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Kevin M. LaCroix is an attorney and Executive Vice President, RT ProExec, a division of RT Specialty. RT ProExec is an insurance intermediary focused exclusively on management liability issues.

cunningham buffett 4e coverWarren Buffett’s annual letters to Berkshire shareholders are prized alike by the company’s shareholders and by those who have no connection to the company other than an interest in what Buffett may have to say. Anyone who has followed Buffett’s letters over the years knows that the Berkshire chairman has certain themes to which he returns over and over again. Anyone who wants to assemble a comprehensive view on one of these recurring themes can of course sort through all of the shareholder letters that Buffett has written over the year, from the collection of the letters on the Berkshire website. However, the fact is that sorting through 38 years of letters would be a daunting and difficult task.

Fortunately for anyone interesting in Buffett’s writings and views, there is an excellent resource that organizes essays from over the years into a single volume organized by topic and accompanied by a detailed index. In his book, “The Essays of Warren Buffett: Lessons for Corporate America,” George Washington University Law Professor Lawrence A. Cunningham has done a truly commendable job distilling and organizing the essence of Buffett’s letter to Berkshire shareholders. In conjunction with the 50th anniversary of Berkshire Hathaway under Buffett’s leadership, Cunningham has released an updated Fourth Edition of the book (here), which incorporates selections from Buffett’s most recent shareholder letters into the anthology.
Continue Reading Book Review: Buffett’s Lessons for Corporate America

Pillsbury_logo (400x240)The advent of an SEC investigation is a serious and difficult event in the life of any organization, particularly registered-investment advisors. As a result of recent changes at the agency, an SEC investigation may be more difficult than ever for registered-investment advisors. In the following guest post, Ildiko Duckor, Sarah A. Good and Corey Harris of the Pillsbury law firm take a look at the recent changes at the agency, and provide a list of dos and don’ts. A version of this article previously was published as a Pillsbury client alert. 

I would like to thank Ildiko, Sarah and Corey for their willingness to publish their guest post on my site. I welcome guest post submissions from responsible authors on topics of interest to readers of this blog. Please contact me directly if you would like to submit a guest post. Here is Ildiko, Sarah and Corey’s guest post.

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The regulatory environment for SEC-registered advisers has become more complex as the result of a more aggressive and interconnected Securities and Exchange Commission (SEC). The connecting hub within the SEC is the Office of Compliance Inspection and Examination (OCIE), which serves as the “eyes and ears” of the SEC. The OCIE often is the first line of contact between an investment adviser and a potential referral to the SEC Enforcement Division’s Asset Management Unit (AMU), which is devoted exclusively to investigations involving investment advisers, investment companies, hedge funds and private equity funds.

The OCIE’s three main areas of focus for their 2015 exam priorities are (i) protecting retail investors, (ii) issues related to market-wide risks, and (iii) data analysis as a tool to identify registrants engaging in illegal activity.

Overlapping with the OCIE’s frontline examination role is the Compliance Program Initiative, which began in 2013 by sanctioning three investment advisers for ignoring problems within their compliance programs. The Compliance Program Initiative is designed to address repeated compliance failures that may lead to bigger problems. As such, any issues raised in a deficiency letter resulting from an examination are ripe for follow-up as the starting point of a subsequent examination. In the current regulatory environment—where violations of compliance policies and procedures can serve as the basis of enforcement actions—investment advisers and their compliance professionals need to pay close attention to the implementation, follow-through and updating of every aspect of their compliance program.
Continue Reading Guest Post: The Dos and Don’ts of an SEC Examination

