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The Morning Risk Report: Guidance on Charging Compliance Chiefs Could Bring Clarity, but Some Seek More Protections

By Dylan Tokar

 

A view of Wall Street in Manhattan’s Financial District. Proposed guidance from the New York City Bar Association aims to offer clarity on when compliance officers at financial firms should face regulatory charges. PHOTO: AMIR HAMJA/BLOOMBERG NEWS

Chief compliance officers in the financial sector would get more clarity on their exposure to regulatory charges under a framework proposed by the New York City Bar Association, but some in the profession say more needs to be done to alleviate growing personal-liability concerns.

Structural changes at financial firms, such as modifications to reporting lines for compliance chiefs and how involved they get in business decisions, would go a long way toward helping companies attract and retain compliance talent at a time when candidates can be reluctant to take those positions over worries that they could be held personally liable for institutional failures, some compliance professionals say.

[Continued below...]

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The New York City Bar Association’s framework, proposed this month, is aimed at guiding the Securities and Exchange Commission and the Financial Industry Regulatory Authority in determining whether to charge chief compliance officers for conduct relating to their compliance-related duties. It lists a dozen factors that should be present to bring charges, and three mitigating factors that would weigh against such charges.

Questions that regulators would be asked to consider under the framework include whether charging a compliance officer would help the SEC’s regulatory goals and whether a CCO made a good-faith effort to fulfill job responsibilities. A mitigating factor would be if a CCO voluntarily disclosed and actively cooperated with regulators.

 
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From Risk & Compliance Journal

Laura Codruta Kövesi, a former anticorruption prosecutor from Romania, will lead the newly-formed European Public Prosecutor’s Office. Photo: Nikolay Doychinov/Agence France-Presse/Getty Images

The European Union this month launched a regionwide prosecutor’s office to investigate crimes such as corruption, value-added tax fraud and the misuse of Covid-19 recovery funds.

The head of the European Public Prosecutor’s Office spoke with Risk & Compliance Journal about the challenges facing her new office as it begins to tackle the more than 300 cases that have already been referred to it since launching on June 1. 

 

Microsoft Corp.’s move to combine the roles of its chief executive and chairman goes against recent governance trends. The Redmond, Wash.-based software company said Wednesday that Chief Executive Satya Nadella would also assume the role of company chairman. John W. Thompson, who preceded Mr. Nadella as chairman, returned to his role as the lead independent director, a title he held from 2012 to 2014.

Microsoft’s decision comes as more U.S. companies have separated the CEO and chairman positions in recent years, following a push by corporate-governance experts, shareholders and, in some cases, regulators to untangle the two roles.

 

Compliance

Didi Chuxing offices in Beijing. The ride-hailing service was among companies visited by government authorities recently. PHOTO: FLORENCE LO/REUTERS

Chinese regulators have intensified scrutiny of dozens of domestic internet companies for possible antitrust violations, people familiar with the matter said.

In recent weeks, agents from government agencies including the antitrust watchdog, the cyber police and tax authorities have paid surprise visits to some companies, according to the people. Those visited included Didi Chuxing Technology Co., according to the IPO prospectus of the ride-hailing firm.

During some of the on-site inspections, agents have questioned senior executives, downloaded contracts and financial records and collected emails and internal communications, the people said.

 ‏‏‎ ‎
  • An arbitrator has rejected a former top Cedar Realty Trust executive’s claims of sexual harassment, discrimination and retaliation against the chief executive officer of the publicly listed shopping-center landlord.
     
  • Authorities sent shudders through Hong Kong media outlets after police arrested the top editor of a popular daily newspaper and the city’s security chief warned of severe punishment for anyone who uses news to challenge China’s national security.
 

Audit & Accounting

William Duhnke, former chair of the PCAOB, said in a written statement that ‘every single allegation of wrongdoing that has been made against me is false.’
PHOTO: DENNY HENRY FOR THE WALL STREET JOURNAL

The Securities and Exchange Commission is investigating whether the recently dismissed chairman of the auditing industry’s oversight board violated any rules in his handling of internal complaints at the regulator, according to people familiar with the matter.

The SEC’s enforcement investigation is examining the actions of William Duhnke, who was dismissed from his job as chairman of the Public Company Accounting Oversight Board two weeks ago, according to the people. The investigation is the latest sign of trouble for the struggling regulator, which oversees the accounting firms that audit U.S.-listed companies.

Mr. Duhnke, a former senior Republican congressional aide, was appointed by the SEC in December 2017. His tenure was marked by turmoil at the agency, with staff departures and complaints that Mr. Duhnke created “a sense of fear,” according to a whistleblower complaint and people familiar with the situation.

 

Risk

Nestlé and Cargill say they oppose exploitation of children and didn’t own the farms where abuses allegedly occurred. PHOTO: FABRICE COFFRINI/AGENCE FRANCE-PRESSE/GETTY IMAGES

The Supreme Court ruled Thursday that Nestlé USA and Cargill Inc. can’t be sued in U.S. courts for abuses allegedly committed in Ivory Coast, where plaintiffs accused the food-processing giants of obtaining cocoa from plantations that relied on the forced labor of children.

The court, in a decision by Justice Clarence Thomas, said the plaintiffs’ case didn’t have enough of a connection to the U.S. to proceed.

“Nearly all the conduct that they say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast,” Justice Thomas wrote.

 
  • The Boy Scouts of America are nearing a settlement with lawyers for sex-abuse victims that marks a major step for the youth group’s efforts to end the largest bankruptcy case ever filed over childhood abuse, people familiar with the matter said.
     
  • States across the West are at risk of electricity shortages this summer as a crippling drought reduces the amount of water needed to generate hydroelectric power.
 

Governance

Rio Tinto named 28-year company veteran Peter Cunningham as its permanent CFO.
PHOTO: DAVID GRAY/REUTERS

Mining company Rio Tinto PLC named Peter Cunningham as chief financial officer, making permanent a role the company veteran has held on an interim basis since Jan 1.

Rio Tinto elevated Mr. Cunningham to the interim CFO role as part of a broader executive reshuffling that came after the company destroyed the ancient Juukan Gorge rock shelters in northwestern Australia last year. The London-listed company in December named former CFO Jakob Stausholm as chief executive, succeeding Jean-Sébastien Jacques, who stepped down after about four years amid pushback from investors. Other executives, including the head of the company’s iron-ore business, also resigned.

 

Strategy

Catlin O'Neill, right, at a testimony by Facebook CEO Mark Zuckerberg in 2018. She worked as Nancy Pelosi’s chief of staff before becoming a lobbyist for the company.
PHOTO: TOM WILLIAMS/CQ ROLL CALL/GETTY IMAGES

President Biden’s decision to name the progressive antitrust crusader Lina Khan to lead the Federal Trade Commission is a stark display of how far Silicon Valley has fallen out of favor in the nation’s capital.

In Congress, Democrats and some Republicans are working to rein in the largest tech companies with proposals aimed at curbing their market power. Lawmakers are cheering antitrust probes by the Justice Department and Federal Trade Commission that could force these companies to shed acquisitions that were rubber-stamped by the government.

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About Us

Send comments to the Risk & Compliance editor, Jack Hagel, at jack.hagel@wsj.com

Subscribe to The Morning Risk Report here.

Follow us on Twitter at @WSJRisk, @_MengqiSun, and @dgtokar.

 
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