Weekly November 16, 2012
Major Banks at Risk for Energy Manipulation
03 Contents 04 08 13 14 18 22 24 25 26
Bigger than Libor
Major Banks at Risk for Energy Manipulation
Will The Consumer Financial Protection Bureau Grow Stronger Or Die After The Election? Social Media Influence with Fay Feeney
It Was About The Technology, Stupid
Board Evaluations Getting it Right
NACD Boardvision Tone at the Top
the Future of Financial Communications with Candi Wolff
In the News
Libor Major Banks at Risk ― for ―
Energy Manipulation Richard S. Levick, Esq. Originally Published on Forbes.com
ajor banks have another fight on
historically quicker-to-settle postures vis-à-vis
the financial regulators. While Barclays says it
This set-to is not with inveterate
antagonists like the SEC or the Department of Justice but with the Federal Energy Regulatory Commission (FERC), which oversees the oil, natural gas, and electricity industries. The tough part is figuring out how to size up and respond to this relatively unfamiliar inquisitor.
will “rigorously defend” itself, Deutsche Bank is a most interesting case in point as that bank has vowed to fight even though its exposure is only $1.5 million. Such a “not-one-penny-for tribute” position suggests that these banks are likely fearful of the interminable litigation that might arise should they settle too docilely. If it can also be established that the trading strate-
FERC has thus far gone after JPMorgan Chase,
gy was ill-advised but not illegal, the banks will
Deutsche Bank, and Barclays for alleged ma-
be spared significant future pain.
nipulation of energy prices—and the stakes are potentially as high, at least in terms of the penalty amounts sought, as any numbers splashed across the front-page stories of recent years. The action against Barclays is especially conspicuous. Here the agency is seeking $470 million, which is not just the largest fine in FERC history but $20 million more than what Barclays got hit for in June, 2012 over the Libor bid-rigging scandal.
Perhaps the banks are also a mite territorial in their perceptions, as if FERC should not be playing sheriff in their town. Such territoriality might actually be understandable as past regulatory oversight typically focused on either the physical markets or derivatives. Importantly, though, the general lesson—of which these present energy cases are just one example—is that government regulation overall is increasingly de-compartmentalized. Any sound cor-
The cases against the big banks culminate a
porate strategy must assume an almost bound-
regulatory initiative by FERC that has so far re-
lessly multifaceted regulatory landscape.
sulted in 19 actions over the last two years. The
There’s more to life than the SEC.
core issue involves a trading strategy that industry veterans say has actually been globally commonplace: an artificial depression of nextday physical energy prices in order to increase the value of separate financial contracts. They lose a few million in the physical market; they make tens of millions in derivative positions.
At the same time, the agencies are by no means homogenous. In any regulatory challenge or crisis, businesses have to make separate assessments of each public entity with which they must deal. Each has its own character, its own agenda. What motives drive the regulator? What can be gained or lost through appease-
Reportedly, the banks have been relatively
ment? What can be gained or lost by circling
feisty in their response to FERC compared to
It is a bureaucratic opportunity; it is a political opportunity.”
FERC may be a particularly difficult read for
tunity quite unequivocally, even before these
those caught in its crosshairs. Comments by
current investigations, when it levied a $245
observers like Tyson Slocum, the director of the
million penalty on Constellation Energy in
energy program at Public Citizen, suggest an
March for purported manipulation.
ambiguous prognosis. “It’s the most powerful agency that no one knows about,” he says, but he also observes that FERC continues to rely on private companies to ferret out instances of manipulation. In that sense, he suggests, the current bank cases are anomalous because of their unique magnitude and not necessarily indicative of an invigorated regulator. Yet energy industry members and investors are well-advised to err on the side of great caution. Here’s a government entity that’s taken something of a back seat in terms of public awareness, despite the 2005 expansion of its powers to investigate manipulations after the Enron scandal. Then, just this year, a special division was formed that includes members with data-analysis expertise as well as criminal investigators. Now that they’ve got some raw meat in the form of the very financial institutions that have
“Since 2005, FERC has been taking baby steps into the enforcement process. Now they’ve found their sea legs,” says Mark Ruddy of the Ruddy Law Office, PLLC, which assists alternative investment clients in their interactions with regulatory entities, including FERC. In formulating a strategic response, any bank targeted by FERC should consider the likelihood that the agency does indeed see itself at a turning point in its own history. Both a wary assessment of the longer-term consequences of appeasement, combined with some thinking about how to work more collaboratively with this nascent regulator, are therefore all the more in order. “The banks’ attitude toward FERC has always been, ‘You just don’t get it,’ observes Ruddy. “That is still their attitude.”
