Updated Mediation and Dispute Resolution Questionnaire Attached

Greetings all. I have updated my mediation and dispute resolution questionnaire, which is a document that I wrote and use to obtain information that is helpful to facilitate dispute and case settlement. Click on the following link for the pdf, and go ahead and use the questionnaire and pass it to other people as you wish. Thank you. David Tate

Here is the link for the questionnaire: Mediation and Dispute Resolution Questionnaire, David Tate, Esq. 07302017

Here is a link to the Royse Law Firm, PC http://rroyselaw.com/

Comments re post by Norman Marks – internal audit and ERM accused of failing to hit the mark – discussion about management, boards and audit committees – David Tate, Esq., Royse Law Firm

I have provided below a link to a post by Norman Marks, in which Norman discusses and in part compares or contrasts internal audit and ERM. Norman’s post is a good, worthwhile read.

There are many good writers on these topics – you will also note that there are disagreements between knowledgeable professionals. Just for example, as Norman notes, ERM or enterprise risk management is a management function (I would say a management, board and audit committee function) whereas internal audit is independent; however, there has been for sometime considerable discussion about the role of internal audit and whether it can be or should be or has been expanded in ways that could make it less independent or less of an audit function and more of an advisory function in some circumstances – internal audit endeavors to make itself more valuable and needed as a function and department.

I don’t get into the discussions about whether internal audit should or should not be less independent or more advisory – instead, if internal audit is not being sufficiently utilized I primarily attribute that to one or both of two reasons which can be interrelated: (1) either internal audit needs to do a better job selling to management, the board and the audit committee how internal audit can help, or (2) particularly the board and the audit committee need to be more educated or convinced about how internal audit can help them to satisfy their oversight duties and responsibilities (I can help you with reason (2)).

If you are interested in risk management and enterprise risk management you are aware that COSO is still updating its ERM framework. If you aren’t interested in risk management or ERM but you are a board and/or audit committee member you definitely should be interested as it or parts of it are part of your oversight duties and responsibilities.

COSO has said that its updated ERM function should be out mid-2017, in other words, soon. This is a big deal. Whereas risk management professionals will extensively evaluate and comment about the new framework from an ERM perspective, and although I am also a CPA, I will primarily evaluate the framework from a legal perspective and what the new framework will or may require of management, the board and the audit committee in satisfaction of their duties and responsibilities. Add to this the COSO 2013 updated internal control framework, and the changes that are being made to audit procedures and the audit report, in addition to increasing disclosures about events, practices and procedures not just numbers, and you have a significantly changing environment in terms of management, board and audit committee duties and responsibilities.

That’s all for now. Below is the link to Norman Marks’ new blog post – read his post – it covers more about internal audit and ERM than the title indicates. David Tate, Esq., Royse Law Firm (see below for firm practice areas), Menlo Park, California office, with offices in northern and southern California. The following is a link to my other blog, about trust, estate, and elder, etc., disputes, litigation and difficult or contentious administrations: http://californiaestatetrust.com.

Here is the link to Norman’s post:  https://normanmarks.wordpress.com/2017/07/15/internal-audit-and-erm-accused-of-failing-to-hit-the-mark/

David Tate, Esq. (and CPA, California inactive). Royse Law Firm, Menlo Park Office, California (with offices in both northern and southern California).

Royse Law Firm – Practice Area Overview – San Francisco Bay Area and Los Angeles Basin, http://rroyselaw.com/

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Disputes and Litigation (I broke out these areas because they are my primary areas of practice)
  •             Business
  •             Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  •             Trade Secrets, NDA, Financial & Accounting Issues, Fraud, Lost Income, Royalties, Etc.
  •             Privacy, Internet, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, Board & Committee, Shareholder, D&O, Lender/Debtor, Etc.
  •             Insurance Coverage and Bad Faith
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, Etc., and Contentious Administrations
  •             Dispute Resolution and Mediation
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions Including AgTech, HealthTech, etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Court holds that a whistleblower need only have a reasonable belief that the defendant’s conduct was unlawful

The United States District Court, S.D. New York, on a FRCP 56 motion for summary judgment, recently held in Murray v. UBS Securities, LLC that a whistleblower under section 806 need only show reasonable belief that the defendant’s conduct violated federal law. In relevant part see the summary snapshot below. This is important for potential defendants and their decision makers to know when evaluating potential whistleblower situations and how to proceed.

David Tate, Esq. (and CPA, California inactive), Royse Law Firm (Menlo Park office, California, San Francisco Bay Area and the Los Angeles Basin)

PCAOB Adopts New Audit Report-Should Be Interesting-Still Has To Be Adopted By The SEC

The following is a link to the PCAOB website page discussing the PCAOB’s June 2017 adoption of a new audit report which in part requires the disclosure of critical audit matters (CAM) for certain audits conducted under PCAOB standards. Here’s the link to the PCAOB page CLICK HERE

The new report standard still must be adopted by the SEC. If adopted, some of the new report standards will first apply to annual audits for years ending on or after December 15, 2017; however, the critical audit matter reporting would not apply until 2019 at the earliest for certain entities.

