provide the Commission with sophisticated analysis that integrates economic, financial, and legal disciplines. The division’s responsibilities cover three broad areas: risk and economic analysis; strategic research; and financial innovation.”

But what is this new division going to be doing?

The new division will perform all of the functions previously performed by Office of Economic Analysis and Office of Risk Assessment, along with the following:

  1. strategic and long-term analysis
  2. identifying new developments and trends in financial markets and systemic risk
  3. making recommendations as to how these new developments and trends affect the Commission’s regulatory activities
  4. conducting research and analysis in furtherance and support of the functions of the Commission and its divisions and offices
  5. providing training on new developments and trends and other matters.

The SEC now has five divisions:

  • Division of Corporation Finance
  • Division of Enforcement
  • Division of Investment Management
  • Division of Trading and Markets
  • Division of Risk, Strategy, and Financial Innovation

According to Broc Romaneck, this is the first new division at the SEC since 1971. They divided Trading and Markets into Division of Enforcement and a Division of Market Regulation, and created a new Division of Investment Company Regulation, spun off from the Division of Corporate Regulation.

References:

Pfizer and Compliance

pfizer-logo

Pfizer got itself in trouble for the way it was marketing some of its drugs. Enough trouble that they need to cough up a $2.3 billion fine to the Department of Justice. (Yes, that is billion.) Under its settlement with the DOJ, Pfizer will pay a $1.3 billion criminal fine related to the company’s illegal promotion of its now-withdrawn painkiller, Bextra, and $1 billion civil fine related to other medicines. It’s the largest health-care fraud settlement in the DOJ’s history.

But that’s not all.

As part of the settlement, Pfizer entered into a Corporate Integrity Agreement with the Office of Inspector General of the U.S. Department of Health and Human Services. The Corporate Integrity Agreement establishes some new internal structures and requires Pfizer to continue maintenance of a corporate compliance program for a period of five years.

Pfizer already had a compliance program, headed by a chief compliance officer, which trains employees on how to properly promote Pfizer’s products. The big change is that the chief compliance officer will no longer report to the general counsel, but will report directly to the CEO. The change is intended to eliminate conflicts of interest and prevent Pfizer’s in-house lawyers from reviewing or editing reports required by the Corporate Integrity Agreement.

If you wonder whether the compliance program should report to the general counsel, the Department of Justice says they should not.

References:

New Rules Ease the Restructuring of CMBS Loans

real-estate-roundtable

The Treasury Department released new tax rules that make it easier for property owners to restructure loans that were packaged and sold as Commercial Mortgage Backed Securities. The IRS passed relief for residential mortgage packed securities in May, 2008.

Until now, tax rules have made it impossible for borrowers who are not in default to hold restructuring talks. Altering the terms of a mortgage that is part of a CMBS has a nuclear tax result. Only those loans that are actually delinquent could be modified. The loan servicers were unable to modify terms to prevent a default.

The new guidance from the Treasury makes it clear discussions involving lowering the interest rate or stretching out the loan term “may occur at any time” without triggering tax consequences. In addition, the guidance allows servicers to modify loans regardless of when they mature. The servicer only has to believe there is “a significant risk of default” upon maturity of the loan or at an earlier date and that  “the modified loan presents a substantially reduced risk of default”.

The IRS also issued final regulations that expand the list of permitted loan modifications to include certain modifications that are often made to commercial mortgages. The regulations expand this list of permitted exceptions to include changes in collateral, guarantees, and credit enhancement of an obligation and changes to the recourse nature of an obligation.

References:

Corporate and Financial Institution Compensation Fairness Act of 2009

Capitol_dome

I had largely ignored the Corporate and Financial Institution Compensation Fairness Act of 2009 (H. R. 3269) thinking it was limited to public companies and banks. I was surprised to find that it also sweeps up investment advisers, and therefore private investment funds, with assets greater than $1 billion.

The bill does focus mostly on public companies and gives shareholders a “say on pay.” But I just noticed that the bill would have an impact on private investment funds.

Section 4, Enhanced Compensation Structure Reporting to Reduce Perverse Incentives, provides

“the appropriate Federal regulators jointly shall prescribe regulations to require each covered financial institution to disclose to the appropriate Federal regulator the structures of all incentive-based compensation arrangements offered by such covered financial institutions …”

The definition of covered financial institution includes: “an investment advisor, as such term is defined in section 202(a)(11) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-2(a)(11))”. There is a later exemption for covered financial institutions with assets of less than $1,000,000,000.

The bill would empower federal regulators to:

“prescribe regulations that prohibit any incentive-based payment arrangement, or any feature of any such arrangement, that the regulators determine encourages inappropriate risks by covered financial institutions that–

  1. could threaten the safety and soundness of covered financial institutions; or
  2. could have serious adverse effects on economic conditions or financial stability.”

It seems like Congress wants to be able to limit the compensation for investment advisers, hedge fund managers, the managers of other private investment funds.

The bill was passed by the House on July 31. The Senate has not yet taken it into consideration.

References:

Image is from Wikimedia Commons: US Capitol Dome Jan 2006.

The Collapse of AIG

AIG

There have been many stories about the collapse of AIG. There have also been many stories about the internal flaws at AIG. The pitchforks were out when bonuses were announced in March. One of those executives was Jake DeSantis who wrote a New York Times OP-ED about his bonus. (AIG Bonus – My Thoughts) It turns out that Mr. DeSantis also contacted Michael Lewis.

