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Global Capital Markets & the U.S. Securities Laws 2014: Raising Capital in an Evolving Regulatory Environment


Speaker(s): Barbara A. Stettner, Carol Phethean, Daniel K. Winterfeldt, Eric Pan, Eric W. Blanchard, Joan E. McKown, Joseph P. Babits, Linda Chatman Thomsen, Marty Dunn, Mary B. Tokar, Matthew A. Chambers, Michael D. Mann, Nicolas Grabar, Susan Baker, Susan C. Ervin, Wayne E. Carnall, Z Julie Gao
Recorded on: Jun. 4, 2014
PLI Program #: 51339

Barbara Stettner is a member of A&O’s global Financial Services Regulatory practice and managing partner of the Washington, DC office. She represents banks, asset managers, broker-dealers, and other financial institutions on regulatory obligations in domestic and cross-border matters involving securities distributions and fundraising activities, including through crowdfunding platforms and over the blockchain, Fintech and virtual currency/ICO trading, lending and advisory platforms, and other regulatory matters under the Securities Exchange Act of 1934, the Investment Advisers Act of 1940, and the Bank Secrecy Act. Previously, Barbara was at the SEC’s Division of Trading and Markets, as Special Counsel in Office of the Chief Counsel, Attorney-Advisor in the Office of Risk Management, and Senior Counsel in the Office of International Affairs. According to Chambers USA, Barbara receives accolades for the reasoned regulatory compliance advice she provides to her clients: “she is a ‘real out-of-the-box thinker’ and is ‘one of the best to get in that area to answer your questions.’”


Eric J. PAN is Associate Director of the Office of International Affairs at the U.S. Securities and Exchange Commission where he oversees international regulatory policy and comparative law for the Commission. He has represented the SEC in the Financial Stability Board, International Organization of Securities Commissions, OTC Derivatives Regulators Group, US-EU Financial Markets Regulatory Dialogue, and various other multilateral and bilateral fora. Before joining the SEC, he was a professor at the Benjamin N. Cardozo School of Law in New York, conducting research on financial regulation, corporate law, securities law and international law, and director of The Heyman Center on Corporate Governance. Mr. Pan is a member of The American Law Institute, an editorial board member of the Journal of Financial Regulation and Journal of Regulation, and an advisory board member of the Centre for Financial Regulation and Economic Development in Hong Kong. He received his J.D. from Harvard Law School, M.Sc. from the University of Edinburgh, and A.B. from Harvard College.


Joseph is the lead US Securities Counsel for Royal Dutch Shell, plc group of companies. He advises on all aspects of US Securities laws and corporate disclosure.  He has represented and defended Shell in investigations by the US Securities and Exchange Commission, the US Senate Permanent Subcommittee on Investigations and the Department of Justice. He has extensive knowledge with regard to UK and EU securities and disclosure regulations. He also is an advisor to Shell Disclosure Committee and a member of Shell’s Reserves Committee and Financial Controls and Reporting Committee. 

Prior to joining Shell, Joseph spent more than decade with the US Securities and Exchange Commission where he was Counsel to Commissioner Isaac C. Hunt Jr. and Special Counsel in the Office of Chief Counsel in the Division of Corporation Finance, where he focused on rulemaking and interpretive advice. He also was the recipient of the SEC’s Capital Markets Award.


Martin Dunn is senior of counsel based in Morrison & Foerster’s Washington, D.C. office. Prior to his career in private law, Mr. Dunn spent 20 years at the U.S. Securities and Exchange Commission, having served as Chief Counsel, Deputy Director and Acting Director of the SEC’s Division of Corporation Finance, as a highly respected counselor to public companies. Mr. Dunn “is an immensely respected regulatory expert… He provides high-end securities counseling on regulatory compliance and transactional matters.” as noted in Chambers USA.

Fortune 500 clients turn to Mr. Dunn for his skillful counsel on critical issues they face. He offers a unique insider's perspective and clients admire his ability to apply practical guidance to situations that they face every day. He provides guidance on corporate governance and securities laws to newly formed publicly traded companies as well as to established ones. Mr. Dunn counsels companies through the public offering process, including compliance with the SEC requirements and responses to SEC comments.

