Understanding the basics of employee personnel files – forwarding from Weintraub Tobin

I have provided below a link to a video (YouTube) from California law firm Weintraub Tobin discussing personnel files – this is a good discussion for every employer to know and to be mindful of, or simply to review, and also can relate to workplace and employer/employee compliance, risk and liability management, privacy, and perhaps even some aspects of ESG.

It should not be necessary for me to add; however, the video and discussion apply only to California people, situations and entities, and only to California law. Please also see my limitations and disclaimer below – and, I am not associated with Weintraub but am merely forwarding their video.

* * * * * * *

Regards, and best to you,

David Tate, Esq.

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

David Tate, Esq. – mediator and dispute resolution services

Dear Connections and Others: 

I am making this post to discuss my services as a mediator. I provide reasonably priced mediator and dispute resolution services, in addition to my litigation practice. Toward the end of 2022 I started to expand my mediator practice to about 20% of my practice. I provide services in California only.

My services as mediator have primarily been in the following litigation: trust, estate, elder abuse, conservatorship, POA, accounting, contentious administration, real property, breach of contract, commercial, and internal business, co-owner, board/director/committee, shareholder, founder, investor, and workplace cases and disputes. I also have experience in other areas. 

Please feel free to contact me informally to discuss mediation and dispute resolution opportunities generally or a specific case or situation where a mediator is required or could simply be helpful. I like helping people get to settlement, answers, resolution and moving forward.    

My current rates are the following (although I have flexibility in some cases): 

Remote/zoom mediations: current standard mediator rate: $300 per hour plus a $200 setup fee, to be apportioned between the parties. 

In person mediations: current standard mediator rate: $300 per hour plus a $200 setup fee, to be apportioned between the parties – plus a per party room cost of approximately $60 per hour (or less if possible).   

You will find some of my mediator discussions on my blogs in addition to other posts (see blog addresses below).

     Recent blog posts on http://californiaestatetrust.com: mediation tips video, Gordon v. Ervin Cohen & Jessup LLP. 

     Recent blog posts on http://tateattorney.com: SV Bank, internal audit, California mental health. 

Thank you. Again, please also feel free to contact me informally. Email: dave@tateattorney.com

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

* * * * * * *

Best to you, David Tate, Esq. – Email: dave@tateattorney.com

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Silicon Valley Bank – what’s the plan and looking for answers, or looking for answers and what’s the plan . . . ?

Silicon Valley Bank – what’s the plan and looking for answers, or looking for answers and what’s the plan . . . ?

March 14, 2023, update: the Federal Reserve Board has announced that Vice Chair for Supervision Michael S. Barr is leading a review of the supervision and regulation of Silicon Valley Bank, with the review to be publicly released by May 1. Tate comments – that sounds like a fairly quick review – perhaps it will not be as in-depth.

In some ways this post is strangely similar to a recent December 8, 2022, post pertaining to FTX (Fallout from FTX (and continuing) https://tateattorney.com/2022/12/08/fallout-from-ftx-and-continuing/

Obviously the FTX and Silicon Valley Bank situations are different. Any yet, in both situations many financially sophisticated people, depositors, savers, and investors have lost or will lose money (some a lot of money), or have otherwise been caught up in the collapse. Below are some of my comments currently.

The chorus is the same: what’s the plan and looking for answers, or looking for answers and what’s the plan . . . . (and also how could this happen, and who is to blame, of course)?

Just because something unexpected or negative or bad happens does not by itself mean that someone is legally at fault or liable for wrongdoing or loss, or that there were related reliance, causation, damages, etc. We need more information to evaluate the issues – obviously there needs to be an in-depth investigation (or investigations) by qualified investigators, which presumably is (or are) already in progress. Civil lawsuits will be filed for money damages. Is there a possibility of criminal claims – it is too early to evaluate or to know.

Post-collapse actions, representations and statements also will be evaluated. In the FTX situation significant post-collapse interviews and public statements were made (ill-advisedly in my view) (and apparently without an attorney present, and perhaps without sufficient pre-interview or statement preparation, and possible agreed-upon procedures, questions, and assurances, and possible post-interview review, input and authorization procedures).

The people who are already caught up or who might become caught up in this wear many different hats and hold different positions.

It is also sounding like there might be or already is a need for governmental leadership to publicly provide reassurance (with specifics and evidence, not generalities) about the integrity, safety, trustworthiness, fairness, and governmental oversight and regulation of the banking system and institutions, investment system and institutions, and entity controls and processes.