The end result is a story in the August issue of Vanity Fair: The Man Who Crashed the World. As you can guess from the title, Lewis pins much of the blame on one man: Joe Cassano, the former president of AIG Financial Products.

After reading the article, I am not sure it’s fair to pin so much blame on Mr. Cassona. The article does provide a great deal of insight and clarity into the interconnections between AIG, sub-prime lending, credit default swaps, and the collapse of US house prices.

“There was a natural role for a blue-chip corporation with the highest credit rating to stand in the middle of swaps and long-term options and the other risk-spawning innovations. The traits required of this corporation were that it not be a bank—and thus subject to bank regulation and the need to reserve capital against the risky assets—and that it be willing and able to bury exotic risks on its balance sheet. There was no real reason that company had to be A.I.G.; it could have been any AAA-rated entity with a huge balance sheet. Berkshire Hathaway, for instance, or General Electric. A.I.G. just got there first.”

At first, credit default swaps were mostly for commercial credit risk. Then, they started to expanding to consumer credit risk. The thought inside AIG Financial Products was that it was sufficiently diverse that it was unlikely to all bad at once.  At first, the consumer products did not include sub-prime loans. Then, in 2004, the less credit-worthy sub-prime loans started becoming part of the credit pools.  They eventually pulled the plug, feeling confident that their 2005 risks would not suffer any credit losses. (They were wrong.)

The bigger problem came when AIG lost its AAA rating, the day after Hank Greenberg was forced to resign. With its AAA rating, AIG has resisted being required to post collateral to back up its outstanding obligations under the derivative products it was selling. With a downgrade in its credit rating, it had agreed to post collateral. When the debt AIG insured started going bad, AIG had to put up cash collateral to back up its obligations. There was the equivalent of a run on a bank.

Lewis alludes to AIG’s risk-taking for residential loans may have been one of the factors that contributed to the dramatic run up in house prices, that eventually lead to more sub-prime borrowing, to a further increase in home prices and to more bad debt. That liquidity and poor underwriting lead to loans being made that, in retrospect, should not have been made.

Lastly, since AIG turned off its supply of risk-taking for residential mortgage loans, banks kept more of that risk on their books. That may have lead to the collapse of Bear Stearns, Merrill Lynch, and Lehman Brothers.

Lewis pins the blame on Cassano for not realizing that AIG was increasing taking on more sub-prime risk than they realized. At one point, when pools were up to 95% sub-prime, many internal risk analysts guessed that there was no more than 20%. Even when confronted with this Cassano dismissed the problem, conluding that house prices could never fall everywhere in the United States at once. (He was wrong.)

You can read the article and determine for yourself if Cassano should really be the fall guy.

In the end, the lesson to be learned for compliance and risk professionals is the importance of listening to your front line employees. They see many problems coming long before you do.

If you like that article, Michael Lewis also did a great story in the April issue of Vanity Fair on the financial collapse in Iceland: Iceland’s Meltdown.

UPDATE: The Wall Street Journal published an article indicating that Mr. Cassano is the subject of a grand jury inquiry. Prosecutors Are Poised to Impanel AIG Grand Jury. The possible case against Mr. Cassano (and others) could rely partly on tape recordings of 2007 phone calls involving AIG Financial Products employees who discussed the value of their derivatives trades.

FCPA Conviction

bangkok_film_festival

Gerald Green and Patricia Green, Los Angeles-area film executives, were found guilty of conspiracy to violate the Foreign Corrupt Practices Act and money laundering laws of the United States, as well as substantive violations of the FCPA and U.S. money laundering laws. The verdict was handed down late on Friday.

The Greens were charged by the Department of Justice with having bribed Thai authorities up to $1.8 million between 2002 and 2006 to receive approximately $14 million in government contracts and grants to run the Bangkok International Film Festival.

The conspiracy and FCPA charges each carry a maximum penalty of five years in prison, and each of the money laundering counts carries a maximum penalty of up to 20 years in prison. The false subscription of a U.S. income tax return carries a maximum penalty of three years in prison and a fine of not more than $100,000. Sentencing has been set for Dec. 17, 2009, before the Honorable George Wu in the Central District of California.

DOJ Press Release: Film Executive and Spouse Found Guilty of Paying Bribes to a Senior Thai Tourism Official to Obtain Lucrative Contracts

The Ins and Outs of CFIUS Filing

newman

The Foreign Investment and National Security Act of 2007 applies to takeovers of U.S. businesses by non-U.S. persons. That law formalized the Committee on Foreign Investment in the United States to review foreign investments that could impair national security

Back in November, I was looking at how the new CFIUS regulations would affect real estate investors with significant foreign ownership. it seems clear the purchase of a building could be considered a purchase US business. The issue would be whether the tenants in the building are government tenants and how the ownership of the building could implicate national security.

William A. Newman, of Sullivan & Worcester LLP in New York, put together an article on process for making a CFIUS application filing: The Ins and Outs of CFIUS Filing. He does not paint a pretty picture. CFIUS has estimated that the average filing requires about 100 hours.

Mr. Newman also contributes to the USA Inbound Acquisitions & Investments Blog.

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