evidence that it had not violated market rules
ing strategically at this moment. Nor is it likely
or risk losing its license to sell power at mar-
lost on FERC that oil and other energy sectors
ket rates. In October, JP Morgan relinquished
may likewise be worth a look for similarly al-
some documents with an apology and less-
leged patterned manipulations. It’s time now
for industry companies and investors alike
But even if FERC ultimately falls far short of the full recoveries it seeks, the warning shot has sounded across the proverbial bow. “I
to assess potential liability and gather professional resources for what may well be a very tough fight ahead.
would wager that any firm that traded both
The ghost of Enron looms over these proceedings. That will only make the fight tougher. L
been so effectively vilified since 2008, it would
Yet it does seem so far that FERC is now a match
physical and financial power is at risk of a sim-
seem that all signals are go for an increasingly
for a stubborn counter-offensive, and that it has
ilar FERC action,” energy expert Craig Pirrong
decisive and far-reaching regulatory agenda.
won some early rounds against the big banks.
of the University of Houston told the media.
It is a bureaucratic opportunity; it is a political
When JPMorgan refused to turn over docu-
opportunity. FERC, in fact, seized such oppor-
ments, FERC countered that it must provide
Amen to that. It’s not just Barclays and JPMorgan and Deutsche Bank that need to be think-
Richard S. Levick, Esq., President and CEO of LEVICK, represents countries and companies in the highest-stakes global communications matters—from the Wall Street crisis and the Gulf oil spill to Guantanamo Bay and the Catholic Church.
Will The Consumer Financial Protection Bureau Grow Stronger Or Die After The Election? Kathleen Wailes & Kate Dâ€™Amico Originally Published on Seekingalpha.com
The Consumer Financial Protection Bureau: The name alone makes banks, lenders and other financial institutions around the country cringe because it has tremendous and wideranging power. It is a source of consternation for the financial services industry because they not only must meet new requirements, but also have no history with the Bureau to guide regulatory expectations.
Is The CFPB Protecting or Provoking?
Bureau also gained supervisory responsibility
card company practices and working toward a
for the credit reporting industry.
global mortgage industry settlement.
CFPB as it is more commonly known, was cre-
The Bureau’s creation was mandated by the
An Easy Ride or an Uphill Battle
ated in the wake of the financial crisis to act as
Dodd-Frank Wall Street Reform and Consumer
a regulator for any consumer-facing financial
Regardless of Republican and financial industry
Protection Act, which was signed into law by
institutions, including banks, credit unions,
opposition, the CFPB has put significant funds
President Obama in July 2010. Still in its infan-
securities firms, payday lenders, mortgage
back into the pockets of consumers and estab-
cy, the CFPB began operation and immediately
servicers, and debt collectors. Recently, the
lished many rules and regulations with the goal
sparked controversy. From the get-go, the
of preventing a repeat of the financial crisis that
CFPB, especially the consultant in charge of its
caused the Great Recession. But, with the coun-
creation, Elizabeth Warren, faced Republican
try on the brink of a historically close presiden-
opposition. President Obama exacerbated this
tial election, the CFPB may hit a wall.
The Consumer Financial Protection Bureau, or
tension when he bypassed Congress and appointed Democrat Richard Cordray as CFPB
If President Obama wins the election, the CFPB
Director during a recess—a move House Speak-
is likely to continue to grow and thrive un-
er John Boehner described as “an extraordi-
der the administration that created it. CFPB’s
nary and entirely unprecedented power grab.”
enforcement actions, which kicked off with
Cordray, a former Ohio Attorney General with
a hefty $210 million settlement charge from
reported future political aspirations, vowed an
Capital One in July, will likely increase in
scope and frequency. The Bureau will more aggressively target unfair consumer financial
On the horizon for the CFPB are companies
practices while continuing to support financial
involved in debt collection and credit report-
literacy among the public―and, in turn, con-
ing. These companies have earned scrutiny
tinue to establish and solidify its presence as a
from state regulators and consumer protection
regulator of the financial industry.
