Scherzer Blog

Lawsuit shows legal risks in using information from social media

Media sources reported that a settlement was reached January 18, 2011 in a civil rights case re C. Martin Gaskell v. University of Kentucky, whereby the University agreed to pay Gaskell and his attorneys $125,000. Gaskell was a leading candidate in 2007 to be the director of a new observatory at the University of Kentucky; however, he was denied employment allegedly in part because of his apparent views on evolution. Media reports and court documents stated that during the candidate selection process, committee members conducted searches on Gaskell on the Internet, and discovered his personal Web which contained an article entitled “Modern Astronomy, the Bible, and Creation” among other notes. The sources also reported that “Gaskell had given lectures to campus religious groups around the country in which he said that while he has no problem reconciling the Bible with the theory of evolution, he believes the theory has major flaws. He recommended students read … critics

[of evolution] in the intelligent-design movement.”

According to the Courier-Journal, the University “acknowledged that concern over Gaskell’s views on evolution played a role in the decision to choose another candidate.” But it argued that this was a valid scientific concern, particularly with regard to the prospect that “Gaskell’s views on evolution would interfere with his ability to serve effectively as director of the observatory. And there were other  factors, including a poor review from a previous supervisor and UK faculty views that he was a poor listener.”

What is FATF?

FATF, which is the acronym for the Financial Action Task Force, and also known by its French name, Groupe d’action financière (GAFI), is an inter-governmental policy-making organization founded in 1989 by the initiative of the G7. The FATF Secretariat, headquartered in Paris, is comprised of over 30 countries, and has a ministerial mandate to establish international standards for combating money laundering and terrorist financing.

The primary functions of the FATF are to monitor members’ progress in implementing necessary measures, review money laundering and terrorist financing techniques and counter-measures, and promote the adoption and implementation of appropriate measures globally. To date, over 180 jurisdictions have joined the FATF or a FATF‐style regional body, and committed at the ministerial level to implement FATF standards and evaluations. In performing its activities, the FATF collaborates with other international bodies involved in combating money laundering and  terrorism financing, and has established mutual evaluations (see monitoring implementation of the FATF recommendations.)

The FATF does not have a tightly defined constitution or an unlimited life span, and thus periodically reviews its mission. The current mandate of the FATF (for 2004-2012) was subject to a mid-term review and was approved and revised at a ministerial meeting in April 2008 (see FATF standards.)

January 18th, 2011|Educational Series, International|

Unauthorized Banks List

The Office of the Comptroller of the Currency (OCC) issues alerts to provide information about entities engaged in unauthorized banking activities, both offshore and domestic. The alphabetical Unauthorized Banks List, which contains bulletins from 1994 to the present, is intended to aid in the search for names of such entities and detail the problem that prompted the issuance.

January 12th, 2011|Educational Series, Fraud|

Prime Bank Frauds

Prime bank schemes generally claim that investors’ funds will be used to purchase and trade “prime bank” financial instruments on clandestine overseas markets, and generate huge returns. However, neither these instruments, nor the markets on which they allegedly trade, exist. To legitimize the schemes, the promoters distribute documents that appear complex, sophisticated and official. They frequently tell investors that they have special access to programs that otherwise would be reserved for top financiers on Wall Street, or in London, Geneva and other world financial centers. Possible profits of 100% or more with little risk also are touted.

The fraudsters target individuals and entities, including municipalities, charitable associations and other non-profit organizations. They advertise in national newspapers, such as USA Today and The Wall Street Journal, and often avoid using the term “prime bank note” in their spiel. In fact, investors are told that the programs do not involve prime bank instruments so that they appear legitimate.

The Office of the Comptroller of the Currency (OCC) posted the following warning signs of “prime bank” investment fraud:

  • Excessive guaranteed returns

Promises of unrealistic returns, of 20% to 200% monthly, at no risk, are the hallmarks of prime bank fraud.

  • Fictitious financial instruments

Despite credible-sounding names, the “financial instruments” at the heart of any prime bank scheme simply do not exist. Fraudsters frequently claim that the offered financial instrument is issued, traded, guaranteed, or endorsed by the World Bank (Department of Institutional Integrity or Operations Evaluation Department), International Monetary Fund (IMF), Federal Reserve, Department of Treasury, International Chamber of Commerce (ICC), or an international central bank.