In his role with the SEC, Mr. Dunn supervised the Corporation Finance Division’s Offices of Chief Counsel, Chief Accountant, Mergers and Acquisitions, International Corporate Finance, Rulemaking, Small Business and Enforcement Liaison. He oversaw many of the SEC’s most significant initiatives on disclosure, governance and capital-raising, including reforming the securities offering process, updating Rule 144, implementing the Sarbanes-Oxley Act, adopting the plain English requirements for prospectuses, implementing electronic proxy delivery, and easing exempt and registered capital formation for small businesses.

Mr. Dunn is top ranked by Chambers USA in the area of Securities Regulation: Advisory, noting that he is a “‘preeminent securities lawyer’ and a ‘true expert’ in the field when it comes to advising on SEC regulation and corporate governance issues” (Chambers USA 2016). He has also been named a recommended lawyer by Legal 500 US for Capital Markets in Debt Offerings, Equity Offerings and High-Yield Offerings and is recognized by Who’s Who Legal: M&A and Governance 2016 as a Corporate Governance Lawyer. During his career at the SEC, he was the recipient of numerous awards, such as the SEC Capital Markets Award, SEC Regulatory Award, SEC Law and Policy Award, SEC Chairman’s Award for Excellence, and the Federal Bar Association’s Philip A. Loomis, Jr. Award.

Mr. Dunn is frequently sought after to speak, write and comment on securities law topics. He is co-editor of the widely read newsletter, The Corporate Counsel a premier publication in the field. He is on the Executive Committee of the Northwestern University School of Law’s Securities Regulation Institute, a past Chair of the Northwestern University School of Law’s Ray Garrett Jr. Corporate and Securities Law Institute, and the University of Texas School of Law’s Conference on Securities Regulation and Corporate Law, and has been on the faculty of the ALI CLE’s Regulation D and Private Placements Conference for more than 20 years. Mr. Dunn also speaks frequently as a member of the faculty of the Practising Law Institute.

Mr. Dunn served as Co-Chair of the Nasdaq Listing and Hearing Review Council and he has been an adjunct professor at Georgetown University Law Center and the University of Maryland School of Law.

 


Mary Tokar was appointed to the International Accounting Standards Board (Board) in January 2013 and was reappointed for a second term in July 2017. Prior to joining the Board, Ms Tokar served as the global leader for KPMG’s International Financial Reporting Group, responsible for KPMG’s dialogue with global accounting regulators and standard-setters. 

At KPMG, Ms Tokar worked with engagement teams and clients in developed and emerging economies on their transition to and application of IFRS Standards. She served as a member of the IFRS Interpretations Committee from 2001 to 2007 and was a KPMG global leader for employee benefit and share-based payment accounting.

Previously, Ms Tokar worked at the US Securities and Exchange Commission (SEC) as the international senior associate chief accountant. Ms Tokar was the lead SEC representative for international accounting issues; she also chaired an international committee of securities regulators working on disclosure and accounting issues for the International Organization of Securities Commissions (IOSCO).

Ms Tokar holds an MBA from New York University’s Stern School of Business, US.


Matthew A. Chambers
Partner

Matthew Chambers' practice focuses on investment management matters. His clients include registered investment companies and investment advisers and private and offshore funds. Before joining private practice, Mr. Chambers served as Associate Director (Regulation) in the US Securities and Exchange Commission's Division of Investment Management. He joined the firm in 1999.

Until 1995, Mr. Chambers served as Associate Director (Regulation) in the US Securities and Exchange Commission's Division of Investment Management. In this capacity, he supervised three offices: the Office of Investment Company Regulation, which is responsible for the review of exemptive applications filed by investment advisers and investment companies; the Office of Regulatory Policy, which writes rules regarding the substantive regulation of investment companies; and the Office of Public Utility Regulation, which administers the Public Utility Holding Company Act of 1935. Mr. Chambers also directed the Division's task force that reexamined investment company regulation and drafted the 1992 report, Protecting Investors: A Half Century of Investment Company Regulation, which set the agenda for mutual fund regulation for several years.

