Future of Fiduciary Responsibility

Thursday, June 09 to Friday, June 10, 2011

Millennium UN Plaza, New York, NY

DAY ONE Thursday, June 9, 2011

7:30 Registration and Continental Breakfast

8:15 Co-Chairs’ Opening RemarksFrederic S. FoxKaplan Fox & Kilsheimer LLP(New York, NY)Inga Van EysdenChief, Pensions DivisionNew York City Law Department

8:25 Hot Topics in Corporate Governance: Tackling Board Composition, Proxy Fights, Executive Compensation, Valuing Acquisitions/Buyouts and More…

Michael Garland
Executive Director for Corporate Governance
NYC Office of the Comptroller (New York, NY)

Ron Lind
President
UFCW Local 5 (San Jose, CA)

Damien Park
Managing Partner
Hedge Funds Solutions, LLC (Philadelphia, PA)

Timothy Brog
Chief Executive Officer
Peerless Systems Corp. (Stamford, CT)

Janice Hester-Amey
Portfolio Manager
California State Teachers’ Retirement System (West Sacramento, CA)

Stephen Brown
Director & Associate General Counsel
Corporate Governance, TIAA-CREF (New York, NY)

Keith Gottfried
Blank Rome LLP (Washington, D.C.)

Moderator:
Marc Weingarten
Schulte, Roth & Zabel (New York, NY)

Governance reforms are reshaping the rights of shareholders to make significant changes to the internal structure of corporations. With measures addressing everything from say-on-pay, to how boards are structured, to how companies assess and manage risk, the voice of shareholders today can be louder than ever. This session will take a look at the issues shareholders are really pressing along with the best strategic methods to implement change.

• The new role shareholders can play in structuring a board and achieving its independence
• Creating an autonomous risk assessment committee and realistic methods to assess and manage risk
• Governance issues related to acquisitions and buyouts: valuing shares and preventing top executives from lining their pockets
• The proxy process as a remedy: which board reform • measures are being sought most? Are proxy battles being fought successfully?
• Executive compensation:
  • The new rules on director compensation
  • Internal challenges to reform
  • Curbing excess compensation through new say-on-pay initiatives
  • Achieving “pay-for-performance”
• What are the other hot topics investors are focusing on today?

9:45 Morning Coffee Break

10:00 Litigation Roundtable: Examining When a Fund Should File Suit, Navigating the Lead Plaintiff Process, Simplifying Litigation Challenges and More…

Jeffrey Lewis
Lewis, Feinberg, Lee, Renaker & Jackson, P.C. (Oakland, CA)

James P. Condon
Secretary to the Board of Trustees & Deputy Chief Legal Officer,
Central States Funds (Chicago, IL)

Carol Nolan Drake
Chief External Affairs Officer
Ohio PERS (Columbus, OH)

Inga Van Eysden
Chief, Pensions Division
New York City Law Department (New York, NY)

David A. Thorpe
Dietrich Sieben Thorpe LLP (Carlsbad, CA)

Maya S. Saxena
Saxena White P.A.(Boca Raton, FL)

Moderator:
Lawrence P. Kolker
Wolf Haldenstein Adler Freeman & Herz LLP (New York, NY)

In this session top securities litigators and class action attorneys across the country will share their litigation experiences. This is a must-attend session for any fund that is or will be involved in litigation or is just looking to understand the process a little better. Moderated by a top-notch trial attorney, hear your peers explain what the litigation process is like from the inside and demystify the process for you. Come armed with your most pressing questions to make the most of this interactive session!

• Taking on the lead plaintiff role in securities class actions
  • What are the fund’s duties as lead plaintiff and class representative?
  • Is the role of the fund different based on whether the action is alleging violations of the PSLRA or state law breaches of fiduciary duty?
• Determining whether trustees of pension funds have fiduciary duties to their participants to institute/participate in securities litigation
• Examples of activism from the financial crises – successes, failures and where the jury is still out
• Choosing your case – considerations in instituting class actions or asserting individual claims, including whether to “opt out” of a class
• Understanding how trading patterns, timing of losses and other circumstances could affect class certification and your ability to be lead plaintiff
• Maintaining good relations with portfolio companies through litigation (is it possible?)

