This blog primarily discusses litigation and disputes; directors, officers, boards and committees including audit and governance; authorities, responsibilities and rights; liability and compliance with laws; governance and leadership; risk management processes; the workplace; communications and optics; evidence and trials; and mediation, dispute resolution and mediator services. David Tate, Esq., California – Email: dave@tateattorney.com – see also http://californiaestatetrust.com – a blog discussing trust, estate, elder, conservatorship, power of attorney, fiduciary, beneficiary and probate court litigation and contentious administrations
I have provided below a jpg of my simple risk and uncertainty management process slide – a sample ten-point process – or for a more clear picture click on the download link below.
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
The following is a link to an article by Hedley Lawson of Aligned Growth Partners discussing new SEC amendments to Regulation S-K and requiring disclosure of human capital resources measures and objectives that the company focuses on in managing its business:
I particularly note (and I have pasted below) the discussion wherein Hedley lists broad categories that should receive consideration while also recognizing that “each company will need to evaluate its own particular circumstances to identify its human capital resources and determine their materiality to an understanding of its business.” The categories are also helpful for consideration in the context of the employer and workforce component of the “S” (social) criteria in ESG (environmental, social and governance). The following are the broad categories that are listed in the article:
CATEGORY POTENTIAL TOPICS Workforce governance · Board or committee oversight of human capital strategy · Role and expectations of the Chief Human Resources Officer · Legal and ethical compliance Workforce composition · Agile and transformational talent acquisition and recruiting · Meaningful, measurable, and sustainable diversity, equity, and inclusion · Experience and education of workforce Workforce stability · Voluntary and involuntary turnover analytics · Actionable succession planning and employee promotability · Meaningful employee satisfaction surveys Workforce skills and development · Professional and personal development opportunities Workforce culture · Employee engagement · Work-life initiatives · Employee health, safety, and well-being programs · Employee recognition programs Workforce compensation (in the absence of a Compensation Committee) · Gender, racial, and generational pay equality · Incentives and cash and non-cash benefits · Targeted market compensation data and analysis
More to follow on these topics including human capital and ESG + Sustainability.
Best to you. David Tate, Esq.
——————————————————————–
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only
Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas
Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrationshttp://californiaestatetrust.com
Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, ESG + sustainability, and risk managementhttp://auditcommitteeupdate.com
My law practice primarily involves the following areas and issues:
Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation
Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.
Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities
Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
Misappropriation of trade secrets.
M&A disputes.
Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
Buy-sell disputes.
Funding and share dilution disputes.
Accounting, lost profits, and royalty disputes and damages.
Insurance coverage and bad faith.
Access to corporate and business records disputes.
Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.
Investigations, Governance, Boards and Committees, Officers, and Responsibilities and Rights
Corporate, business, nonprofit and governmental internal investigations.
Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, compliance, ESG, sustainability, etc.; and advising audit committees, governance committees, officers, directors, and boards.
Mediator Services and Dispute Resolution
Trust, estate, elder and elder abuse, conservatorship, power of attorney, and other probate court cases.
Business: breach of contract.
Business: owner, founder, partner, shareholder, investor, board and committee, officer, and governance disputes.
Employment and workplace, discrimination, wrongful termination, and harassment.
I have provided below a link to a pdf of a new paper (September 2020) that is written as “the result of a collaboration between the PRI and the Climate Risk Initiative at UC Berkeley School of Law’s Center for Law, Energy & the Environment.” The UNEP Finance Initiative also appears to be an author or sponsor.
The paper and its recommendations are not law. However, the paper is potentially (i.e., appears to be) more than simply discussion when you view the Acknowledgements (page 4) and the Forwards (pages 5-7).
The paper contains 40 recommendations in 7 categories which encourage California to enact legislation and/or regulations that require ESG standards or processes and disclosures for the listed entities and organizations.
I will not be spending much time on this paper for the reason that as a general rule I don’t spend much time on discussion papers that are not proposed or actual legislation, regulations or rules. However, I am mentioning this paper because I am presuming that it was written with at least some buy-in from other people who have the authority to make some or all of the provisions enforceable by law. And I note that at page 26, under the heading “Challenges” with respect to ESG integration, the paper notes “A lack of consistent, comparable, robust, and widely available ESG data . . . ,” and the paper also does contain the 40 specific recommendations many of which relate to statutes (law) or regulations (also law).
