2011 D&O Symposium

New York City ~ February 2 & 3, 2011

THE REGULATORS

The Regulators

MODERATOR:

Debra Wong Yang, Esq., Partner, Gibson, Dunn & Crutcher LLP

PANELISTS:

George B. Curtis, Esq., Partner, Gibson, Dunn & Crutcher LLP

Simon M. Lorne, Esq., Vice Chairman & Chief Legal Officer,

Millennium Management LLC

Brian C. McCormally, Esq., Partner, Arnold & Porter LLP

Timothy J. Treanor, Partner, SIDLEY AUSTIN LLP

OVERVIEW OF THE CREDIT CRISIS

• To what extent would current changes in law and enforcement be happening if it were not for the credit crisis?

• To what extent is the credit crisis still ongoing?

INSIDER TRADING

• Market Researchers: When do you cross the line between research and material information?

Issue of Experts Aggressive Posture re:

10(b)(5) Research vs. Material

Information Jiau & Chiesi

INSIDER TRADING

• Companies’ Ability to Control Their Supply Chain

FAILED BANKS

• The Growing Wave of Bank Failures 2010 – 157 2009 – 140 2008 – 25

• Number of FDIC Suits Authorized in 2010: Actions against 109 individuals for D&O liability. Four suits against Fidelity Bond Carriers and

Attorney Malpractice Damage Claims of approximately $2.5 billion

FAILED BANKS

• How have different regulators been affected by the recent bank failures?

FDIC?

SEC?

DOJ?

FAILED BANKS

Notable Issues In These Cases:• Selection of counsel by D&O’s• Multiple representation/potential

conflicts• Insurance coverage issues • Parallel criminal proceedings• Holding company vs. bank

receivership issues

MUNICIPAL BONDS

• Trend: Especially in distressed municipalities, regulators are coming on strong in terms of disclosure requirements.

• D&O Liability: How does this trend impact individuals and their liability?

THE DODD-FRANK ACT

• Is this Act too much, or too little?

• What is the impact on Directors and Officers?

THE DODD-FRANK ACTWHISTLEBLOWER PROVISIONS

• What will the impact of these new provisions be?

• How will these provisions impact whistleblowers in other countries?

THE DODD-FRANK ACTWHISTLEBLOWER PROVISIONS

• Will the increased monetary rewards trigger increased reporting?

• What will the impact be on internal reporting mechanisms?

• How will the government respondto whistleblowers?

• Will there be any check on veracity?

THE DODD-FRANK ACT

• What will the impact be of the provisions allowing for heightened supervision of banks?

THE DODD-FRANK ACT

• What agencies have responsibility for enforcement under the Dodd-Frank Act? SEC? DOJ? FDIC?

THE UK BRIBERY ACT

• What is the scope of this Act?• Will this Act further cooperation or

competition with U.S. regulators?

CURRENT TRENDS IN GOVERNMENT

INVESTIGATIONS

• How are the various regulators allocating their resources these days? 

• What are their priorities for enforcement?

CURRENT TRENDS IN GOVERNMENT

INVESTIGATIONS

• How will some of the recent cases impact future investigations? Ruehle Appeals to SEC post-

American Lawyer article

WHAT’S AN HONEST CORPORATION TO DO?

• Do self-reporting companies get as much credit and leniency as they may expect/hope for?

• When if ever is it ever in a company’s interest to actively pursue claims against former Directors and Officers?

WHAT’S NEXT?

• What are each of the agencies expecting to happen and planning to do?

• What types of developments just can’t be anticipated?

• How is Social Media going to impact these companies in the future?

The Regulators

QUESTIONS?

The Regulators

MODERATOR:

Debra Wong Yang, Esq., Partner, Gibson, Dunn & Crutcher LLP

PANELISTS:

George B. Curtis, Esq., Partner, Gibson, Dunn & Crutcher LLP

Simon M. Lorne, Esq., Vice Chairman & Chief Legal Officer,

Millennium Management LLC

Brian C. McCormally, Esq., Partner, Arnold & Porter LLP

Timothy J. Treanor, Partner, SIDLEY AUSTIN LLP