As the PCAOB notes, there is a need to make the audit report more relevant. In fact, there is a need to make both external and internal audit and auditors more relevant.

More will follow on this; however, I usually don’t spend signification time on new laws, statutes, regulations, rules and standards until (1) they are in fact enacted or adopted, and (2) it is near the time of actual use or requirement.

I do note, however, that this new report and the CAM provision is an interesting development, which perhaps should have occurred years ago. If you click on the above link, and then on the actual standard itself, you will also see that the standard contains worthwhile discussions about critical audit matters, materiality and other topics that are relevant to the standard.

Best, David Tate, Esq. (and CPA, California inactive). Royse Law Firm, Menlo Park Office, California.

Royse Law Firm – Practice Area Overview – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation because this is my primary area of practice)
  •             Business
  •             Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  •             Trade Secrets, NDA, Financial & Accounting Issues, Fraud, Lost Income, Royalties, Etc.
  •             Privacy, Internet, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, Board & Committee, Shareholder, D&O, Lender/Debtor, Etc.
  •             Insurance Coverage and Bad Faith
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, Etc., and Contentious Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions Including AgTech, HealthTech, etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

 

Updated Tate’s Excellent Audit Committee Guide (02172017) – Please Use, And Pass To Others

Below I have provided a link to my updated (02172017) Tate’s Excellent Audit Committee Guide. Please use it, and tell other people who would be interested. Best to you, David Tate, Esq., Royse Law Firm, Northern and Southern California, 149 Commonwealth Drive, Ste. 1001, Menlo Park, CA 94025, (650) 813-9700, Extension 233, http://www.rroyselaw.com

Here’s the link to the updated guide tates-excellent-audit-committee-guide-02172017-with-appendix-a

david-tate-picture-large-cropped

Audit Committee 5 Lines of Defense 07182016

Important – SEC v. United – Administrative Proceeding Relating to United’s Internal Accounting Controls to Prevent Violation of United’s Policies

On December 2, 2016, the SEC issued an Accounting and Auditing Enforcement, Administrative Proceeding Order against United Continental Holdings, Inc. Here is a link to the Order, CLICK HERE

Why is this Order important – because the SEC found that “United failed to design and maintain a system of internal accounting controls that was sufficient to prevent its officers from approving the use of United’s assets in connection with the South Carolina Route in violation of United’s Policies, which prohibited the use of assets for corrupt purposes.” This isn’t a Foreign Corrupt Practices Act case – the alleged corruption or impropriety occurred in the United States. The SEC alleged that United “instituted the South Carolina Route following pressure from David Samson (“Samson”), then the Chairman of he Board of Commissioners of the Port Authority of New York and New Jersey (“Port Authority”). The route provided Samson – who exercised authority and influence as a Port Authority official in matters affecting United’s business interests – with a more direct route to his house in South Carolina.”

The scenario in this case could occur at any time that a public company (1) allegedly acts improperly, and (2) it is alleged that the act was allowed or able to occur because of insufficient internal controls (resulting in a violation of the books and records and internal accounting controls provisions of the Securities Exchange Act, which is automatically alleged in a great number of cases because it is easy in most situations to allege that something unexpected occurred because of inadequate internal controls), and (3) the alleged improper act also allegedly violates some policy or procedure of the public company (i.e., in this case to not use corporate assets for an allegedly corrupt or improper purpose).

What can a company (and the audit committee) do about these possible situations? Review the company’s policies and procedures, and adopt and enact sufficient internal controls, monitored and updated regularly, to ensure that the policies and procedures are followed. But, of course, it is difficult and probably impossible to ensure 100% compliance. I have previously written that the books and records and internal accounting controls provision in the Securities Exchange Act should be amended to include a standard of conduct provision (such as negligence) because it is unreasonable to expect that internal controls, no matter how good, will stop all alleged wrongful conduct.

Below is a screenshot of some of the SEC v. United Order, providing a summary of some of the facts, and I have also included below a link to Tate’s Excellent Audit Committee Guide. Dave Tate, Esq., San Francisco and California

sec-v-united-continental-holdings

The following is a link to Tate’s Excellent Audit Committee Guide (updated October 20, 2016), Click Here

The following is a link to my trust, estate, conservatorship and elder abuse litigation blog, http://californiaestatetrust.com

Audit Committee 5 Lines of Defense 07182016

 

Why do so many practitioners misunderstand risk? Forwarding post by Norman Marks

The following is a link to a new post by Norman Marks, https://normanmarks.wordpress.com/2016/11/26/why-do-so-many-practitioners-misunderstand-risk/ , Why do so many practitioners misunderstand risk? See also the link to “A Revolution in Risk Management” which is provided in Norman’s post. This is a good, i.e., worthwhile, post and discussion – the point being, I believe, is to not be too singularly focused in your evaluation of risks and risk management. I also like Norman’s use of the tree to visually demonstrate the discussion.

Best to you, Dave Tate, Esq., San Francisco and California. Link for Tate’s Excellent Audit Committee Guide http://wp.me/p75iWX-6z