groups because of their aggressive tactics. The
CFPB also will begin monitoring those agen-
If Mitt Romney wins, however, the Bureau
cies that work with the Education Department
could face new headwinds. The Republican
on overdue student loans, of which more than
nominee has made his disapproval for the
$850 billion are outstanding. Debt collection
CFPB and the Dodd-Frank Act that created it
companies are understandably unhappy about
abundantly clear. His argument against the
this development, and claim that the rise in for-
Bureau asserts that the actions of the CFPB are
mal complaints against them is due to greater
strangling our country’s economic recovery
ease of reporting online. Recently, the Bureau
by restricting credit and lending, and that the
has also focused largely on overseeing credit
Bureau has too much power and is protected
Investors in financial services companies should take note of these developments because they will significantly affect the industry."
from Congressional oversight (it gets its fund-
Disclosure: I have no positions in any stocks mentioned, and
ing from the Federal Reserve).
no plans to initiate any positions within the next 72 hours. I
Romney proposes to revise or repeal Dodd-Frank,
I am not receiving compensation for it. I have no business
saying the legislation has “gone beyond what was
relationship with any company whose stock is mentioned in
appropriate.” Moreover, Romney’s running mate,
this article. Kathleen Wailes is a Senior Vice President & Chair, Financial
mittee when it proposed to cut the CFPB’s 2013
Communications Practice at LEVICK and a contributing
opposition, many analysts believe Romney has
with Fay Feeney
wrote this article myself, and it expresses my own opinions.
Paul Ryan, led the House Financial Services Combudget by more than half. Despite his party’s
Social Media Influence
author at Seeking Alpha. Kate D’Amico is a Corporate & Public Affairs Fellow at LEVICK.
bigger fish to fry―i.e., jobs, healthcare, reducing the deficit―and that restricting the CFPB may not be high on his to-do list.
at the crossroads of social media and corporate outreach. Consumer-to-consumer communications
Like many other issues, the two candidates -
facilitated by social networking are impacting purchasing decisions like never before. Companies
and their respective parties―don’t see eye to
must identify ways to influence conversations they simply cannot control.
eye when it comes to the CFPB. Come November 6, the CFPB may find itself with a clear path forward, sharp curtailment of its power, or the end of the line. Investors in financial services companies should take note of these developments because they will significantly affect the industry. L
In this LEVICK Daily video interview, Fay Feeney, CEO of Risk for Good, discusses the critical issues
2012 It Was About the Technology, Stupid Richard S. Levick, Esq. Originally Published on Fastcompany.com
In the wake of Mitt Romney’s loss last
sonal computers, laptops, tablets, and perhaps
week, big Republican donors are won-
even mobile phones. Consider that Sharp has
dering why they saw little to no return
“material doubts” about the future of its busi-
on the billion dollars they invested
ness; that Panasonic has reported an $8 billion
during the 2012 election cycle. The an-
loss for the first half of this fiscal year; and that
swer not only provides insight into President
media buying networks have slashed their TV
Obama’s victories in key swing states such as
advertising revenue growth forecasts. Those
Ohio, Pennsylvania, Florida, and Virginia; it’s
indicators alone should have given pause to
an omen that foreshadows the future of media
any campaign that put all of its eggs in the TV
utility in an era where familiarity, credibility,
basket. The fact that 2.7 million people viewed
and the ability to forge personal connections
President Obama’s “You Didn’t Build That”
trump traditional advertising at every turn.
comment on YouTube ought to do the same
To be clear, the professionals running the Romney campaign are far more adept than my head-
Then, there is the DVR technology that is now
line might infer. But they did make one crucial
a staple in the majority of voting households.
mistake in underestimating how technology has
What good is a TV ad blitz when even those
fundamentally changed voter outreach.
that comprise TV’s declining audience can
For instance, take Karl Rove’s super PAC American Crossroads. It spent $180 million on
simply record their favorite shows and fastforward past the deluge of political messaging?