11:15 Mortgage-Backed Securities Litigation Past, Present & Future: Investigating Yesterday’s Market Collapse, Today’s Litigation Landscape and Tomorrow’s Potential Liabilities

Jay W. Eisenhofer
Grant & Eisenhofer P.A. (New York, NY)

Richard A. Acocelli
Weiss & Lurie (New York, NY)

Steven E. Fineman
Lieff Cabraser Heimann & Bernstein, LLP (New York, NY)

Darren T. Kaplan
Chitwood Harley Harnes LLP (New York, NY)

In the wake of overwhelming losses by investors, securities cases are being filed against investment banks, ratings agencies, mortgage originators and other participants in the process who assured investors that they had limited exposure to subprime mortgages. As the crises unfolds, culpability has become clear and many financial institutions have collapsed. In this session, experts will take a look at what caused the crises, where the litigation is headed and what is being done by investors and regulators to prevent similar collapses in the future.

• A look at how and why the mortgage security collapse took place
• The role of the ratings agencies in the subprime crises and whether they will be held accountable
• An examination of the litigation landscape thus far
• Are there alternative strategies (outside litigation) for recouping losses?
• Determining who will be responsible for losses and whether there will be more cases to come
• What could be the next subprime crises?
• How can institutional investors and regulators work independently and together to prevent a future crisis?

12:45 Networking Luncheon for Attendees and Speakers

2:00 Fiduciary Responsibilities: The New Role of Institutional Investors as Private Regulators and Agents of Change

Scott Zdrazil
First Vice President, Director of Corporate Governance
Amalgamated Bank (New York, NY)

Stephen M. Davis
Executive Director,
Millstein Center for Corporate Governance & Performance
Yale School of Management (New Haven, CT) Mark Lebovitch

Anne Sheehan
Director of Corporate Governance
California State Teachers’ Retirement System (West Sacramento, CA)

Badge Humphries
Motley Rice, LLC (Mount Pleasant, SC)

Mark Lebovitch
Bernstein Litowitz Berger & Grossmann LLP (New York, NY)

Patrick W. Daniels
Robbins Geller Rudman & Dowd LLP (San Diego, CA)

Moderator:
Frederic S. Fox
Kaplan Fox & Kilsheimer LLP (New York, NY)

Current events have illustrated some of the difficulties involved in being a major shareholder, and attempting to be an effective fiduciary in a financial environment that still remains uncertain. In light of these events, shareholders are being given an increased responsibility to monitor corporate activity to ensure executives are increasing value and avoiding excess risk. However, this new responsibility could also impede the right to recover for investors when a corporation does “misstep” if the courts determine the shareholders knew or should have known of misdeeds through better monitoring. Could increased expectations of shareholder due diligence impede on rights of recovery? This panel will take an in-depth look at how new regulations, court cases, and the emerging political and economic markets will impact shareholder rights, responsibilities and the ability to recover losses.

• Understanding the new corporate governance rules, regulations and limitations
• When fiduciary responsibility calls for litigation in loss recovery
• Best strategies for keeping companies honest and deterring misconduct
• Dissecting the new accountability of major shareholders
• Best steps for investors when trouble seems to be on the horizon
• What are the major fiduciary litigation trends in Europe and other major institutional investment jurisdictions?
• Investor/corporate engagement: pension plans working together to push companies on governance issues
• Could increased monitoring (or the expectation of increased monitoring) limit shareholder rights in court if a suit must be filed?
• Implementing due diligence procedures and monitoring your portfolio

3:15 Afternoon Refreshment Break

3:30 Morrison and Beyond: Assessing the Current and Future State of Investor Rights in the US and Abroad

Luke Bierman
Former General Counsel
Office of the New York State Comptroller (Albany, NY)

Robert S. Schachter
Zwerling, Schachter & Zwerling, LLP (New York, NY)

Carol V. Gilden
Cohen Milstein Sellers & Toll, PLLC (Chicago, IL)

Darren J. Check
Barroway Topaz Kessler Meltzer & Check, LLP (Radnor, PA)

Robert A. Wallner
Milberg LLP (New York, NY)

The U.S. Supreme Court’s decision in Morrison v. National Australia Bank set aside years of well-settled precedent and restricted the rights of investors and shareholders seeking to bring suit in the U.S. for financial losses. The effects of Morrison are already being felt in pending securities litigation cases. This panel will discuss the current state of the rights of investors to seek redress in U.S. courts in light of Morrison and other recent federal court rulings.