  • Extreme secrecy

Fraudsters maintain that the transactions must be kept confidential by all parties, making client references unavailable. They describe the transactions as the best-kept secret in the banking industry, and assert that, if asked, bank and regulatory officials would deny knowledge of such instruments. Investors may be prompted to sign nondisclosure agreements.

  • Exclusive opportunity

Fraudsters claim that the investment opportunities are by invitation only, available to a handful of special customers, and historically reserved for the wealthy elite.

  • Complex presentations

Explanations often are vague about who is involved in the transaction or where the money is going. Fraudsters cover up the lack of specificity by stating that the financial instruments are too technical or complex for non-experts to understand.

Some call the new U.K. Bribery Act “The FCPA on Steroids”

The new law, called the Bribery Act, takes effect in April 2011. It resembles the U.S. Foreign Corrupt Practices Act (FCPA) which bars companies that trade on U.S. exchanges from bribing foreign government officials to gain a business advantage, but the Bribery Act goes beyond the FCPA by not just prohibiting illicit payments to foreign officials, but also bribes between private business people. It holds even if the individual who makes the payment does not realize that the transaction was a bribe.

And the Act’s impact extends beyond U.K.-based companies. It applies to entities with any “business presence” in the U.K., regardless of where the act of briberyoccurs. It also covers bribery by any person with “close connections” to the U.K., including both British citizens and citizens of others countries “ordinarily residing” in the U.K.

According to the Ministry of Justice, the law basically creates three criminal offenses: 1) giving or accepting a bribe designed to induce someone to perform a function improperly; 2) bribing a foreign public official with the intention of obtaining a business advantage, and 3) failing to prevent bribery.

Legal experts say that the most significant development in the law is a company’s strict liability for failing to prevent bribery (by an employee, a joint-venture partner or a subsidiary.) Under the Act, the company can be penalized with an unlimited fine for such actions, and further can be held liable for the acts of bribery by a person “associated” with the company who is trying to obtain a business advantage for the company. And unlike the FCPA, the Act does not exempt from prosecution what are commonly known as “facilitation payments.” (In some parts of the world, it is common practice to pay a small amount of money to ensure that an otherwise legitimate permit is approved in a timely manner.)

While the British government released some draft guidance on the Act in late 2010 and more definitive text is expected in 2011, it is unclear how vigorously the law will be enforced or what resources will be committed to investigating and prosecuting the suspected violations. Ultimately, it will be up to the courts to determine the true impact of the new law.

January 5th, 2011|Educational Series, Legislation|

New Hong Kong accounting rules raise concerns of fraud

Just as global investors are turning to Hong Kong for stakes in China’s growth, they will no longer be able to rely on the comfort of a Hong Kong auditor signing off on financial statements—or more importantly, a local regulator to hold the auditors accountable. A recent change in rules for accounting standards on the Hong Kong’s stock exchange is
raising concerns that fraud will slip through the regulatory cracks. The new rules will cut costs for mainland companies seeking to list in Hong Kong if they choose to prepare one set of financial statements instead of two, but now the companies will have to rely on mainland Chinese authorities to root out fraud.

The rules also go against the trend in other jurisdictions, where regulators are pushing for more due diligence. In the U.S., where 21 of the 27 foreign offerings this year were Chinese, the Public Company Accounting Oversight Board warned auditors not to rely on financials prepared by mainland Chinese accountants and urged them to visit China to check out the companies.

January 5th, 2011|Fraud|

Turning to lie detectors for investment confidence

Media reports say that amid the still unsettled regulations in the wake of the financial crisis, affluent investors are turning to behavioral specialists, looking to find things in the faces and phrases of their fund managers that may not be revealed in financial statements.

Eccentric screening techniques are nothing new to Wall Street. Seigmund Warburg, founder of the investment bank S. G. Warburg & Co., was known for subjecting customers and employees to psychological tests, and evaluating hand-writing samples of job applicants. And these days, requests for deception detection are on the uptick, as acknowledged by lie detector professionals who are turning down repeated orders to analyze subjects for Wall Street firms.

Earlier this year, intelligence sources disclosed to the publication Politico that the CIA, within tight guidelines of its employment policies, allows agents to moonlight in the private sector, and that some of them work as “human lie detectors.” Calling deception detection an “arcane field,” Politico reported that such experts recognize the verbal and nonverbal cues that indicate someone may be lying, and the people under scrutiny never know they’re being evaluated. Politico recounted an incident from 2005 where a large hedge fund, through a third-party, retained CIA-trained analysts to remotely listen in on a quarterly earnings status call from executives at UTStarcom. During the call, the agents noted some suspicious responses by the interim CFO, and specifically about revenue recognition. They subsequently cautioned that the company most likely would post poor results in the third-quarter. And sure enough, the prediction came true: a day after the below-expectations results were released, the stock closed at $5.64. It had been trading at $8.54 when the CIA listened in on the call in August.

