Monthly Archives: November 2016

November 18, 2016 · 1:00 pm

The reason for policies

What happens when company employees don’t follow company policies?

“J.P. Morgan Settles Asia Jobs Probe,” The Wall Street Journal, November 18, 2016 B1.  The company apparently had a policy prohibiting the hiring the sons and daughters of clients and potential clients.  Then it created a program to do exactly that in Asia, resulting in a lot of red faces and $264 million in fines for FCPA violations.

Why do you have the policies you have?  Some are to assist compliance with law, while others just make good business sense.  Why, exactly, would you fast-track the hiring of  the offspring of clients and potential clients?  Because they were the best and the brightest, or because doing so “facilitated” relationships?  To obtain or retain business?

Who’s going to get fired?  Who, ultimately, is going to pay the fine?

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Filed under Board, Compliance, Compliance, Compliance, Controls, Corporation, Directors, Duty, Employees, Governance, Legal, Management, Oversight, Policy, Requirements, Risk

November 18, 2016 · 9:33 am

Termination as governance

What do you do when a lower-level employee breaks the law?  Well, you could ignore them, reprimand them, or fire them.  When it’s a higher-level executive, do the same rules apply?  What do the answers say about the company’s commitment to compliance with all applicable laws?

“Rio Tinto Fires Two Amid Payment Probe,” The Wall Street Journal, November 17, 2016 B4.  The chief executive of a large section of the company, together with the top legal officer of the company, were fired following discovery of emails tying a payment of $10.5 million to a consultant with the award of a large project.

As the Yates memo (and the Federal Sentencing Guidelines Manual) might have said, it’s a start.  Firing the General Counsel (actually, the head of the company’s legal and regulatory affairs function) is a twist.

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November 17, 2016 · 8:04 pm

Compliance is tricky

What happens if you fire an employee for complaining about how you do things?

“Wells Fargo Firings Get Scrutiny,” The Wall Street Journal, November 17, 2016 B1.  Employees fired for refusing to break the law in the account-cramming scandal may have a claim.  Employees have a duty of loyalty, but a “higher” duty not to break the law.

When Congress gets excited, it’s seldom good news.

 

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Filed under Compliance, Compliance, Controls, Corporation, Duty, Employees, Governance, Internal controls, Management, Oversight, To report, Uncategorized

November 16, 2016 · 5:38 pm

Who or what?

Who or what governs what you do and don’t do?

“Legislators Barred From Taking Office,” The Wall Street Journal, November 16, 2016 A13.  Incoming legislators who decided to change the oath of office to add words of allegiance to a “Hong Kong nation” were barred from office for violating the Basic Law and for not being sincere or solemn.

Were these two legislators-to-be (or not to be) subject to the governance of the Basic Law (the constitution-like document governing Hong Kong post-1996) or the Standing Committee of China’s National People’s Congress?  Or just unclear on the duties involved in taking an oath?

And can you be punished/sanctioned for not being sufficiently sincere?  And does anyone recall an oopsie and subsequent re-do by the Chief Justice in giving President Obama his oath of office?

And, finally, did the legislators-not-to-be understand the value of the addition of those words?  Content matters.

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Filed under Compliance, Content, Controls, Governance, Information, Internal controls, Legal, Oversight, Third parties, Uncategorized, Value

November 15, 2016 · 10:03 pm

A new area of ESI

ESI, or electronically stored information, is all the rage in ediscovery.  But there’s a new frontier.

“Cellphone Smudges Yield A Trove of Forensic Data,” The Wall Street Journal, November 15, 2016 A3.  It may be possible to recover enough from the smudges on your cellphone to tell a lot about you.  Not a fingerprint, yet.

Is a smudge “information”?  Skin flakes?  Sweat?

How do you govern this?  What can you use it for?  Can you store it?  Delete it?

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Filed under Accuracy, Data quality, Definition, Discovery, Information, Use

November 14, 2016 · 10:30 am

Consider the source

Facebook is a source of information, but isn’t responsible for fake “news”on the platform.

“Zuckerberg Refutes Election Criticism,” The Wall Street Journal, November 14, 2016 B4.  CEO says Facebook is not an arbiter of truth.  Says less than 1% of site’s content “would be classified as fake.”

Where do you get your information?  Do you and should you trust it?

Is Facebook a better source of news than Rolling Stone?  Are The Wall Street Journal and The New York Times arbiters of truth?

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November 12, 2016 · 1:50 pm

Due diligence in M&A

“H-P Deal Leads to Indictment,” The Wall Street Journal, November 12, 2016 B4.  Autonomy’s former CFO indicted for fraud in the sale of the company to Hewlitt-Packard.

This was fairly bog-standard alleged fraud, albeit on a much grander scale (nearly $9 billion).  Follows a $100 million payment by H-P to some of its shareholders.

Is this a value-of-information case or a value-of-compliance case (for Autonomy)?  Or just poor due diligence by H-P?  How did Autonomy’s board miss this?  How did H-P (and it’s lawyers and investment advisers) miss this, pre-acquisition?  Might this be worthy of another post- Caremark decision on negligent oversight?  If not, what will it take to hold a board liable for failing to meet its fiduciary duties?

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November 12, 2016 · 1:36 pm

Death of polling?

Following up on the previous post.

“Pollsters Face Hurdles in Changing Landscape,” The Wall Street Journal, November 11, 2016 B1.  Possible answers to why things were so wrong:

  • Move from landlines to cellphones and internet
  • Fewer people willing to answer surveys
  • Assumptions pollsters make about who’s going to vote
  • Sample size
  • Reliance on poll methodology from 4 years ago
  • Who’s willing to answer questions
  • Technologies used more by millennials than older folks
  • Building an accurate sample is hard

Other than employing lots of folks, filling a lot of “news” presentations, and disturbing a lot of dinners with yet another phone call, what is polling worth?  “‘It’s going to go away in its current form.'”

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November 12, 2016 · 1:16 pm

Separating fact from opinion

The polls leading up to the election were wrong.  What do you do it you can’t or don’t get accurate information?

“Media Face Backlash for Getting It Wrong,” The Wall Street Journal, November 10, 2016 B1.  Media acknowledges “oversights” in run-up to Trump’s election victory.

Does this reduce the value (or cost) of future election polls?  Why did so many polls get it so wrong, and so consistently?  Is there a fundamental disconnect?  Was there some other bias in the polling methods or analysis?

What is an exit poll worth today, versus last week?  What can the polls that did get it right charge the next time?  Should future polls have much larger margins of error?

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November 12, 2016 · 1:02 pm

Value of quality

“Digital Ad Buyers Seek Access to Data,” The Wall Street Journal, November 10, 2016 B5.  Major digital advertisers tussle with Google and Facebook over how to track “views” of ads, and the use of third parties who provide only  their version of the data.  Advertisers want to embed some of their own tracking code.

Who owns the data?  Who best protects your privacy and their business models?  Are there antitrust implications, with Facebook and Google getting 68% of on-line ad spending?

 

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