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6 more ‘C’mon, man!’ moments

Richard M. Steinberg | August 2, 2016

With the kickoff of the pro football season upon us, fans soon will be watching low-lights of players bumbling their way to football notoriety. We can count on ESPN TV commentators Mike Ditka and Chris Carter to once again shout “C’mon, man!” when the players mess up.

Compliance Week readers have come to expect this now annual installment of stumbles in the business world that leave us scratching our heads. So, here’s another installment of “C’mon, man!” the business world version.

A report saying, “Watch out for overboarding.” A report from Credit Suisse Group points out that S&P 500 companies whose directors have only one board seat outperformed those with more than one—with earnings growth at 14 percent over the last five years compared with 11.2 percent. The report says directors sitting on multiple boards “often struggle to divide their time between commitments and the need to develop new skills in response to new business challenges” and can run into conflicts of interest.

Okay, we know that directors with many board seats can become over-committed. Institutional Shareholder Services and Glass Lewis, as well as BlackRock, indicate five directorships are enough. But wait—more than one seat being an issue? It’s amazing how studies often come up with what seem to be interesting correlations that have absolutely no cause-and-effect basis.

Commenting on the Credit Suisse report, the Conference Board’s Governance Center’s executive director has the sense to point out that drawing links between director commitments and a company’s financial or operational performance is “tenuous at best,” and the stated figures “could be very misleading.” He states what is well known, that companies benefit from the stewardship of experienced board members—“You want directors that are on other boards; you don’t want someone whose perspective is too narrow.”

Compliance Week readers have come to expect this now annual installment of stumbles in the business world that leave us scratching our heads. So, here’s another installment of “C’mon, man!” the business world version.

To that I say, “Amen!” And to researchers who tout the importance of correlated numbers, I say, “make sure you focus carefully on related cause and effect. Where you don’t, as in this instance, you can expect to hear a loud ‘C’mon man!’ ”

Managements claiming “We didn’t know.” You’ll remember Jérôme Kerviel, the Société Générale trader who cost the bank over $7 billion. At the time, the bank’s senior management said: The bank was “the victim of a serious internal fraud committed by an imprudent employee,” “research has not shown any link with anyone else at Société Générale,” and “we don’t understand why he took such a massive position.” Management went to great lengths to try to convince all who would listen that the bank had nothing to do with this debacle—it was all about one individual. They came out with further such statements as Kerviel was mentally weak and a terrorist and that research has not shown any link with anyone else at Société Générale.

Now a French labor tribunal ruled that Kerviel never should have been fired in the first place, and the bank owes him roughly €450,000 (U.S. $502,943), most of which represents back pay! The ruling is said to accept, at least in part, Kerviel’s argument that his managers turned a blind eye to his activities and tacitly encouraged them, as long as the trades were profitable. For deeper analysis, you may want to refer to my past columns on this debacle, outlining what really went wrong.

Now, few feel sorry for Kerviel, appropriately so. But when the bank claims that nothing in its risk management process, internal controls, or management abilities had anything to do with the fiasco—that management didn’t and couldn’t have known what was going on—we can only say, “C’mon man!”

Manipulating stock price in a buyout. When Dole Chairman/CEO David Murdock decided to take the company private, he seemed to follow proper protocol. For example, according to reports, he set up an independent board committee to consider his proposal for acquiring the 60 percent of Dole he didn’t already own. But last year, Delaware Vice Chancellor J. Travis Laster decided that Murdock, along with a “right hand man,” took steps to fraudulently drive down the stock price so he could get a better deal. Before Murdock made his bid for the company, the company’s ex-President and Chief Counsel Michael Carter is said to have misstated amounts Dole could gain from selling some of the businesses and cancelled a stock buyback program to drive down the stock price—and gave the board committee a set of “artificially low projections” while providing potential lenders more accurate numbers. Murdock and Carter were found to have deprived the committee and shareholders of negotiating and considering the transaction on a fully informed basis. Vice Chancellor Laster concluded that Carter “engaged in fraud” and Murdock violated legal duties to shareholders by “orchestrating an unfair [and] self-interested transaction” and, while the independent board committee acted with integrity, it couldn’t overcome the deceitful efforts.