television advertising alone. That media buy
Second is the polarization of the electorate.
represents only a drop in the bucket when we
Exit poll analysts are reporting that as many as
consider the fortune that the Romney campaign
91 percent of voters made up their minds well
and independent Republican groups spent on
in advance of the campaign’s final days. If that
TV. Twenty years ago, that spending advantage
figure holds up, it means only nine percent
would have likely had a tremendous impact on
of voters were susceptible to the influence-
electoral outcomes. Today, however, three fac-
oriented TV advertising that made up the lion’s
tors have converged that significantly diminish
share of Republican resource allocation in the
the air war’s effect. As a result, studies show
campaign’s final month.
that groups such as Rove’s saw only a one percent return on their investment.
That’s an important audience to be sure; but as the Obama campaign amply demonstrated, the
The first factor is the general decline of TV.
last days of a polarized presidential campaign
Republicans pinned their hopes to the TV at a
are more about action than influence, as the
time when it is falling to at least fourth place
need to ensure that solid supporters actually
in the small screen hierarchy—behind per-
get to the polls trumps all other considerations.
Mr. Fenn shares an anecdote that is particu-
it comes from a family member, friend, or ac-
larly telling. “For instance, Obama supporters
quaintance who is depending on you to make
could download a mobile application in the
a responsible decision. That kind of outreach
final weeks of the campaign that enabled them
infuses emotion into the equation—and it’s
to reach out to Facebook friends in swing
emotion, not logic, that ultimately gets a voter to
states to ensure they got to the polls. The
the polls—or a consumer to the point of sale.
Voters weren’t just being contacted by campaign personnel; they were being influenced by their friends. In the end, that made all the difference in getting out the vote and aptly demonstrated the declining value of traditional advertising.
campaign found that when five of a potential voter’s friends reached out, that potenAs we will see below, TV may influence, but
works are those that achieve the dual goals of
tial voter was transformed into a real voter
other media are far more effective when it
influence and action simultaneously. Insights
because he or she was contacted by someone
comes time to translate influence into action.
provided by Democratic media strategist Peter
familiar, rather than via TV or an anonymous
Fenn for a recent Election Edition of LEVICK
Third, and most important, is the ascendency of social media. In 2008, we learned about its
tising in the future, for no other reason than that campaigns feel they need to do it to run a truly credible and authoritative campaign. But as TV plays a smaller role in our lives and social media continue to redefine the ways that credibility and authority are both communi-
Simply put, Mr. Fenn’s outlook crystalizes the
cated and perceived, we will no doubt see less
importance. In 2012, we bore witness to its
“The Obama Campaign did a tremendous job
wisdom that, today, the messenger is just as
and less of it in 2014, 2016, and every election
dominance. Today’s voters are flocking to social
of leveraging social media to connect with vot-
important as the message itself. Mass com-
media in droves because they provide a more
ers in ways that were genuine, authentic, and
munications may be expansive in reach; but
personalized and controlled political messaging
exceedingly likely to establish strong personal
they are often too easily ignored because the
experience. Voters no longer have to settle for
relationships,” says Mr. Fenn, who heads up
audience has no skin in the game. There is no
static, one-way communications from sources
Fenn Communications Group, a political media
feeling that the message is intended solely for
they don’t know and don’t implicitly trust.
operation that has advised more than 300
the recipient. As such, the audience is cloaked
national, statewide, and local campaigns. “Vot-
in a form of anonymity that creates no real
ers weren’t just being contacted by campaign
consequences for inaction.
They now have the freedom to engage in two-way conversations with familiar and credible connections that share their unique points of view and outlooks on life—whatever they may be. As a result, campaigns that dominate the ground war fought primarily on social net-
Weekly illustrate the point.
We will no doubt see more political TV adver-
personnel; they were being influenced by their friends. In the end, that made all the difference in getting out the vote and aptly demonstrated the declining value of traditional advertising.”