So exactly what verbal clues tipped off the agents? In this case, it was a “detour statement” when the interim CFO qualified his response to a revenue recognition question by referring back to an announcement from a previous quarter, and avoided further comments on any related issues. The executives on the call also projected low confidence, had an underlying concern and did not readily come forth with information.

According to corporate lie detection experts, there is a myriad of verbal clues that may be indicators of dishonesty. Shifts in language patterns, such as switching from the first person to the third person, i.e., suddenly speaking on behalf of “the firm” or “the team,” and quick “rehearsed” responses may be red flags. Statements that contain the words “honestly,” “frankly” or “basically” and phrases such as “as I said before” and “I swear to God” also have been linked to deception. Attacking the questioner with “How dare you ask me something like that?” too may point to someone who is uncomfortable with the untruth, as well as having a selective memory as indicated by the phrase “to the best of my knowledge.” Additionally, complaints – “How long is this going to take?” – and overly courteous responses – “yes, sir” – have been found common in liars.

And of course there are physical indicators of lying, with the main ones being facial twitches, changes in breathing tempo, and dilated pupils. Professional human lie detectors say that people who are uneasy with deception will show that in motions such as micro-expressions—brief flashes of fear or other changes in a face—or concealing positions like crossing legs, or sitting motionless. Shifting anchor points, grooming gestures such as adjusting clothes, hair or eyeglasses, picking at fingernails, and cleaning the surroundings by straightening paper clips on the table or lining up pens are also possible indicators of honesty transgressions.

Skeptics, however, abound. In a May 2010 report, even the Government Accountability Office called into question the effectiveness and the scientific foundation of deception detection techniques. And many experts agree that even the most common dishonesty signs are not universal and detection is most effective when the analyst can establish an “honesty” pattern and then look for deviations.

When screening a fund manager, investors still like to see experience, a consistent record and good returns. And a comprehensive background investigation that provides such information may be more predicting of future behavior and honesty than a Pinocchio’s nose. But human lie detectors can identify “hot spots” for extra probing, and combined with a traditional due diligence, buy investors a reasonable peace of mind.

January 4th, 2011|Educational Series, Fraud|

Scraped information for sale to employers

Employers legally can’t discriminate based on gender, race and other factors which they may get from social-media profiles, but some indeed are using such data in their employment decisions. Media sources reported that scraping for employment purposes is growing, and that an employment screening company in Florida began offering limited social-networking data, including some that is scraped, about a year ago. Scrapers operate in a legal gray area. Internationally, anti-scraping laws vary, and in the U.S., court rulings have been contradictory. Media reports quoted Eric Goldman, a law professor at Santa Clara University saying: “Scraping is ubiquitous, but questionable. Everyone does it, but it’s not totally clear that anyone is allowed to do it without permission.”

Scraping to find your real name

PeekYou.com has applied for a patent for a way to, among other things, match people’s real names to pseudonyms they use on blogs, Twitter and online forums. A statement on its patent application describes the invention as “a method for aggregating over a network, personal information available from public sources.”

PeekYou’s people-watch Web site offers records of about 250 million people, primarily in the U.S. and Canada. PeekYou says it also is starting to work with listening services to help them learn more about the people whose conversations they are monitoring. It claims to provide only demographic information, not names or addresses.

December 22nd, 2010|Educational Series|

Social Security number (SSN) randomization to take effect in June 2011

The Social Security Administration (SSA) describes the SSN randomization as a forward-looking project to help protect the integrity of the Social Security number by establishing a new random assignment methodology. The SSA promises to still provide online services for direct SSN verifications, as follows:

  • SSA’s Social Security Number Verification Service – available to employers.
  • Department of Homeland Security’s eVerify Service – available to employers to determine employment eligibility.
  • SSA’s Consent-Based SSN Verification Service – available to enrolled private companies and government agencies for a fee.

Federal and state agencies will continue to maintain several SSN verification
systems, as outlined at http://www.ssa.gov/gix/eprojects.html.

December 21st, 2010|Educational Series|
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