Edwards Angell Palmer & Dodge LLP continues its live blogging from the PLUS D&O Symposium. There were several interesting points discussed during the second panel discussion this morning, including the following:

  • Dodd-Frank seeks to effectively take the enforcement apparatus that exists at the bank level and apply it to the holding company level, and to companies that are deemed systemically significant to the functioning of US economy.  
  • The UK Bribery Act (not yet in effect) makes it a crime for a company to fail to prevent bribery. There is a defense for having an adequate internal compliance program. Guidance on what will constitute 'adequate procedures' is forthcoming. The Act applies to all companies conducting business in the UK, including US multinationals, so these companies will have to be aware of compliance requirements in both the FCPA and UK Bribery Act. It remains to be seen what sort of resources will be dedicated to enforcing this new Act. D&O's are grappling with how to deal with the new requirements to be imposed on them by the new Act.  
  • Achieving global settlements will also be an issue going forward for companies being investigated for both FCPA and UK Bribery Act violations. There is an increasing degree of cooperation between the SEC and the DOJ, and their UK counterparts. However, no one is certain about how these regulatory agencies will address global settlements.  
  • The trend of prosecuting companies will increase along with civil actions against deep pocket defendants (i.e., attorneys and accountants).  
  • Twenty-five years ago the FDIC challenged regulatory exclusions, which is something counsel and underwriters should keep in mind.