From 1995 to 1999, Mr. Chambers was with Debevoise & Plimpton, where he concentrated on mutual fund, private fund and investment adviser matters.

Honors & Awards

  • Selected by his peers for inclusion in The Best Lawyers in America 2008,2009, 2010 in the area of securities law, and 2011, 2012, 2013 and 2014 in the areas of securities law and mutual funds law
  • Selected as a 2007 Washington, DC Super Lawyer for his outstanding work in securities and corporate finance
  • Recipient of both the SEC Distinguished Service Award and the SEC Supervisory Excellence Award

Practice Area

  • Securities
    • Alternative Investment
    • Futures and Derivatives
    • Investment Management

Education

JD, University of Michigan Law School, 1982, Order of the Coif

BA, Duke University, 1979, Phi Beta Kappa

Bar Admissions

District of Columbia


Michael D. Mann established Richards Kibbe & Orbe LLP’s Washington, D.C. office in 1996. Mr. Mann’s legal practice focuses on international securities regulation and enforcement and the cross-border conduct of business. He provides strategic advice and counseling to clients engaged in business subject to regulation in the United States and throughout the world. He regularly represents public companies and their audit committees, officers and directors in connection with their compliance with U.S. regulatory requirements including the Dodd-Frank, Sarbanes-Oxley, and Foreign Corruption Practice Acts as well as U.S. Economic Sanctions. Examples of Mr. Mann’s recent representations include:

  • Representation of U.S. and foreign private issuers, Boards of Directors and their Audit and Governance Committees in connection with investigations involving allegations of violations of the U.S. securities laws including the Foreign Corrupt Practices Act;
  • Representation of senior officers of U.S. and foreign issuers and hedge funds in connection with SEC investigations and regulatory inquiries in matters involving securities trading, accounting and disclosure, the operation and establishment of internal controls under the Sarbanes-Oxley Act and the application of the Foreign Corrupt Practices Act; and
  • On-going advice to hedge funds and financial institutions in connection with the development of comprehensive compliance programs to address regulatory obligations imposed by U.S. and foreign securities laws and regulations

Prior to entering private practice, Mr. Mann served as an attorney at the U.S. Securities and Exchange Commission, including seven years as the first Director of the Office of International Affairs, and prior to that as Associate Director of the Division of Enforcement. Mr. Mann established the key formal and informal regulatory and enforcement relationships between the SEC and its foreign counterparts throughout the world. Mr. Mann also led the SEC’s development of new regulatory approaches to facilitate access to the U.S. securities markets through cross-border securities offerings.

Mr. Mann has been recognized since 2009 as a “Leading Individual” in the area of Securities Regulation and Litigation by Chambers USA: America's Leading Lawyers for Business.  Mr. Mann was also recognized in the area of Securities Law by The Best Lawyers in America®, which stated that he "is the kind of outside counsel most in-house lawyers seek: he is knowledgeable, responsive and provides his advice in a very calm and effective manner on a wide range of issues."  He is also is a Member of the Council on Foreign Relations, the Board of Advisors to the Securities and Exchange Commission Historical Society and a Member of the Federal Bar Association / Securities Law Committee Executive Council.


Ms. Thomsen, who was the first woman to serve as the Director of the Division of Enforcement at the Securities and Exchange Commission, is a partner in Davis Polk’s Litigation Department and practices in the Washington DC office. Her practice concentrates in matters related to the enforcement of the federal securities laws. She has represented clients in SEC enforcement investigations and inquiries, in enforcement matters before other agencies, including the Department of Justice (various U.S. Attorneys Offices) and the Commodities Futures Trading Commission, in investigations and inquiries from self-regulatory agencies, including FINRA, and in internal investigations. These matters, which are typically non-public, have covered a broad range of securities related subject matters, including insider trading, foreign corrupt practices, financial reporting, manipulation and regulatory compliance. Her clients have included major financial institutions, regulated entities, public companies and senior executives.

Ms. Thomsen returned to Davis Polk in 2009 after 14 years of public service at the SEC. While there she held a variety of positions and ultimately served as the Director of Enforcement from 2005 through February 2009. During her tenure as the Director of Enforcement, she led the Enron investigation, the auction rate securities settlements, the stock options back dating cases and the expansion of the enforcement of the Foreign Corrupt Practice Act.