One additional comment about the paper and ESG standards, while the paper in part discusses legislation to require and mandate that certain non-governmental businesses implement certain ESG standards and reporting or disclosure, the paper also discussed or provides ESG recommendations for governmental organizations in California – for which I presume that ESG standards and reporting (i.e., standards and reporting for governmental entities and organizations) could be ordered or required immediately or relatively easily right now – thus, one approach would be for governmental entities and organizations to lead the way by example.
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only
Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas
Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrationshttp://californiaestatetrust.com
Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, ESG, and risk managementhttp://auditcommitteeupdate.com
My law practice primarily involves the following areas and issues:
Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation
Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.
Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities
Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
Misappropriation of trade secrets.
M&A disputes.
Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
Buy-sell disputes.
Funding and share dilution disputes.
Accounting, lost profits, and royalty disputes and damages.
Insurance coverage and bad faith.
Access to corporate and business records disputes.
Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.
Investigations, Governance, and Responsibilities and Rights
Corporate, business, nonprofit and governmental internal investigations.
Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.
At the bottom of this post I have included a link to an article in Forbes that I find worthwhile for beginning the steps toward your design and implementation of ESG.
One of the current difficulties with starting to design and implement ESG for your organization is that there continues to be no single definition or list of criteria for exactly what ESG is, and, thus, what is included in ESG. Perhaps related, but really a different issue, is that there is no agreed upon standard or process for how to audit or even evaluate ESG from one organization to the next. For example, the following are some of the various standards that have been developed for ESG standards and evaluating ESG, and which contain their various respective criteria and components including for example SASB (Sustainability Accounting Standards Board), GRI (Global Reporting Initiative), UN SDGs (UN Sustainable Development Goals), MSCI, ISS ESG, and Sustainalytics (Morningstar), to name some.
However, stepping back a few steps from the above paragraph, it can also be argued that the lack of one or two definitive standards might also be a benefit for the majority of organizations that want to start designing and implementing their ESG. I say that because while a significant focus has been directed toward ESG in public companies and possible required regulations, all of which takes time and has taken time and regulations and legal requirements whatever they are and whatever they might become will in any event be a progression of starts and stops, the fact is that the great, great majority of organizations are nonpublic, nonprofit and governmental to which legal requirements for public companies will not apply, or only might at some point become relevant but typically not in a legal required sense.
There is in fact no obstruction to any organization, whether public, nonpublic, nonprofit or governmental, designing, implementing, and even reporting ESG. That having been said, however, depending on the type of organization “reporting” and what the organization says or represents about its ESG will require consideration from a legal perspective, but that also is true about everything that the organization reports or says or represents about its operations, policies, conduct, governance, etc.
Looking more at specific design and implementation of ESG, the following is a link to an article in Forbes that I find worthwhile for beginning the steps toward your design and implementation of ESG: “How to Operationalize ESG” https://www.forbes.com/sites/betsyatkins/2020/05/08/how-to-operationalize-esg/?sh=601883294835. One of the points is that the organization has the ability, and even for public companies at least in part the ability, to design and implement its own ESG and can start small, limited or specifically focused and can then grow from there, keeping in mind, of course, that what the organization reports or says or represents about its ESG will require consideration from a legal perspective.
Best to you. David Tate, Esq.
——————————————————————–
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only
Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas
Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com
Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management http://auditcommitteeupdate.com
My law practice primarily involves the following areas and issues:
Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation
Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.
Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities
Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
Misappropriation of trade secrets.
M&A disputes.
Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
Buy-sell disputes.
Funding and share dilution disputes.
Accounting, lost profits, and royalty disputes and damages.
Insurance coverage and bad faith.
Access to corporate and business records disputes.
Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.
Investigations, Governance, and Responsibilities and Rights
Corporate, business, nonprofit and governmental internal investigations.
Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.
Below I have provided a link to a short video on youtube in which I discuss a simple nine point risk management and ERM process. Please do feel free to also pass this information to anyone else who might be interested.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing as a lawyer in California only
———————————————————————-
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only
Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas
Blogs:
Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com
Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management http://auditcommitteeupdate.com
My law practice primarily involves the following areas and issues:
Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation
Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.
Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities
Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
Misappropriation of trade secrets.
M&A disputes.
Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
Buy-sell disputes.
Funding and share dilution disputes.
