Segway Archives - Compliance Podcast Network

Everything Compliance – Episode 128, The Frozen Edition

Welcome to the only roundtable podcast in compliance as we celebrate our second century of shows. In this episode, we have the quartet of Jonathan Armstrong, Matt Kelly, Karen Woody, and Jay Rosen, all hosted by Tom Fox, joining us on this episode to discuss some of the topics they are watching during this extended cold spell across the US.

1. Matt Kelly looks at the tale of two companies, eBay and SAP, and the disparity in whether monitorships were mandated. He shouts out to Saul Dreier and the Holocaust Survivors Band, who recently played a gig at the White House.

2. Tom Fox shouts out to Sir Elton John for winning an Emmy, thus becoming only the 18th person to hold the prestigious EGOT designation.

3. Jonathan Armstrong looks at the new SFO director and his new focus for the beleaguered agency. He shouts out to Nick Rossi (or whatever name he is using) and his 16 aliases.

4. Jay Rosen takes a deep dive into the SAP Foreign Corrupt Practices Act enforcement action. He shouts out to the Cara Cara naval oranges.

5. Karen Woody looks at the Segway shareholder case and its duty of oversight analysis for an officer. She shouts out to all the folks in Indiana who work and fix things during a deep freeze and those manning homeless shelters.

The members of the Everything Compliance are:

Jay Rosen is Vice President, Business Development Corporate Monitoring at Affiliated Monitors. Rosen can be reached at JRosen@affiliatedmonitors.com
Karen Woody is one of the top academic experts on the SEC. Woody can be reached at kwoody@wlu.edu
Matt Kelly is the Founder and CEO of Radical Compliance. Kelly can be reached at mkelly@radicalcompliance.com
Jonathan Armstrong is our UK colleague, who is an experienced data privacy/data protection lawyer with Cordery in London. Armstrong can be reached at jonathan.armstrong@corderycompliance.com
Jonathan Marks can be reached at jtmarks@gmail.com.

The host, producer, ranter (and sometimes panelist) of Everything Compliance is Tom Fox, the Voice of Compliance. He can be reached at tfox@tfoxlaw.com. Everything Compliance is a part of the Compliance Podcast Network.

FCPA Compliance Report – Karen Woody on Officers Duty of Oversight

Welcome to the award-winning FCPA Compliance Report, the longest running podcast in compliance. In this episode, Tom Fox welcomes Professor Karen Woody and they take a deep dive into the Segway case from Delaware.

The bottom line is that proving bad faith and breaching the duty of oversight remains a challenging task. The conversation delved into the fiduciary duties of directors and officers, specifically the duty of care and the duty of loyalty. The duty of care requires fiduciaries to be well-informed about material information and exercise prudence in decision-making. On the other hand, the duty of loyalty necessitates undivided interests towards the corporation, with no conflicts of interest or self-dealing.

The duty of oversight, derived from the landmark Caremark case in 1996, is an extension of the duty of loyalty. It requires the establishment of information reporting systems and compliance programs to inform senior management and the board about potential issues. There are two prongs to bring a duty of oversight claim: the systems or information prong and the red flag prong. The former focuses on the absence or ineffectiveness of systems, while the latter deals with the conscious disregard of red flags.

However, proving bad faith and breaching the duty of oversight is a high bar to clear. The Caremark standard is challenging to meet, and most cases are dismissed on a motion to dismiss. The recent Segway case, following the McDonald’s case, indicated a pushback against lowering the bar for officers compared to directors. The interpretation of the duty of oversight remains stringent, emphasizing the need for strong evidence of bad faith.

The conversation concluded by acknowledging the importance of context and the specific facts of each case. While there has been a slow march of weakening the Caremark standard in some cases, the facts in those instances were particularly egregious. The recent cases discussed in the episode did not exhibit the same level of egregiousness, leading to a retraction and a reaffirmation of the high bar set by the Caremark standard.

Resources:

Karen Woody on LinkedIn

Tom Fox

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