As the comments and accusations start slinging, remember that being caught up in the situation does not by itself mean or establish legal fault or liability for wrongdoing or loss (i.e., authority, duty, breach, causation, liability, damages, mitigation, etc.) – possible hats and being caught up in the situation include the following people and possible others:

  • CEO (obviously);
  • CFO (obviously);
  • Other CxOs;
  • Board/directors, and possible committees (i.e., audit, governance, risk) (obviously);
  • People who are in SVB’s financial and banking risk function;
  • Possible people within SVB who directly or indirectly acted or did not act;
  • Possible people within SVB who made or who did not make representations;
  • Possible people who directly or indirectly took or obtained related money or assets;
  • Possible people who sold or liquidated SVB stock or other positions;
  • Possible other entities and people who became directly or indirectly involved;
  • External independent auditors – this is a complicated evaluation, for example: what services were retained and were performed, what standards and procedures applied and/or were or perhaps should have been performed, what “opinions” or other reports were provided, what was known, what was unknown, what perhaps should have been known, who was entitled to rely, causation, etc.;
  • General counsel – historically generally not; however, potential general counsel exposure has been expanding in certain circumstances, possibly such as for red flags, entity controls, and related diligence;
  • Internal auditors – historically generally not; however, internal audit/auditors were recently disciplined in the Wells Fargo Bank situation;     
  • Celebrity endorsers (if any) – see my prior post pertaining to FTX https://tateattorney.com/2022/11/23/ftx-cryptocurrency-celebrity-endorser-liability-exposure-in-the-news/;
  • Insurers;
  • Regulators (such as where were they and what were they doing or not doing in all of this);
  • Investor/investment entities and/or advisors or representatives;
  • Other banks and lenders, possible guarantors;
  • Investors (including the “investment small” people who are really at possible unrecoverable loss);
  • Customers, depositors, and savers (including the “financially small” people who are really at possible unrecoverable loss);
  • Possible third-party entities with which SVB contracted;
  • Professional licensing entities; and
  • More: possibly/probably more.

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

* * * * * * *

Best to you, David Tate, Esq.

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Interesting clips from the Internal Audit Foundation 2022 Premier Global Research – and this is a time of opportunity for internal audit to provide value and help to others

I have provided below clips from the Internal Audit Foundation 2022 Premier Global Research paper pertaining to how internal audit primarily functions and reports from an overview perspective. This is a time of opportunity for internal audit to provide help and value to boards and board committees including audit and governance committees, management, and internal operations. One key is to identify, educate and connect internal audit with the people and functions within the organization that could benefit from internal audit’s involvement, and to also identify the areas, issues, tasks, and problems in which internal audit can help. Typical areas, issues, tasks or problems include compliance, internal controls and monitoring, fraud, cybersecurity, governance, investigations, environmental, ESG, workplace, FCPA, legal and compliance issues, and any number of issues that might become known during the independent audit including the areas in which the outside independent auditor is required to communicate with the audit committee or those in charge of governance including, for example, about CAMs and the new NOCLAR requirements, and the list goes on. On March 1, 2023, new proposed internal audit professional standards will be circulated for a period of comment – I have not yet seen the proposed new standards; however, it is my understanding that the standards are being modernized and presented in a more unified, simplified manner.

Below are the clips from the Internal Audit Foundation 2022 Premier Global Research paper pertaining to how internal audit primarily functions and reports from an overview perspective – however, as we move through 2023 and thereafter I do expect that future surveys will show changes, increased utilization, and increasing opportunities.

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

California Mental Health Services Oversight & Accountability Commission, draft Workplace Mental Health Report – a bit like the “S” and some of the “G” in ESG

I have provided immediately below a link to and pdf copy of the recent California Mental Health Services Oversight & Accountability Commission draft Workplace Mental Health Report. Historically I have not spent much time discussing mental health and personality topics unless there was something to discuss that was law or mostly law related. However, you can see from recent posts on both of my blogs that for some of my discussions I have started discussing mental health and personality issues as it is not uncommon for those issues to at least indirectly relate to other issues that I do regularly discuss including law, litigation, conduct and possible liability, governance, risk management, and mediation/mediator services (and also discourse, debate, and dispute resolution). The following is a link to and pdf of the recent MHSOAC draft report: https://mhsoac.ca.gov/wp-content/uploads/WORKING-WELL_2022-12-20-18_22.pdf

The following is the short Executive Summary from the report:

The following is a very short history of the Commission from the report:

And the following is part of the longer summary of the project from the report:

Ultimately the report lists five standards which the report summarizes as follows (note, that the report does contain longer discussions about each standard):

Mental health, personalities, relationships, interactions and discourse, including how people discuss, debate, disagree and argue, are some of the key issues in litigation, dispute resolution, mediation and settlement, and are also key issues and problems in the community at large. I encourage leaders and elected representatives to lead the way by using traditional debate and risk management approaches. These are huge topics – this blog post is merely a recognition. It is obvious that this Commission has spent a lot of time and effort on its draft report. As these topics are so numerous and important, I recommend that the Commission us its current work and first focus on 1, 2, or 3 primary issues and goals; define how the Commission would define “success” at this point-in-time; and identify the specific actions and tasks that will achieve that success. In other words, a specific, targeted risk management approach. Below I have added the most recent versions of my risk management process summary slide, governance definition slide, and pre-mediation questions to consider pdf.

For example, other than raising mental health issues, etc., a primary goal is to get a business to do something or to take a specific action or actions in response. Thus, what will achieve that goal, and what specific actions do you want a business to take? Also consider why a business would not want to do so – what impediments or hesitancy would a business have? The objective is to identify the specific issue, why it is an important issue, the goal, and what actions and tasks will lead to goal “success.”

On the other hand, if the objective or goal is to set standards that a business must implement or follow (all businesses of all sizes?), then perhaps the correct process is legislative. The draft report references “voluntary standards” and “standards.” “Standards” tend to raise issues of law, duty, and breach, etc. “Guidance,” “Best Practices” and similar words also can raise issues of law, duty, and breach, etc. Instead, for example, perhaps the report could contain its specific risk management approach discussion on an issue and goal, followed by a heading such as “References” or similar, followed by possible action ideas that a business might or might not decide to take.

I recommend on these and similar topics and issues that the California government first implement the ideas in governmental entity and governmental workplace settings, to see how they work and to evaluate changes and improvements that are needed.

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Hiking picture with the blue pacific in the background 01/21/2023

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

David Tate, Esq. (inactive CPA) practice meet and greet slide

I have provided below a meet and greet slide for my practice. Pre-COVID I had a practice of doing regular meet and greets, and just reaching out, making connections and looking for mutual opportunities for growth. With the beginning of COVID I continued doing so, but less often, and also less often in part because of the tragic death of my sister Deb and how she/her remains and property have been controlled post-death by the man (Trotta) who Deb had finally decided to divorce. You can see a couple of prior posts relating to Deb’s tragedy and how I have now started integrating and using what I have learned and experienced to help other people (Deb’s case and getting her ashes and property are still ongoing) – and I will be posting more information.

The purpose of this post is to say I have also started returning to my previously more active meet and greets and connecting – and I will be expanding those efforts. More to follow.

Below is a meet and greet slide for my primary practice areas. And I am working to make my posts and materials more useful and personal for people who need help and for people and professionals who have experience and work or practice areas that are different than mine.

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Scenario – for discussion only, investigation discussion from a Form 8-K

For discussion purposes only, I have attached a redacted snapshot taken from part of a recent Form 8-K that was filed with the SEC. I have no personal information about or involvement in the situation. This post is only for discussion purposes. Unfortunately news or developments today tend to be assumed or characterized to be in the negative, and often so assumed immediately and long before the facts are investigated, evaluated and made available. It takes a while to do a full investigation and to then evaluate what is known, what is not yet known, and what might not ever be known, within the context of the law and the certainty and uncertainty that exists, etc. People are innocent and presumed to be innocent and not at fault unless and until proven otherwise by admissible evidence.

Whoever is doing an investigation must be sufficiently qualified and sufficiently independent of the situation, including consideration of possible relevant personal, family, social or other outside relationships. The qualifications and independence become more elevated if the alleged situation and subject matter at issue possibly evidence greater exposure or reach into higher levels of management and authority.

Item 8.01 states “the Board of Directors has established a committee to provide oversight of the Company’s investigation” but no additional information is provided in that regard. Obviously as this situation is alleged to involve board and CxO members, the members of the committee that has been established must be carefully vetted. And consideration must also be given to optics, and to possible other high ranking or high status or visibility people from whom information might be sought and obtained during the investigation, possibly including, depending on the situation, other high-level management and board members, general counsel, internal and outside audit, and people who are members of a compliance function that is relevant to the situation. Obviously the Company’s compliance, internal controls and risk management processes relative to the issues involved also should be reviewed and evaluated and improved if necessary. Although not a legal issue, in circumstances where it becomes appropriate, possible impact on relationships and trust going forward also should be considered and worked on if necessary.