She is a graduate of Smith College (A.B. ’76, Government (High Honors)) and Harvard Law School (J.D. ’79).


Nicolas Grabar is a partner based in the New York office. His practice focuses on securities regulation and on the representation of large reporting companies, as well as international capital markets. He plays a primary role in the firm’s work for clients including leading Mexican and Brazilian companies, several Fortune 100 companies and global investment banks.

Mr. Grabar has extensive experience in international financings in public and private markets, in U.S. securities law and regulations applicable to foreign issuers, and in the regulation of financial reporting. He has also specialized in the telecommunications and natural resources sectors, and has advised on acquisitions, joint ventures, privatizations and debt restructurings.

Mr. Grabar’s broad expertise includes dealing with the Securities and Exchange Commission in connection with Exchange Act reporting, shareholder proposals, securities offerings, financial restatements and investigations. Over the past year, Mr. Grabar has been one of the lead partners representing longstanding client Petrobras in various matters, including in significant SEC reporting, corporate governance and financing matters.

Mr. Grabar was honored in 2011 as a "Dealmaker of the Year" and in 2010 as a "Dealmaker in the Spotlight" by The American Lawyer. IFLR1000: The Guide to the World's Leading Financial Law Firms, Chambers Global, Chambers USA, Chambers Latin America, The Legal 500 U.S., The Legal 500 Latin AmericaLatin Lawyer 250: Latin America's Leading Business Law Firms, The International Who's Who of Business Lawyers, The International Who’s Who of Capital Markets Lawyers and The Best Lawyers in America repeatedly recognize him as one of the world's best capital markets lawyers.

From 2002 to 2010 Mr. Grabar chaired the annual Practicing Law Institute program on foreign issuers and U.S. securities regulation, and he has served on the securities regulation committees of several bar associations. He is the chair of the Financial Reporting Committee of the New York City Bar Association and a member of the TriBar Committee on Legal Opinions. He has spoken and published on legal opinion practice, securities regulation, international securities offerings, privatizations and securitizations of financial assets. He is a co-author of U.S. Regulation of the International Securities and Derivatives Markets (published by Wolters Kluwer, 10th edition 2011) and is a consulting editor and contributor to The New York Stock Exchange IPO Guide (2nd edition, 2013).

Mr. Grabar joined the firm in 1984 and became a partner in 1991. From 1985 to 1989, he was resident in the Paris office. Mr. Grabar received a J.D. degree, cum laude, from Harvard Law School in 1982 and an undergraduate degree, magna cum laude, from Harvard College in 1978. He also served as law clerk to the Honorable Pierre N. Leval of the U.S. District Court for the Southern District of New York.

Mr. Grabar is a member of the Bar in New York and has been admitted to practice in France. His native language is English, and he is fluent in French and proficient in Spanish and Portuguese.


PricewaterhouseCoopers:

Wayne re-joined the Firm in 2011 as a partner in the National Professional Services Group and supports US and International clients in addressing complex accounting and reporting matters including those that are unique to the SEC regulatory requirements. He is a member of the Firm’s SEC Leadership Team. Wayne was named to the 2013 Global Accounting Power 50 by the International Accounting Bulletin. He is a member of the Board of Directors of the Association of SEC Alumni and the Advisory Board of PLI’s

SEC Institute.

From 1997 to 2007, Wayne was a Partner in the National Professional Services Group where he assisted clients and engagement teams in addressing US GAAP, PCAOB standards and SEC reporting issues primarily for non-US companies. He was also responsible for publishing the Firm’s policy and procedures on matters relating to US GAAP, PCAOB standards and SEC reporting matters relating to non-US companies, and developing training for partners and staff outside of the US. Wayne was a member of the following groups: AICPA International Practices Task Force; PwC Global International Financial Reporting Standards Board; PwC Global 404 Steering Committee. He has worked on many Fortune Global 500 companies.

From 1981 to 1991 Wayne held various positions including senior manager and worked on public and non-public companies in various industries.