It’s certainly not unusual for executives seeking to acquire a company to pursue a favorable purchase price, but they need to go about doing so on the up and up. In another case, Michael Dell’s consortium recently was held to have paid too little in the buyout of Dell. This wasn’t due to any underhanded activities by Michael Dell or the board, but rather the intricacies of determining fair value, hinging on a determination by Vice Chancellor Laster (yes, the same judge as in the Dole case) that while the Dell board did a lot right, it failed to reach out to all parties. Of particular note here is that one of the shareholders suing Dell for a too-low sales price, namely T. Rowe Price, was deemed ineligible to share in the resulting award. What? Why is this? Well, it’s said to be due to a “series of technical mistakes,” where although T. Rowe Price was clearly against the transaction, it actually voted in favor of it! This “technical mistake” cost this institutional investor an amount in the neighborhood of $200 million!

So, when we look at this, we certainly are entitled to give T. Rowe Price a robust “C’mon man!” As for Murdock and Carter, their activities seem too nefarious, so let’s say, how shameful!

There may be good reason for firing an executive. Or not. Jeffery Howard was an up-and-coming executive at Royal Bank of Scotland, rising from head of prime services for the Americas, to its global co-head, and then the group’s sole leader. But soon afterward he was abruptly fired. According to reports, Howard says he was canned because the bank wanted to distract employees from learning of significant turmoil within the bank; he then filed a breach of contract and defamation claim with the Financial Industry Regulatory Authority. Well, the bank’s actions have been called a “badly botched” firing, with a FINRA Arbitration Panel ordering RBS to pay the ex-executive over $2 million in compensatory damages—as well as to “retract his termination and expunge his regulatory record of defamatory comments.” There may be more here than meets the eye, but based on the FINRA Panel’s decisions, it seems safe to say that RBS is due a hearty “C’mon man!”

Outlandish expense reporting. Then we have reported circumstances that would be funny if only they weren’t also so disappointing. A recent report based on a survey of finance chiefs of items appearing on employee expense reports depicts some amazing entries. Among the expenses submitted for reimbursement are: dance classes, toilet paper, flat screen TVs, and half a cow! But we can’t stop there. Also submitted were the cost of a new car, rental homes, vacations, and loans. Enough already? Well, there’s more—we can add such items as a speeding ticket, pair of socks, and a fine for crashing into a toll booth!

Well, depending on the circumstances, maybe the pair of socks could conceivably make sense. But I feel comfortable giving all of these employees a resounding “C’mon man!”

No, accounting is not auditing. I conclude this column with reference to a recently published newspaper column, where a journalist refers to a rule change issued by the Financial Accounting Standards Board. No problem with that. But what is rather amazing is that she seems to think FASB sets auditing standards! The column makes the point not once, but three times, first referring to a “new auditing rule,” then to “the Financial Accounting Standards Board, which sets auditing standards for United States corporations,” and finally saying the rule is “intended to reduce the costs and complexities of auditing standards.” Auditing standards were never set by the FASB. They were set by the American Institute of CPA’s Auditing Standards Board, and more recently by the Public Company Accounting Oversight Board. There’s a very basic difference between accounting (and the associated financial reporting) on the one hand, and auditing on the other. But wait—did I just refer to the Board that sets auditing standards having the word “Accounting” in its name? Well, it seems the writers of the Sarbanes-Oxley Act that established the PCAOB might not have used the best terminology either! So, to the columnist I say, “C’mon man,” or rather “C’mon lady!” And to our legislators who wrote and passed what’s known as SOX, here’s a belated “C’mon men and ladies!”