Outside, separate attorney representation also will be engaged and retained by multiple people and entities involved. Of course, possible sources of payment, reimbursement, or indemnification for the expense of legal counsel also must be evaluated and pursued.

You may know from some of my other materials that I am also interested in audit committees and governance committees, audit and auditing, internal controls and processes, auditing function and auditor communications with management, those involved in governance, and audit committees, CAMs, NOCLAR pronouncements that are becoming effective, and similar topics and matters.

That is all that I have in this post – as I said, I do not have personal information about or involvement in this situation, and, frankly, I could not talk about it if I did.

The following is the name redacted Item 8.01 from the form 8-K:

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Senator Warren’s letter to Tesla’s board and her requests for information and possible documents raise many legal issues

I have attached a copy of Senator Warren’s December 18, 2022, letter to Tesla’s board requesting information and possible documents pertaining to Elon Musk and whether or not the board has satisfied its duties as the letter characterizes those duties. The letter also requests a response by January 3, 2023, which in my view is an unreasonable, short time to respond, including over the holidays. A lot of time was spent preparing the letter, which is 8 pages and includes 35 footnotes to authorities and support. The specific requests for information and possible documents number 1-12, but many of which are compound, and run from pages 6 through 8.

Senator Warren’s questions pertain not only to Mr. Musk, but also to the board’s governance and oversight of Mr. Musk. Obviously the response will involve not only the board but also outside legal counsel, in-house corporate general counsel, possible board committees, and others. It has been my understanding that generally Senator Warren does not like Mr. Musk or his political views on at least some issues and subjects. I do appreciate that Senator Warren added her letter to her Senate website as this type of letter and inquiry raises many legal issues relating to the legal authority and standing of the sender, the type of private, privileged and possibly trade secret information and possible documents that are requested, and how the board should best respond. I expect that this letter and type of inquiry/investigation and appropriate responses will become the subject matter of many legal articles.

Here is Senator Warren’s letter:

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Fallout from FTX (and continuing)

Many financially sophisticated people and investors lost money (some a lot of money), or have otherwise been caught up in the FTX collapse and bankruptcy. Below are some of my current comments.

Just because something unexpected or negative or bad happens doesn’t by itself mean that someone is legally at fault or liable for wrongdoing or loss, or that there was related reliance and causation. We need more information to evaluate the issues.

Lawsuits have been filed (and more to follow?) – if liability is found, will there be FTX or personal money to pay? As FTX filed for bankruptcy, FTX liability might well be determined in that proceeding.

Are there possible criminal claims? It is too early to know.

There is a need for an in-depth investigation (obviously) by qualified investigators, which appears to be in progress.

Post-collapse and bankruptcy actions, representations and statements also will be evaluated, including the interviews provided (apparently without an attorney present, and perhaps without sufficient pre-interview preparation, agreed-upon questions and assurances, and post-interview review, input and oversight or authorization procedures.

The people who are or who might be caught up in this are many (but being caught up does not by itself mean legally at fault or liable for wrongdoing or loss – and there are also other limitations as FTX is a private, not public, entity, in a generally unregulated business/industry (crypto)):

  • CEO (obviously);
  • CFO (obviously);
  • Board/directors, and and possible committees (i.e., audit, governance) (obviously);
  • Possible additional internal people who directly or indirectly acted or made representations;
  • Possible people who directly or indirectly took or obtained related money or assets;
  • Possible other entities and people who were or who became directly or indirectly involved;
  • Auditors (internal and outside independent, but I do not believe that there were internal auditors) – this will be a very complicated evaluation, for example, based on what services were retained and were performed, what standards and procedures applied and/or were or perhaps should have been performed, what “opinions” or other reports were provided, what was known, what was unknown, what perhaps should have been known, who was entitled to rely, causation, etc.;    
  • General counsel – historically, generally not, but possible general counsel exposure appears to be expanding in certain circumstances;
  • Celebrity endorsers – see my prior post;
  • Insurers;
  • Regulators;
  • Investor/investment entities and/or advisors or representatives;
  • Banks and lenders, possible guarantors;
  • Investors;
  • Possible third party entities with which FTX contracted;
  • Professional licensing entities; and
  • More: possibly/probably more.

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

* * * * * * *

Best to you,

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution:
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

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, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.