US Securities and Exchange Commission – Division of Corporation Finance:

From 2007 to 2011, Wayne was Chief Accountant of the Division of Corporation Finance where he was responsible, in conjunction with other senior officers, for planning and developing polices programs, procedures, and training relating to the financial reporting matters with respect to the work of the Division. He rendered decisions on financial reporting matters relating to the public companies that file with the SEC. He collaborated with the Chief Accountant of the Commission, the Division of Enforcement, and other Divisions and Offices on unique issues and policy matters; worked with other government officials in addressing financial reporting matters. He was responsible for guidance published by the Division on financial reporting matters including the Financial Reporting Manual, guidance for smaller issuers and banks, Compliance and Disclosure Interpretations relating to financial reporting matters, etc. Wayne jointly authorized the issuance of Staff Accounting Bulletins and assisted in drafting a number of Commission rules on a variety of subjects. He worked with the FASB, EITF, PCAOB and IASB in addressing issues of mutual interest. He also served as an observer to the PCAOB’s Standing Advisory Group.

From 1991 t0 1997, Wayne held various positions including Associate Director, Deputy Chief Accountant, Associate Chief Accountant and Staff Accountant.

Publications:

Wayne has published articles in several professional magazines on SEC reporting matters and other accounting/auditing matters including: Accountancy in the UK, Contaduria Publica in Mexico; Der Schweizer Treuhander in Switzerland and The CPA Journal. He is a former member of the Editorial Advisory and Review Board for Accounting Horizons.

Education:

Wayne is a graduate of Alfred University and is a Certified Public Accountant in several states.


Susan L. Baker
Director, Office of International Banking and Securities Markets

Susan L. Baker currently serves as the Director of the U.S. Treasury Office of International Banking and Securities Markets, responsible for managing the Treasury team covering international aspects of U.S. regulatory reform, multilateral financial regulatory issues, and various bilateral regulatory dialogues. Previously, she served as Treasury’s Financial Attaché for Europe (2011-2013 based in Brussels) and for Southeast Asia (2007-2009 based in Singapore) where she engaged private and public sector officials in the region on the full range of Treasury's macro-economic, financial sector, and AML-CFT issues. She also served as the Deputy Director of the Office of International Banking and Securities where she led the team responsible for multilateral financial regulatory issues, including work in the G-20 process and the Financial Stability Board, and covered Western European financial sector issues, including the US-EU Financial Markets Regulatory Dialogue. She also served as a senior international economist analyzing financial sector issues in China, Japan, and Australia, and coordinating U.S. policies on a variety of financial regulatory issues including hedge funds, credit rating agencies, derivatives and insolvency systems. She also led the U.S. delegation to the OECD Steering Group on Corporate Governance, the global standard setter for best practices in corporate governance, and was an active participant in OECD outreach to improve corporate governance in emerging markets. She came to Treasury with a wide range of public and private sector experience, including five years as an international equity fund manager and two as a sell-side banking analyst in Indonesia during the Asian financial crisis. She was also a policy advisor -- with a primary focus on banking and corporate restructuring policy -- for the Indonesian government, USAID, and the World Bank. She has a master's degree in public policy from Harvard and a bachelor's degree in foreign service from Georgetown.


Daniel is a partner in Reed Smith’s Global Capital Markets practice. Currently based in Reed Smith’s London office, Daniel’s practice focuses on representing US, UK, European and Asian investment banks and corporate issuers in a wide range of securities transactions, including Rule 144A and Regulation S equity and debt offerings; Category 3, Regulation S transactions for US companies listing in the United Kingdom; rights offerings; exchange offers; equity-linked securities offerings; initial public offerings and secondary and follow-on offerings of equity securities, including SEC-registered transactions. 

Daniel founded the Forum for US Securities Lawyers in London in 2006  to address US securities issues in the London market across law firms, banks and intermediaries.  The Forum was short-listed by the British Legal Awards in 2009 for ‘Law Firm Innovation’.  The Forum was  'Highly Commended"  by the FT Innovative Lawyers Awards in 2016 in the category ‘Innovation in Navigating Regulation’.