del1As I have noted in recent posts, several members of the Delaware Court of Chancery have made it clear that they are increasingly skeptical of disclosure-only settlements in merger objection lawsuits. It now appears that the Chancery Court rulings are starting to have an impact at the supply end of the food chain; according to a recent analysis by The Chancery Daily, the number of new merger objection lawsuit filings in the Delaware Chancery Court has begun to drop in response the Chancery Court’s rulings. The publication reported what it observed to be during October and November 2015 a “pronounced decline in the number of class action complaints filed compared to prior months in the year 2015.” The Chancery Daily’s November 13, 2015 blog post discussing its analysis can be found here. Alison Frankel’s November 16, 2015 post on her On the Case blog discussing the recent filing trends can be found here.
Continue Reading Delaware Merger Objection Lawsuit Filings Decline in Response to Chancery Court’s Rejection of Disclosure-Only Settlements

seclogoThe number of whistleblower reports to the SEC’s Office of the Whistleblower under the Dodd-Frank Act’s whistleblower provisions continues to increase, according to the agency’s latest annual report. The November 16, 2015 report, which is entitled “The 2015 Annual Report to Congress: Dodd-Frank Whistleblower Program,” and which can be found here, reports that the number of whistleblower reports to the agency has increased every year since the program was instituted in 2011. The agency has also made over $54 million in whistleblower awards since the program’s inception, including more than $37 million to eight whistleblowers in fiscal year 2015 alone.
Continue Reading SEC Whistleblower Reports Continue to Increase

Queen Victoria Kensington PalaceThe D&O Diary is on assignment in Europe this week, with the first stop over the weekend in London. When I arrived at my hotel on Saturday morning I learned for the first time about the Friday night terrorist attacks in Paris, which had taken place while I was in transit. Since the primary purpose for my trip was to attend meetings this week in Paris (to which I planned to travel next after leaving London), these developments certainly put my trip plans in an entirely different and unsettling light. I spent most of my weekend in London trying to decide whether I should travel on to Paris from London or just return home after the weekend.
Continue Reading London Weekend

del1Because the vast majority of U.S. publicly traded companies are incorporated in Delaware, legal developments in Delaware have a particularly important impact on legal standards governing corporate conduct in the U.S. Delaware law is particularly influential with respect to the responsibilities and potential liability exposures of corporate directors. In a series of recent opinions written by Chief Justice Leo E. Strine Jr., the Delaware Supreme Court has, according to an October 22, 2015 memo from the Skadden law firm (here) “reaffirmed Delaware’s deference to the business judgment of disinterested corporate decision-makers and restored important protections for directors that had been weakened by prior court decisions.”
Continue Reading A Trio of Delaware Decisions Reaffirms Corporate Director Protections

paul-cyber-book-250x324We are long past the point where cybersecurity can be treated like an emerging, obscure or peripheral issue. The fact is that cybersecurity is now an important concern for every organization and enterprise. For that reason, cybersecurity is also now an important concern for everyone responsible for protecting and guiding those organizations and enterprises, including in particular corporate directors and officers. In the current environment, there is no shortage of advice available for these corporate officials as they seek to understand and fulfill their responsibilities to their organizations. Indeed the sheer volume of information available can be confusing or even overwhelming. Fortunately, there is now a single volume guide available to help corporate directors address their organization’s cybersecurity exposures and needs. The new book by Paul Ferrillo of the Weil Gotshal law firm entitled “Navigating the Cybersecurity Storm: A Guide for Directors and Officers” (here) is a readable, well-organized, and helpful guide for any corporate official seeking to address their cybersecurity responsibilities.
Continue Reading Book Review: A Cybersecurity Guide for Corporate Directors and Officers

exxonThe question whether concerns about climate change-related disclosures might lead to regulatory enforcement actions or even liability claims has been around for some time, but though the concerns have remained, the regulatory actions and liability claims have not really materialized.  However, in the past week, the service of a subpoena on Exxon Mobil Corp. by New York Attorney General Eric T. Schneiderman has raised the possibility that an enforcement action against the energy giant relating to its climate change-related disclosures may be in the works. The Attorney General’s action also raises the question whether other companies and industries could also be targeted. These possibilities highlight possible corporate climate change-related enforcement and liability exposures.
Continue Reading Up Next?: Climate Change Disclosure and Corporate Liability Exposures