Betsy (Colleen) Popken

Special Counsel

San Francisco

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Betsy draws upon a decade of legal and policy experience to address sensitive business and legal issues for her clients. Whether guiding high-profile tech companies through cutting-edge human rights challenges, advising on front-page international peace negotiations, or safeguarding executives from white collar matters, Betsy resolves conflict while preserving her client’s reputation.

As a leader of Orrick’s Business and Human Rights practice, Betsy helps companies uncover, address, and remediate human rights issues. This area of law is particularly critical for high-profile tech companies, which can be more susceptible to the reputational, business, and legal risks associated with violations concerning the freedom of expression, right to privacy, gender equality, and other human rights issues. Betsy’s work has ranged from helping a tech start-up build its business consistent with human rights norms to helping a tech giant realign its policies to meet international human rights law standards.

Betsy first honed her ability to balance high-stakes and complex legal and ethical challenges while advising parties involved in international peace negotiations. She provides legal assistance to the Syrian opposition in United Nations-mediated peace negotiations through the Public International Law & Policy Group (PILPG). Betsy also serves as an expert advisor to The Shaikh Group's track II Northeast Syria dialogue, and works on its efforts to develop technology solutions to structural conflict resolution barriers. She previously worked with PILPG on the UN-mediated Darfur peace negotiations, provided legal and policy assistance to the Libyan National Transitional Council, and founded PILPG’s Istanbul office when she was based there during the Geneva III peace negotiations.

In her white collar practice, Betsy applies the same delicate approach to help companies and individuals avoid or calm a public outcry. When faced with allegations of corruption or other criminal issues, clients rely on Betsy to thoroughly investigate, and offer a precise plan forward.

Betsy maintains close ties to the human rights and foreign policy communities by serving as a term member of the Council on Foreign Relations and an Ambassador Council member of the International Crisis Group.

Betsy is a Lecturer in Law at Stanford Law School where she teaches negotiations. She previously guest lectured at UC Berkeley's Human Rights Center, University of San Francisco School of Law, and American University Washington College of Law.

Posts by: Betsy Popken

FINRA Enforcement Head Explains Why Enforcement “Isn’t Rocket Science”

In a speech at the SIFMA AML Conference last week, FINRA Head of Enforcement Susan Schroeder openly explained the “straightforward framework” that Enforcement uses when making decisions about enforcement actions. The context for Schroeder’s speech was FINRA’s merger of two separate enforcement departments, resulting from FINRA head Robert Cook’s “listening tour” and FINRA’s recent self-evaluation, but Schroeder’s explanation appeared to be more of a response to broader industry complaints about FINRA Enforcement’s lack of consistency and transparency in its charging and sanctions decisions.

If that was Schroeder’s mission, she was successful. She identified the goals of enforcement actions, and justified FINRA’s use of its enforcement tool based upon harms to investors and perceived market risks. Overarching Schroeder’s speech was the principle that firms should know “what to expect from their regulator” so they know “how to shape their behavior in order to comply with the rules.” In this spirit of transparency, Schroeder identified the various principles or factors that FINRA Enforcement considers when evaluating enforcement actions and sanctions. Those principles should provide a vocabulary for firms and their counsel to assess and question FINRA’s enforcement activities.

Here are the principles in Schroeder’s own words:

Is this enforcement action appropriate? According to Schroeder, enforcement actions should be brought to “fix something that is broken or to prevent future misconduct, either by the same respondent or by another individual or firm.” Enforcement is not the only means FINRA has to fix something, and it is not always the “right tool” to use. To determine whether enforcement action is the appropriate regulatory response, FINRA will ask: READ MORE

No Direct Cause, No Restitution

A recent federal appellate decision shows there are limits to the ability of a regulator to claim monetary sanctions for statutory violations. Last week the 11th Circuit held that investors whose losses were solely associated with registration violations by their fraudster traders were not entitled to a restitution award – because such losses had not been proximately caused by the registration violations.

In an enforcement action brought by the Commodity Futures Trading Commission, the 11th Circuit affirmed a Florida district court’s findings that two companies and their CEO committed fraud by falsely representing to some investors that they had purchased physical metals on their behalf (when they had actually purchased futures), and violated the registration requirements of the Commodities Exchange Act (CEA) by trading in futures without registering as futures commission merchants. The district court had awarded restitution for losses arising from both of these violations. While the 11th Circuit upheld the restitution award of approximately $1.5 million based on the fraudulent misrepresentation, it vacated the award of approximately $560,000 based on the failure to register, holding that this violation did not proximately cause the investors’ losses. READ MORE