Daniel is also the founder and chair of the InterLaw Diversity Forum, which seeks to promote meritocracy and inclusion for diverse groups in the legal sector.  The InterLaw Diversity Forum was "Highly Commended" by the FT Innovative Lawyers Awards in 2016 for 'Innovation in Human Resources". 

Daniel was named the "Legal Innovator of the Year" at the FT Innovative Lawyers Awards in 2012 for his work in capital markets and diversity and inclusion.  

Daniel's US securities practice is highlighted in various directories:

  • Chamber & Partners 2017 lists Daniel as a 'Notable Practitioner' and writes: "Daniel Winterfeldt …is 'unquestionably one of the best US lawyers in London. His understanding of US securities is great, and he translates it to make issues understandable' ... Clients admire his technical expertise.”
  • Chambers & Partners 2016: “[Daniel] is tenacious, determined and has a deep knowledge of US securities law”, comments one client, who adds: "This enables him to think about solutions that work from a UK and US legal and commercial perspective."
  • Legal 500 2015 recognises Daniel as being a “technically strong and driven” key contact, as well as recommended by Legal 500 for US securities matters.
  • Chambers & Partners 2014 states: “Daniel Winterfeldt is ‘someone you want to have on your side’ according to sources, who also highlight that he is ‘commercial and energetic.’"

Daniel was a member of the Equality & Diversity Committee at the Law Society of England & Wales for six years, and is a member of the Judicial Diversity Forum organised by the Judicial Appointments Commission.    

Daniel was admitted to the Bar of the Supreme Court of the United States in 2013.

Employment History

  • 2016 - Reed Smith: Partner
  • 2011 - CMS Cameron McKenna: Head of International Capital Markets; Diversity and Inclusion Partner
  • 2007 - Simmons & Simmons: US Securities Partner; CR and Diversity Partner
  • 2005 - Jones Day:Senior Associate, US Securities

 


Joan McKown has more than 30 years of experience in Securities and Exchange Commission (SEC) enforcement and financial regulatory matters including investigations, exams, internal investigations, and disputes throughout the United States. She has in-depth knowledge of investigatory issues relating to financial fraud, corporate disclosure, corporate governance, accounting, compliance, private equity, FCPA, broker dealer, investment adviser, investment companies, and insider trading. Joan represents corporations, and financial services firms, and their officers, directors, and employees, counseling them to avoid regulatory scrutiny, and when necessary, resolving matters on the best terms possible.

Prior to joining Jones Day in 2010, Joan was the longest serving chief counsel in the Division of Enforcement at the SEC, where she played a key role in establishing enforcement policies and worked closely with Commission and senior SEC staff. Joan literally wrote the book on SEC enforcement when she oversaw creation of the first version of the SEC Enforcement Manual. As chief counsel, she led hundreds of Wells meetings and settlement negotiations. At Jones Day, Joan has extensive experience submitting persuasive Wells submissions, having reviewed thousands of such submissions while on the SEC staff.

Joan is on the board of trustees of the SEC Historical Society. She also serves on the Executive Committee of the board of trustees of the Legal Aid Society of the District of Columbia. She frequently speaks and writes on SEC enforcement related topics.


Susan Chadwick Ervin is a member of the Financial Institutions Group at Davis Polk & Wardwell LLP.  Her practice specializes in advising financial institutions, investment managers, end users and other market participants concerning derivatives transactions.  Prior to joining Davis Polk, Ms. Ervin served as a Senior Derivatives Adviser and Attorney Fellow at the U.S. Securities and Exchange Commission, where she helped develop new regulatory approaches to the derivatives markets and participated in the agency’s development of an implementation program for the Dodd Frank Act.  Previously, Ms. Ervin led the derivatives practice at a major international law firm and served for more than ten years as Deputy Director and Chief Counsel of the Division of Trading and Markets of the Commodity Futures Trading Commission. She is the co-author of Derivatives Regulation, a leading treatise on the subject, has written extensively on derivatives regulatory issues and is a frequent speaker at continuing legal education programs. She is a former chair of the Derivatives and Futures Committee of the American Bar Association and the Futures Committee of the New York City Bar Association.