• Expert overview of the recent rulings by the federal courts and their far-reaching impact on domestic and international investors
• Reconsidering portfolio construction in light of recent rulings
• The fall of the “conducts” and “effects” tests and what the new “transactional test” will bring
• Are U.S. courts now closed to U.S. investors purchasing securities on overseas exchanges?
• Where could state laws aid in reestablishing shareholder rights?
• Alternative litigation forums: where can investors turn if U.S. courts are foreclosed?

4:45 Conference Adjourns

DAY TWO Friday, June 10, 2011

7:30 Continental Breakfast

8:00 The Impact of Stepped-Up Government Regulation on Fiduciary Responsibilities

Gale McKenzie
Assistant United States Attorney, United States Attorney’s Office,
Northern District of Georgia (Atlanta, GA)

Norman Champ
Deputy Director,
Office of Compliance, Inspections & Examinations
Securities Exchange Commission (Washington, D.C.)

Joseph P. Borg
Director
Alabama State Securities Commission (Montgomery, AL)

Moderator:
Barbara Hart
Lowey, Dannenberg, Cohen & Hart, P.C. (White Plains, NY)

With public pension funds and institutions all over the world suffering record-breaking losses, there is more pressure than ever to make sure pensions are adequately funded and protected. A distinguished panel of government officials and regulators will share their insights on the state of the public pension system, what is being done by the government to recoup losses, and the role they see private shareholders playing in the future of corporate monitoring.

• A look at Dodd-Frank and what it means for fund fiduciaries and investment professionals
• What tools does Dodd-Frank provide to private litigants to supplement governmental oversight and enforcement?
• How will the new regulations on fiduciary status and Dodd-Frank prevent a recurrence of the financial meltdown the U.S. just experienced?
• July 21, 2011: How the switch from SEC to state jurisdiction will affect IAs
• How are the ratings agencies being reigned in and monitored?
• What is the newly emerging role of funds as corporate monitors?
• What are the biggest corporate governance issues that need to be reigned in?
• Analysis of the DOL’s new rules on:
  • Who is a fiduciary?
  • What functions constitute fiduciary activity?
  • What standards must a fiduciary meet to avoid liability?
• What must fiduciaries do to establish procedural prudence in selection of fund service providers and investment managers?

9:10 View From The Bench: Spotlight on Recent Securities Litigation from Federal Judges and Magistrates

Honorable William S. Duffey
U.S. District Court
Northern District of Georgia

Honorable F.A. Gossett, III
U.S. District Court
District of Nebraska

Honorable Rosyln O. Silver
U.S. District Court
District of Arizona

Moderator:
Joseph P. Borg
Director
Alabama State Securities Commission (Montgomery, AL)

In this session, federal judges and magistrates will speak out on the current trends in securities litigation, including the mortgage-backed securities cases that continue to be filed. Judges will demystify the litigation process, discuss the problem areas in class action suits and give their insights on what the future holds.The latest developments in class action battles

• Where the mortgage-backed securities cases are headed
• Expert witnesses, choice of forum, evolving evidentiary standards, and settlement procedures
• Class certification trouble spots dissected
• The pros and cons of settlement
• Attorney fee issues

10:20 Morning Coffee Break

10:30 The State of the Public Pension System

Joshua Mond
General Counsel
Dallas Police & Fire Pension System (Dallas, TX)

Carlos Resendez
Trustee
University Hospital Pension Fund (San Antonio, TX)

Harry Griffin
Treasurer
Center for Health Care Services (San Antonio, Texas)

Jonathan W. Cuneo
Cuneo Gilbert & LaDuca, LLP (Washington, D.C.)