Conversely, there is no ignoring the intensely personal, micro-targeted messages that social
If there is one lesson that the business community should take to heart from the 2012 presidential election, it’s that they might be very wise to follow suit. After all, consumers are consumers— whether they are considering questions of public policy or which products are most deserving of their hard-earned dollars. L Richard S. Levick, Esq., President and CEO of LEVICK, represents countries and companies in the highest-stakes global
media facilitate. There is no question that the
communications matters—from the Wall Street crisis and the
message is meant just for the recipient, and
Gulf oil spill to Guantanamo Bay and the Catholic Church.
n a noted move towards corpo-
boards in many countries, with nearly all listed
rate transparency, a recent study
companies in Canada, France, the U.K., and the
group of public company direc-
U.S. conducting some sort of evaluation each
tors and a few academics identi-
year. The practice is also widespread in Italy
fied seven gaps on their own board room turf:
and Spain, and is gaining attention in many
purpose, culture, leadership, information,
Asia-Pacific markets. Even if a company is not
advice, debate, and self-renewal. The report
subject to any listing requirements, sharehold-
goes on to state boards should “develop poli-
ers and stakeholders are asking questions and
cies and practices to ensure ongoing evalua-
evaluating the company as though it is subject
tion and education of current directors, using
to the same requirements. Shareholders, com-
the services of independent third-party facili-
munity, and employees are expecting and even
tators when needed.” With this focus in mind,
presuming the board is using an objective ap-
corporate counsel can provide guidance for
proach to hold themselves and the company to
boards desiring a more robust board evalua-
the “best business practices.”
tion process. Fundamentally, a board evaluation is an opportunity for boards as a collective body to increase their effectiveness based on feedback the evaluation provides. Continuous improvement and development of board and board committee processes and procedures is key to ensuring board effectiveness. In today’s world, it is vital that a board of directors can measure its strengths and its opportunities for improvement. Board evaluation sets the foundation to purposefully identify and surmount barriers that impede effectiveness. The goal is to
Board Evaluations Getting it Right
receive solid, actionable input.
Key Point: The progressive board looks for the time and resources spent on board evaluation to align with their philosophy of continuous improvement and reflective intelligence. At the very least, a board evaluation will focus on key functions of the board, provide a “gap” analysis that draws weak areas to the surface, provide disbursement of responses, and identify the “tone” of the responses. Board evaluation is most meaningful as a productive activity for the board when it focuses on board development rather than compliance. This requires knowledge not only of board functions, roles, and responsibilities, but also
In addition, it is a NYSE listing requirement
how all this information links to the current
that boards, along with their nominating/
business/industry trends and market changes.
governance, compensation, and audit com-
In addition, a dynamic board evaluation moves
mittees, perform annual evaluations. NASDAQ
the board to a higher level of performance on
highly recommends board evaluation. Annual
business issues while enhancing group dynam-
board evaluations have become the norm for
ics. Overall, a board evaluation can transform
Tracy E. Houston, M.A., President of Board Resources Services, LLC
a group of strong individuals to a collective
one of the committees, to become more familiar
body of focused board members who become
with the consultant and process. After a trust
invaluable to the CEO, senior management
level is established, the board can increase the
team, and all stakeholders. A skillful board
evaluation can cause directors to say “I’m glad we did that.” This kind of skillful evaluation is produced from:
• Clear board objectives; • Reports and feedback from a knowledgeable third-party facilitator where needed;
• Facilitated follow-up discussions with the board to identify board development actions;
• Integration of the board evaluation into strategic leadership and planning; and
• Insights that lead to greater team effectiveness.
As the board embarks on the evaluation process, it is important to decide whether to use a
those risks, include:
annual evaluation, or while the board’s agreed-
Risk: Consultant misuse of data.
upon action items from previous board evalua-
Remedy: Ask how and where data is stored, and for how long. If answers are unacceptable,
tions are still in process. The board would prob-
consider using the third-party facilitator just to analyze data and provide feedback.
ably not use a facilitator when the board chair
Risk: Loss of collegiality and negativity as a result of candidate feedback.
has only been in the position for a short period
Remedy Review the past methods of board evaluation and assess the level of feedback
of time, or when the board has just recruited,
given to the board. Consider a hybrid methodology that includes a questionnaire
or is in the process of recruiting, a number of
accompanied by a self-evaluation for each director.
Risk: Directors’ perception of performance is not in line with evidence that suggests otherwise.