Accounting, lost profits, and royalty disputes and damages.
Insurance coverage and bad faith.
Access to corporate and business records disputes.
Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.
Investigations, Governance, and Responsibilities and Rights
Corporate, business, nonprofit and governmental internal investigations.
Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.
Below I have inserted a short video in which I discuss governance and the term “governance.” Please do feel free to pass this information to anyone else who might be interested.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing as a lawyer in California only
———————————————————————-
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only
Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas
Blogs:
Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com
Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management http://auditcommitteeupdate.com
My law practice primarily involves the following areas and issues:
Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation
Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.
Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities
Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
Misappropriation of trade secrets.
M&A disputes.
Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
Buy-sell disputes.
Funding and share dilution disputes.
Accounting, lost profits, and royalty disputes and damages.
Insurance coverage and bad faith.
Access to corporate and business records disputes.
Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.
Investigations, Governance, and Responsibilities and Rights
Corporate, business, nonprofit and governmental internal investigations.
Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.
David W. Tate, Esq., San Francisco and California – dave@tateattorney.com
You may have heard that the U.S. Department of Justice, Criminal Division has updated its Evaluation of Corporate Compliance Programs (June 2020). I have provided below a link to the updated guidance. The changes can be and are important.
The updated guidance will be discussed in many legal articles and blog posts. And I have not had the time to digest all of the changes. However, for example, below I have provided a snapshot of a paragraph that has been revised and expanded in the Introduction section, and also a snapshot of the revised three fundamental questions (note the revisions to number 2 requiring that the program be adequately resourced and empowered to function effectively). The third fundamental question also still remains challenging, i.e., “Does the corporation’s compliance program work” in practice, and what do you have to do to be able to make the determination that it does “work”?
Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.
I am also the Chair of the Business Law Section of the Bar Association of San Francisco.
Blogs
Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com
Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management http://auditcommitteeupdate.com
My law practice primarily involves the following areas and issues:
Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation
Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.
Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities
Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
Misappropriation of trade secrets.
M&A disputes.
Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
Buy-sell disputes.
Funding and share dilution disputes.
Accounting, lost profits, and royalty disputes and damages.
Insurance coverage and bad faith.
Access to corporate and business records disputes.
Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.
Investigations, Governance, and Responsibilities and Rights
Corporate, business, nonprofit and governmental internal investigations.
Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.
Mediator Services and Conflict Resolution
Mediation and Conflict Resolution Hexagon Matrix to Help Achieve Resolution and Settlement – Dave Tate, Esq.
One possible definition of “Governance” – from the softer side of my blogging:
“Of or relating to an entity, organization, group, or person’s authority and exercise of authority, leadership, decision-making, ability to communicate and communications, accountability, transparency, expertise, availability to be questioned or challenged, open-mindedness, and trustworthiness, and processes, style and optics relating thereto.”
Governance also is situational and transitional, and depends on the particular facts and the optics at hand.
Best to you, Dave Tate, Esq. (San Francisco and California)
———————————————————————-
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.
I am also the Chair of the Business Law Section of the Bar Association of San Francisco.
Blogs
Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com
Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management http://auditcommitteeupdate.com
My law practice primarily involves the following areas and issues:
Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation
Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.
Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities
Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
Misappropriation of trade secrets.
M&A disputes.
Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
Buy-sell disputes.
Funding and share dilution disputes.
Accounting, lost profits, and royalty disputes and damages.
Insurance coverage and bad faith.
Access to corporate and business records disputes.
Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.
Investigations, Governance, and Responsibilities and Rights
Corporate, business, nonprofit and governmental internal investigations.
Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.
I have pasted below my post from May 28, 2019, because of the discussion about going concern uncertainties. Obviously in this economic environment a going concern issue might be pressing for more entities than usual.
And if you are interested in CAMs (critical audit matters), the May 28, 2019, post also in part discusses CAMs and provides a link to a prior May 9, 2019, post that also discussed CAMs. Subsequent to the May 9 and 28, 2019, posts I have also provided comments about CAMs in three additional posts – those subsequent posts and links to those posts are as follows: July 17, 2019 https://wp.me/p75iWX-im, September 22, 2019 https://wp.me/p75iWX-k8, and February 22, 2020 https://wp.me/p75iWX-pl.