Public pension funds face unprecedented deficits in the U.S. and abroad. With retirement benefits already promised to teachers, firefighters, police officers and other public sector employees, public entities must find a way to close the current gap and make structural changes. The session will take a look at the unique problems faced by public pension funds, and discuss strategies for closing liability gaps and implementing change.

• A look at the liability gap in the public pension systems in the U.S. and abroad
• Understanding and adapting to the trends in funding levels by governments for public pension plans
• Best responses for underfunded pension plans
• The politics of it all: what are the special political problems public pensions face when it comes to funding and what are the best strategies for addressing them?
• Addressing the longer term structural problems with defined benefit plans for public employees benefits
• Examining the advantages and disadvantages of DB v. DC or hybrid plans

11:30 Pre-Litigation Conflict-Resolution Strategies: Protecting Against Fraud and Developing Models Directed at Maximizing Gains While Reducing Legal Costs and Potential Litigation Time

Jeremy A. Lieberman
Pomerantz Haudek Grossman & Gross LLP (New York, NY)

Patricia Miles
Senior Staff Counsel
California Public Employees’ Retirement System (Sacramento, CA)

David Guin
Donaldson & Guin LLC (Birmingham, AL)

Stanley D. Bernstein
Bernstein Liebhard LLP(New York, NY)

We all know that litigation takes time and money and quite frankly, in the end it may not net the best results for investors. There’s got to be a better way…which is what this session will discuss. Quite often, there are ways to effect change within a corporation or recover lost assets without becoming entangled in the litigation process. In this session, attorneys will discuss alternative strategies investors can use to recoup financial losses and facilitate corporate change, without ever having to see the inside of a courtroom.

• What strategies are funds and attorneys employing to resolve conflicts before litigation? Are they effective?
• The strategic advantages to working in conjunction with government regulators & investigations
• An overview of the strategies and advantages of portfolio monitoringIntelligence that can be revealed through portfolio monitoring
• What to do when it appears that a loss is the result of securities fraud
• Can pre-suit demands be effective?
• Do portfolio companies respond to demands for change (outside of court/government ordered changes) in a meaningful way?
• Asset recovery v. Derivative litigation
  • Are litigation alternatives more effective in either realm?
  • Should strategies be different depending on the relief sought?
• Best practices in seeking relief while still preserving investor rights before suit
• Avoiding litigation and maximizing recovery through workout scenarios

12:30 Tackling the Changing International Landscape of Fiduciary Duties: A Look at Politics and Regulations in the U.S. and Abroad

Vonda Brunsting
Eastern Region Director
SEIU Capital Stewardship Program (Washington, DC)

Tim Macready
Chief Investment Officer
Christian Super (Sydney, Australia)

Lawrence A. Sucharow
Labaton Sucharow LLP (New York, NY)

Moderator:
Hugh Wheelan
Managing Editor
Responsible-Investor.com

Pension funds face unprecedented times, both in the U.S. and abroad. Corporate scandal and increased social awareness has changed the notion of what pension fund trustees should be managing. Though the ultimate eye towards increasing financial returns is ever present, funds world-wide are increasing efforts towards socially responsible investing, managing portfolio risk and recovering portfolio losses. The session will take a look at the unique problems faced by pension funds, financially, politically and culturally and look at where the international discussion is headed on regulation and fiduciary duty.

• A look at fiduciary duty differences in other countries: Europe, Asia, Australasia
• The influence of the United Nations Principles for Responsible Investment and other international lobby groups in the fiduciary/ESG space.
• Could we see fiduciary legal challenges in the future on so-called ‘extra-financial’ issues
• A comparison of worldwide pension liabilities has the storm been weathered better in some regions than others?
• New challenges to fiduciary duty: environmental, social and governance concerns
• Litigation options outside the U.S.: Are some countries more favorable forums than others?

1:00 Conference Concludes

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Location:
Millennium UN Plaza
New York, NY