To choose the right methodology and provide
Remedy Consider hiring a third-party facilitator to provide feedback and possible coaching
a balanced approach, the board and corporate rewards of a board evaluation. L
Board Evaluation: Creating Strategic Performance and Effectiveness Tracy E. Houston, M.A., is the President of Board Resources Services, LLC. She is a refined specialist in board of directors
consultant usually allows for greater objectiv-
for rethinking performance, teams, and the boardroom. She
ity and credibility, not least as a means of satis-
is the creator of the only digital series for corporate gover-
the level and the areas of engagement for any
Rewards of Engaging in a Board Evaluation
consulting and executive leadership with a heartfelt passion
has been carried out. The board can choose
sessions with the board.
counsel should understand the risks and
third party facilitator. Employing a third-party
fying shareholders that an independent review
Some examples of risks that I have seen from board evaluations, and ways to alleviate
A board may not need a consultant for every
For more information and/or studies with board evaluation
Deciding Whether to Use a Third Party Facilitator
Risks of Engaging in a Board Evaluation
nance—Board Guru™ eBooks.
Examples of rewards that I have seen from board evaluations include:
• Provides a timely platform for directors to voluntarily resign, and sharpens the discussion of the experience, expertise, diversity, independence, leadership ability and character needed by the new directors;
• Identification of new or refined actions for risk reporting to the board, including crisis and reputational management;
• Clarity and enhancement of management reporting practices that affect the board; and • Enhanced board effectiveness with identification of board dynamics and facilitation of discussion to ‘clear the air.’
board consultant. At times the third-party
In today’s world, corporations are establishing processes that have an emphasis on collective
facilitator may only help with question de-
wisdom for competitive advantage. This concept can be actualized at the board level through
velopment, or simply analyze the data, or the
the board evaluation process, even though evaluation techniques are still in their infancy.
facilitator may be assigned to run all aspects of the board evaluation. The board may want
The process can result in high-level thinking in a structured, organized manner, and lay the foundation for continuous improvement.
to start with a small project, such as evaluating
NACD BoardVision: Tone at the Top
Reputation, Stock Price, and You: Why the Market Rewards Some Companies and Punishes Others by Dr. Nir Kossovsky/Apress
In this episode of BoardVision, shot on location at the 2012 NACD Board Leadership Conference, we discuss how boards can ensure that company leadership sets the right tone at the top. Join Peter Gleason, Managing Director and CFO at the National Association of Corporate Directors, and Mary Ann Cloyd, a Leader in the PwC Center for Board Governance, for an examination of the ways that directors and executives can align their internal communications with the organizationâ€™s culture, purpose, and mission.
Click here to Order now!
the Future of Financial Communications with Candi Wolff
In this LEVICK Daily video interview, we discuss the future of financial communications with Candi Wolff, Executive Vice President for Global Government Affairs with Citi. From the trust deficit to the sea change called Dodd-Frank, financial service providers are persistently challenged to maintain positive client relationships. Those institutions that keep a keen eye on compliance will ultimately restore confidence.
Financial Communications Litigation Corporate & Reputation Public Affairs Crisis
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Chris Brogan Chrisbrogan.com
PR Week prweekus.com
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PRWeek is a vital part of the PR and communications industries in the US, providing timely news, reviews, profiles, techniques, and ground-breaking research.
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Social Media news blog covering cool new websites and social networks.
IN THE NEWS Articles The Daily Beast | November 14, 2012 Crisis-Management Experts Weigh In on How to Handle Petraeus Scandal Nonprofit Quarterly | November 14, 2012 Komen’s Continuing Saga: What Should It Do Now? FCS Interactive | November 14, 2012 Leading Experts Discuss the Future of Financial Communications - Highlights from FCS Luncheon in Washington, DC with Citi, GE Capital, LEVICK, T. Rowe Price Mashable | November 14, 2012 Macy’s Twitter and Facebook Pages Overrun With Anti-Trump Comments Buisness 2 Community | November 11, 2012 Interview with Crisis Communications Expert Richard Levick – Part 2
THE URGENCY OF NOW.
Published on Feb 26, 2013
Bigger than Libor Major Banks at Risk for Energy Manipulation Will The Consumer Financial Protection Bureau Grow Stronger Or Die After The E...