”As many institutional investors have concluded, prevailing governance policies and practices have not produced desired board refreshment, which these investors would support in order to strengthen expertise, promote diversity and provide fresh perspectives in the board room. At the same time, companies and investors alike appreciate that term and age limits, as they have been typically applied, may not be the solutions, because they force the arbitrary retirement of valuable directors.
Category: Law
The Recorder: ”DOJ Sweetens Rewards for FCPA Cooperation”
”SAN FRANCISCO — The U.S. Department of Justice on Tuesday launched a pilot program that could significantly reduce the criminal penalties for companies that self-report violations of the Foreign Corrupt Practices Act.
Daniel E. Wolf et al ：”Social Covenants in Mergers: Legal Promises or Moral Commitments?”
‘With the return of acquirer stock as a featured form of consideration in many recent deals, dealmakers are once again focusing on “social” issues in striking a merger agreement. As compared to most straight cash takeovers where price garners the overwhelming share of, if not exclusive, attention, an acquisition featuring stock consideration, and especially a so-called merger-of-equals, often involves significant discussion between the parties of softer issues, including governance, board composition, management, people, and corporate identity (e.g., corporate and brand names, headquarters and facility locations, and charitable and community commitments). A number of deal developments over the last few years highlight some of the risks and considerations unique to these social terms.
Gary Giampetruzzi et al ”Another Life Sciences Company Gets Hit Hard: Olympus Pays $646M to Resolve Corruption Allegations in a Unique Dual FCA / FCPA Resolution”
”Demonstrating the continued focus of the Department of Justice (“DOJ”) on the life sciences industry, on March 1, 2016, the U.S. Attorney’s Office for the District of New Jersey (“USAO”) announced a major settlement with Olympus Corporation of the Americas (“Olympus”), the U.S. subsidiary of Olympus Corporation, a Japanese company and the largest U.S. distributor […]
”Japan changes tax treatment of D&O liability insurance premiums”
”Japan’s National Tax Agency (NTA) has announced a new tax treatment of premiums for directors’ and officers’ liability insurance.
US Department of Justice (Speech at Yale): ”Individual Accountability for Antitrust Crimes”
”………….Last year, the Antitrust Division obtained over $2.5 billion in criminal fines from financial firms prosecuted for antitrust violations in the foreign-currency exchange spot market. Although the fines imposed in that investigation were the largest ever obtained by the Division, we have obtained substantial fines in other investigations. Our automobile parts, air transportation, and LCD investigations, which collectively resulted in more than $5 billion in fines, are just a few examples. Foreign competition enforcers, such as the Directorate General for Competition in Europe and the Council for Economic Defense in Brazil, have also imposed very large fines for cartel violations.
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Such fines have occasionally sparked a debate about whether corporate accountability and corporate fines are a meaningful punishment for antitrust crimes. For instance, I participated in a panel discussion on this topic at the Bundeskartellamt’s Berlin Conference last year. During the discussion, a panelist provocatively suggested that competition enforcers are “drunk on fines” and suggested that corporate fines are not serving their intended deterrent purpose.
Congressional Research Service： “Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities”
”…………….Obstruction of justice is the impediment of governmental activities. There are a host of federal criminal laws that prohibit obstructions of justice. The six most general outlaw obstruction of judicial proceedings (18 U.S.C. 1503), witness tampering (18 U.S.C. 1512), witness retaliation (18 U.S.C. 1513), obstruction of congressional or administrative proceedings (18 U.S.C. 1505), conspiracy to defraud the United States (18 U.S.C. 371), and contempt (a creature of statute, rule and common law).
”Olympus settles with whistleblower after 8-year battle”
In this 2013 file photo, Masaharu Hamada, an employee of Japanese medical- device maker Olympus Corp, listens to his lawyer during an interview in Tokyo.AP Photo/Shuji Kajiyama
”A corporate whistleblower’s eight-year courtroom battle against Japanese medical device maker Olympus Corp ended Thursday with a financial settlement and a promise from the company to stop harassing him.
3/3 BDTI Seminar: “Global Trends in Antitrust Enforcement: What the Future Holds”
Japan’s Antimonopoly Act (the AMA) was recently amended so as to adopt a wider and deeper scope for the surcharge system, a leniency program, and the authority to investigate criminal cases as measures to strengthen enforcement.
At the same time, the TPP (which has been largely agreed upon) includes a provision which introduces a so-called “commitment” program in which corporations voluntarily address problems following agreements with the “national competition authority”. (This is the terminology used in the TPP.) Discussion about how to implement this feature of the TPP is now underway in Japan’s Fair Trade Commission (the JFTC). Moreover, the JFTC has shown showed interest in commencing discussions this year concerning a discretionary surcharge system. As if that was not enough, it seems that the AMA will soon be substantially amended again. Japan’s “national competition authority” is changing its views, and discussions within it are being influenced by enforcement practices in foreign countries.
Paul Hastings – “Navigating the Minefield of Whistleblower Investigations”
Useful presentation by Paul Hastings on the growing prominence of whistleblowers in US law and theunique issues they present, including:
Review of notable recent cases
Relevant whistleblower provisions by agency
Navigating whistleblower issues and investigations of
whistleblower allegations