NYSE-Listed Corporations: Your Time Is Now
February 06, 2004
Much of the waiting for final rules promulgated by the Sarbanes-Oxley Act of 2002 (the Act), including new corporate governance standards approved by the SEC on Nov. 4, 2003 for New York Stock Exchange (NYSE)-listed companies, is over. It is now time for NYSE-listed corporations to set into motion the implementation and effective management of these myriad new rules. Extensive new disclosure is required to be included in proxy statements and Forms 10-K filed on or after Jan. 15, 2004, and consequently, processes should already have been put in place to allow adequate time for companies to review the effectiveness of newly adopted procedures.
Audit Committee Members: the Act Affects You!
February 06, 2004
The recent and seemingly endless series of high-profile corporate scandals and failures has caused the investing public and regulatory authorities to become increasingly concerned about corporate governance and financial disclosure. The congressional response to this concern, the Sarbanes-Oxley Act of 2002 (the Act) contains, among many other provisions, significant enhancements to the responsibilities of audit committees. As a result of the Act, audit committees can no longer be rubber-stamping "yes-men" in corporate governance. They must now meet specific qualifications of financial literacy and independence, and exercise reasonable diligence and good faith judgment in the monitoring of management, and internal and external auditors. If they do not, they could subject the company and themselves to shareholder lawsuits and the company to SEC actions and/or being de-listed by their respective exchange. The provisions of the Act that directly affect audit committees are presented by title and section and discussed in this article.
The Truth Can Hurt Even More When It's Too Late
February 06, 2004
An industry-leading company recently commissioned two outside firms to perform an objective assessment of its corporate ethics program. Each assessment was extensive, involving interviews with anyone who wanted to talk, and people selected by the teams, ranging from middle management to the CEO. Collectively, the two assessments had interviews or focus groups with over 1000 people at every major location. This probably represents the most comprehensive assessment of ethics program effectiveness factors completed in 2003. (One of the assessments was completed by the law firm of Paul, Weiss, Rifkind, Wharton & Garrison, LLP. The assessment team was led by former Senator Warren Rudman, and their findings were published on Nov. 3, 2003. The other assessment was completed by Ethical Leadership Group, and their findings were published on Oct. 23, 2003.)
In The Courts
February 06, 2004
Recent rulings of interest to you and your practice.
'The Defense Calls ... the Defendant'
February 06, 2004
Most criminal defendants are advised against testifying at trial, but white-collar defendants usually must testify. Since state of mind is a key element in many business crimes, often the most important issue is what the defendant intended in taking (or failing to take) a specific action. The defendant's best hope may be to look jurors in the eye and convince them of his or her innocent state of mind. Besides, jurors tend to think that anyone wrongly accused would take the stand to proclaim his or her innocence.
Foreign-Tax Evasion As Mail and Wire Fraud
February 06, 2004
With deficits plaguing the federal budget, prosecutors might be expected to concentrate their efforts on enforcing U.S. tax laws. Yet federal prosecutors have recently brought charges under the mail and wire fraud statutes (18 U.S.C. '' 1341, 1343) in cases involving the evasion of foreign taxes. Foreign governments themselves have brought civil suits under the RICO statute (18 U.S.C. ''1961 et seq.), on the theory that the evasion of foreign taxes constitutes a predicate act of mail or wire fraud. The courts have split on whether this works. Generally, RICO claims by foreign governments have failed. Criminal prosecutions for fraud and money laundering have been upheld by the Second and Fourth Circuits, but rejected by the First Circuit. The issue may soon reach the Supreme Court.
Cooperation, Confidentiality and Waiver: Is There a Solution?
February 06, 2004
Much has been written, in this newsletter and elsewhere, about the dilemma faced by corporations that want to cooperate with a government investigation by acceding to government "requests" for information protected by the attorney-client and work product privileges, while at the same time attempting to protect the otherwise privileged information from disclosure to the litigious world at large. Recent turf battles between federal and state prosecutors and regulators have only made more difficult any attempt to resolve the tension between two perceived needs: to cooperate, and to preserve confidentiality.
Beware of the Boilerplate Introduction
February 01, 2004
Many franchise agreements begin with an introductory paragraph, a "witnesseth" statement or various recitals that tout the virtues of the franchisor's business or systems. These introductory statements might state that the franchisor has "developed a proven system," "developed and perfected a system," or "developed a uniform system" for operating a particular type of business. The introductory statements also might highlight the success, reputation, or positive image of the franchisor's business systems.
Court Watch
February 01, 2004
Highlights of the latest franchising cases from around the country.
