Category Archives: Communicate

Disclosure

“A Hot Startup Misled Advertisers,” The Wall Street Journal, October 13, 2017 A1.  Outcome Health apparently misled advertisers as to how many units their ads were appearing on.  The investigation continues.

How would your employees react if ask to provide inflated numbers to potential customers?  How would your investors react after a story appears on page one, above the fold?  Probably reflects in the valuation of the company.  And what about your company’s extensive political contacts?

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Silence as information?

I normally cite to The Wall Street Journal.  But occasionally I come across something elsewhere worthy of note.  One of my sources is the Business Law Prof Blog.  There was a post there today titled “Omissions Liability: Tempest in a Teapot or Gathering Storm?

At issue, can there be Rule 10b-5 liability (dealing with securities fraud) for not saying something, when you had knowledge and something akin to a duty to disclose.  There’s a Supreme Court case (Leidos, Inc. v. Indiana Public Retirement System) pending that may resolve the issue.

Is a corporation’s failure to say something in itself information, and if so, is that silence itself information that must be governed in order to be compliant?  How do you manage/govern silence?

 

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Altered metrics

If someone asks you to “alter” or “fudge” a financial metric reported to the market, take pause.  Or hit the big red button.

“Witness: Magnate Knew of Altered Metric,” The Wall Street Journal, June 28, 2017 B9. The chairman of a large company allegedly knew that one of the financial metrics the company reported to the market for the previous quarter was improperly inflated.  Or fudged, as they say in the trade.  By $12 million.

The former chief accounting officer took a plea to fraud (and admitted to lying on other matters) and is cooperating with the government; the former CFO is charged with criminal fraud and is at trial.  The company is “cooperating.”  The chairman hasn’t been charged.  Yet.

Why isn’t the company charged?  At least one of its agents appears to have committed a fraud.  Why isn’t the chairman charged, if he knew?  Is this consistent with the Yates memo?  Is there a civil (derivative) suit against the chairman?

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Texas Administrators

Soon to be signed into law is a bill holding school administrators, superintendents, and principals criminally liable for failing to report teachers who commit “inappropriate acts” with students.  The offending teachers are already potentially liable.

“Texas Measure Targets Improper Teachers, The Wall Street Journal, May 22, 2017 A3.

Surprising it wasn’t the law already.  Mr. Bumble was right:  the law is a ass.

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Wealth Mismanagement

Yes, the Oscars ceremony had its information mix-up, when Warren Beatty was given the wrong envelope.  But who was (and “was” is probably the operative word) in charge of calculating and communicating the cost basis for stock?

“Morgan Stanley Gave Clients Wrong Data,” The Wall Street Journal, February 28, 2017 B9.  Firm miscalculated the cost basis, and therefore the gain, on sales of stocks by the firm’s wealth-management clients for 5 years.  Anticipated cost: $70 million.

How do you ensure that the right information is getting to the right place (person) at the right time?  What controls do you have in place?  Are those controls people, process, or technology?  While it took PWC a few minutes to correct the error at the Oscars, it took Morgan Stanley five years.  Who had the better process?

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You manage what you measure

If you are serious about imposing a requirement, measure compliance with that requirement and publish the data.

“OPEC Data Show Compliance With Production Cuts,” The Wall Street Journal, February 14, 2017 B9. OPEC confirms 90% of its members are complying with agreement to curtail output.

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Legerdemain

What happens when you have a duty to disclose information to your shareholders and you try to hide that disclosure?

“Fox Faces Probe In Ailes Settlements,” The Wall Street Journal, February 16, 2017 B3.  Company incurs at least $35 million to deal with sexual harassment claims involving the former CEO.  But maybe they didn’t tell their shareholders enough information about these payments.

If this is happening on a big issue, what does it say about the reliability of internal reporting on other issues?  Is legerdemain acceptable corporate behavior?

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