I don’t hear or see much in the news about disclosures about an entity’s going concern, but I have a feeling that this is going to become a bigger issue for certain public companies, their boards and audit committees, and their auditors. Evaluating going concern is a complicated topic – thus, in this post I am highlighting one aspect, but an important aspect. See, FASB ASU No. 2014-15, and subsequent materials relating thereto. I suspect that most people would conclude that evaluating a potential issue relating to going concern involves, or depending on the circumstances could involve, especially challenging, subjective, or complex auditor judgment – thus, potentially raising critical audit matters or CAMs. Click on the following link https://wp.me/p75iWX-fr for a prior summary post about CAMs. I digress here for one comment: in regard to CAMs, one might ask, for example, “When are the circumstances of an auditor’s judgment simply ‘challenging’ v. ‘especially challenging’”?
Going concern can generally be defined as an evaluation of the entity’s expected ability to continue as an ongoing viable going concern business entity within one year after the date that its financial statements are issued (or within one year after the date that the financial statements are available to be issued, when applicable). Thus, for example, obviously for some business entities it can become a question of liquidity or liquid assets v. rate of cash burn. For the purpose of this post, I am looking at this issue only from an accounting/auditing viewpoint. Many other issues can arise, such as, for example, possible shareholder, investor, and creditor rights, and possible officer, director, and shareholder or majority shareholder liability relating thereto.
Now to the single point of this post, ASU No. 2014-15 provides that when evaluating conditions and events as to whether there is substantial doubt about an entity’s ability to continue as a going concern, the “initial” evaluation does not take into consideration the potential effect of management’s plans that have not been fully implemented as of the date that the financial statements are issued (for example, the initial evaluation might not take into consideration plans to raise capital, borrow money, restructure debt, or dispose of an asset, that have been approved but that have not been fully implemented as of the date that the financial statements are issued). Again, I digress for one comment: in the above discussion, consider, for example, how to evaluate when a matter is “approved” v. “fully implemented.”
Importantly, I note, however, that later in the going concern evaluation process, mitigating factors should be taken into consideration including, for example, the probability that management’s plans will be effectively implemented within one year after the date that the financial statements are issued, and the probability that management’s plans, when implemented, will mitigate the relevant conditions or events that raise substantial doubt about the entity’s ability to continue as a going concern within one year after the date that the financial statements are issued. Thus, in the evaluation process there is a timing aspect to considering possible mitigating factors: first they are not considered, but subsequently they are considered including their probability of implementation and success. Obviously, the going concern evaluation can be or can become complicated.
Best to you, Dave Tate, Esq. (San Francisco and California)
———————————————————————-
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.
Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.
I am also the Chair of the Business Law Section of the Bar Association of San Francisco.
Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management http://auditcommitteeupdate.com
My law practice primarily involves the following areas and issues:
Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation
Trust and estate disputes and litigation, and contentious administrations representing fiduciaries and beneficiaries; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.
Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities
Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
Misappropriation of trade secrets
M&A disputes
Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes
Buy-sell disputes
Funding and share dilution disputes
Accounting, lost profits, and royalty disputes and damages
Access to corporate and business records disputes
Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.
Investigations, Governance, and Responsibilities and Rights
Corporate, business, nonprofit and governmental internal investigations
Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards
The following are copies of the tables of contents of three of the more formal materials that I have written over the years about accounting/auditing, audit committees, and related legal topics – Accounting and Its Legal Implications was my first formal effort, which resulted in a published book that had more of an accounting and auditing focus; Chapter 5A, Audit Committee Functions and Responsibilities, for the California Continuing Education of the Bar has a more legal focus; and the most recent Tate’s Excellent Audit Committee Guide (February 2017) also has a more legal focus:
The following are additional materials that you might find useful:
Audit Committee Self-Evaluation Process and Format (and for Boards and Other Committees) – click on the following link https://wp.me/p75iWX-sd for my March 19, 2020, post with an attachment to the discussion and paper.
An internal investigation summary overview page from a prior blog post which you can find at https://wp.me/p75iWX-dk if the below scan is too difficult to read (and you will also find other posts about investigations on my blog):
A blog discussing the law, D&O, governance, liability and other aspects of public and private businesses, not for profit organizations, and governmental entities – see additional detail below - note: sometimes I post information just to pass it along on these topics (not an endorsement), and sometimes I provide only brief comments or no comments, not a more full discussion. 
