Compliance Bits and Pieces for June 4

Here are some recent stories that I found interesting:

The Auditors And Financial Regulatory Reform: That Dog Don’t Hunt by Francine McKenna in re: The Auditors

The firms are broken and their basic product is worthless. The auditors were completely impotent to warn investors of over-leverage and risky business models, to prevent erroneous and potentially fraudulent financial reporting and to mitigate the impact on everyone of these errors, misstatements, obfuscations and subterfuge by executives of the failed, bailed out and nationalized financial institutions.

Why Links Belong in text by Felix Salmon in Reuters

A blog entry with links at the bottom has aspirations to being self-contained, like say a newspaper column: the links are optional extras. I never have such aspirations and anybody looking to make full use of the power of the internet is doing themselves a huge disservice if they start thinking that way. In these days of tabbed browsing, there’s a difference between clicking and clicking away: most of us, I’m sure, control-click many times per day while reading something interesting, letting tabs accumulate in the background as we find interesting citations we want to read later.

Whistleblowers, Cooperators Making Their Way to the SEC’s Door by Kara Scannell in WSJ.com‘s Law Blog

While speaking at a recent Practicing Law Institute seminar, Reisner said the SEC has signed 10 cooperation agreements so far with other potential deals in the pipeline. The insiders are helping investigators in probes involving insider trading, financial and accounting fraud, stock offering frauds, and public company disclosures, he said. Reisner said the vast majority of cooperators came in the door after the probes were already underway. “One was a situation where someone walked in the door,” he said.

Dan Ariely asks, What is the right amount to pay bankers? in TED blog

To look at the question of how bonuses affect performance, Uri Gneezy, George Loewenstein, Nina Mazar, and I conducted a few experiments. In one, we gave participants an array of tasks that demanded attention, memory, concentration, and creativity. We asked them, for instance, to fit pieces of a metal puzzle into a plastic frame, to play a memory game that required reproducing a string of numbers, to throw tennis balls at a target, and a few other such tasks. We promised payments of different amounts (either low, medium, or very high bonuses) if they performed any of these tasks exceptionally well. About a third of the subjects were told they’d be given a small bonus (relative to their normal wages), another third were promised a medium-sized bonus, and the last group could earn a very high bonus.

Four-Year Sentence In Haiti Case in The FCPA Blog

A former employee of Haiti’s state-owned national telecommunications company was sentenced yesterday to 48 months in prison for being part of a bribery and money-laundering scheme. Robert Antoine, 62, of Miami and Haiti, pleaded guilty in March this year to conspiracy to commit money laundering. He was also ordered by the federal judge in Miami to pay $1,852,209 in restitution and to forfeit $1,580,771, and serve three years of supervised release following his prison term.

What’s Your KM? by Mary Abraham in Above and Beyond KM

Substitute compliance for KM:
Critics says that the inability of knowledge management proponents to settle on a universally accepted definition of KM is a sign of failure. Others say that the lack of definition and resulting ambiguity present marvelous opportunities. If you are like me (i.e., firmly settled in the second camp), then it is doubly important not to let the discipline’s perceived lack of definition translate into a personal lack of definition. Knowledge managers who lack definition make administrators very nervous. And that is not career enhancing. So the real challenge for knowledge managers is to define themselves and their work, and then help the administrators understand and accept that definition.

Side-by-Side Comparison Chart of Financial Reform Bills

The Wall Street Reform and Consumer Protection Act of 2009, passed by the House on December 11, 2009 is over 1300 pages long. The Restoring American Financial Stability Act of 2010, passed by the Senate on May 20, 2010, is over 1600 pages long.

You have lots of reading to figure out the differences between the two bills.

Davis Polk put together a great side-by-side chart that compares key issues in the Senate and House Bills. At a 160 pages, the chart provides a much more detailed analysis than any other I have seen published.

Check out The Checklist Manifesto

As a former transactional attorney, I was trained to use checklists. The transactions were too complicated to keep track of everything in my head. I also needed to communicate with the rest of the transaction team. In The Checklist Manifesto, Atul Gawande approaches checklists from the perspective of a surgeon.

I had put off reading this book because I’m already a fan of checklists. I didn’t need to be sold on their effectiveness. But I was still floored by the effectiveness Gawande reported in his studies.

In using a checklist for placing a central line, the ten-day infection rate was reduced from 11% to zero. He cites many other examples and studies that show that checklists can improve the performance of highly-trained workers.

“In a complex environment, experts are up against two main difficulties. The first is the fallibility of human memory and attention, especially when it comes to mundane, routine matters that are easily overlooked under the strain of more pressing events…. A further difficulty, just as insidious, is that people can lull themselves into skipping steps even when they remember them. In complex processes, after all, certain steps don’t always matter.”

I was particularly happy to see Gawande cite the correct story about Van Halen’s use of M&M’s as a compliance checklist tool. (See my prior post: Compliance Van Halen and Brown M&M’s.)

If you haven’t already read The Checklist Manifesto you should add it to your reading list.

Other’s thoughts on The Checklist Manifesto:

Portugal and Ethics Hotlines

Under guidelines published by the Portuguese Data Protection Authority on the 1st October 2009, a whistleblower cannot make a report anonymously. I have to admit that I can’t read Portuguese, so reading Deliberação Nº 765 /2009 does not help me much in interpreting the limitations. (Google translate helps.)

Most EU member states allow anonymous reporting as a last resort. Portugal went a step further and outlawed anonymous reporting completely.

The Portugal guidelines also limit hotline use to reports of corruption, banking and financial crime and internal accounting controls. It’s not allowed for breaches of general codes of conduct. To go a step further, whistleblowers may only report against individuals in managerial positions.

If you are a public company with operations in Portugal and required to have whistleblower hotline under Sarbanes-Oxley, you need to look at these limitations. They seem to be in direct conflict.

Thanks to Bill Piwonka of EthicsPoint for letting me know about this. EthicsPoint supplies my company’s hotline.

Sources:

SEC’s Mickey Mouse Sting Operation

Maybe this would have worked last year. But traders are probably a little nervous when it comes to buying inside information since the Galleon insider trading case. Hedge funds are now well aware that the SEC and FBI are willing to use a broader range of investigation techniques including wire taps and undercover agents.

That’s probably exactly what they were thinking when they got this mysterious email in March 2010:

“Hi, I have access to Disney’s (DIS) quarterly earnings report before its release on 05/03/10 [sic]. I am willing to share this information for a fee that we can determine later. I am sorry but I can’t disclose my identity for confidentiality reasons but we can correspond by email if you would like to discuss it. My email is [email protected]. I count on your discretion as you can count on mine. Thank you and I look forward to talking to you.”

According to the criminal complaint, at least 33 investment firms received the email. It’s not clear which firms alerted the SEC or the FBI.

The FBI sent in “Al Tyson”, a hedge fund trader to discuss the purchase of the inside information. Al was was an undercover FBI agent. The FBI also used undercover agents “Kurt” and “Bill Evers” in separate discussions. There was even a confidential informant for the FBI: “Oscar.”

Bonnie Hoxie worked for Disney as an executive assistant and thought she could get pre-release earnings information. Her boyfriend, Yonni Sebbag sent the emails.

Bonnie and Yonni must not have heard of the Galleon insider trading case. I’m sure the investment firms they contacted have heard of Galleon and I’m sure are extra cautious of insider trading cases. Especially anonymous emails offering to sell inside information.

I guess they smelled a rat instead of a mouse.

Sources: