No doubt, there will be many articles and commentary on the both the cause and the cure of the current financial crisis. These articles will explore the root cause from many angles and take the perspective of the author’s view based on their insights and participation in the solutions applied.
The purpose of this article is to take a step back and look at the current financial problems as a physician would a patient to diagnose the events as symptoms that led to the eventual financial health failures. What did the patient present as possible leading indicators to the catastrophic event?
First, the title, “Conflicts of Interests”, is a play on words. It is intended to be a little provocative and explain how the current problems can be traced back to separate and subtle symptoms of conflicts that were either not addressed or ignored by congress, regulators, board of trustees, shareholders, external auditors, investment bankers and senior management.
I will trace back to the early 1990’s and use one business case that encapsulates the historical symptoms presented by the patient, in this case Enron. During the early 1990’s the American economy was enjoying one of the longest economic booms in history. Enron was billed by Fortune magazine as “America’s Most Innovative Company” for six straight years from 1996 to 2001. In 2001 Enron became one of the largest corporate bankruptcies in U.S. history! What went wrong?
Enron’s entire financial structure became the road map or the “playbook” for many of the financial issues that have surfaced in the forefront of the financial money center banks today. While today's new products and issues are different the similarities are striking as examples of the systemic risks reverberating across markets today. Here are but a few examples:
(1) By the late 1990’s Enron effectively controlled almost 25% of all electricity and natural gas contracts traded worldwide through the use of derivatives and other forward contracts. This massive concentration of control was a huge red flag!
(2) Special Purpose Entities (SPE’s) – SPE’s are legitimate structures when set up properly and independently of the parent company to limit risk. Enron effectively maintained control and used these vehicles to hide massive debt that eventually had to be brought onto the parent company’s financial statements. Second red flag!
(3) Deregulation – Energy production in the US was a government-sanctioned monopoly until the late 1980’s. Government regulated power plant construction, the rates to be charged for power, and ultimately the earnings of energy companies. Deregulation required the market to replace the role of government in production, long-range transmission, and local distribution. Enron stepped into this void and created the intermediation activity that led to their dominance of the industry. Poor oversight was the 3rd red flag!
(4) Opaque financial disclosure was a 4th red flag! The off-balance sheet transactions represented huge risks and debt. The failure to follow generally accepted accounting principles led to the formation of the Public Company Accounting Oversight Board and ultimately the collapse of Arthur Andersen.
(5) Financial engineering - In 1993, Goldman Sachs & Co invented a security that was treated like a debt or equity security to cut Enron's federal tax bill. The Monthly Income Preferred Shares, or "MIPS", as they were called was treated as both a fixed income and equity security. Enron set up an offshore subsidiary which sold the preferred shares through Goldman Sachs. The subsidiary then lent the proceeds to the parent, Enron, to be paid back over 50 years or more. Enron deducted the interest payments from its taxable earnings with the IRS. However, to shareholders Enron described the obligation as "preferred stock in subsidiary companies". The Treasury department tried repeatedly to stop this practice to no avail by enlisting the SEC to intervene. This product became a very popular financing tool on Wall Street and gained support in Congress, according to John D. McKinnon and Greg Hitt of the Wall Street Journal.
(6) Easy credit - Enron sued and is currently settling with as many as 175 banks that financed their operations with easy credit. Enron settled with Goldman Sachs, Royal Bank of Scotland, Royal Bank of Canada, Canadian Imperial Bank of Commerce, JPMorgan Chase, Toronto-Dominion Bank, Merrill Lynch 7 Co., Fleet Bank (now owned by BankAmerica), Barclays Plc, and Deutsche Bank Ag to name a few. Much of the lending centered around commercial paper on unsecured, short-term loans issued by Enron.
If these red flags resonate with the problems in today’s market crisis they should. Even with the advent of Sarbanes-Oxley, the Public Company Accounting Oversight Board, and the Investment Company Act and Investment Advisers Act of 1940 (206-4(7) and 38a-1) the patient is still on life-support!
In retrospect, we should have seen this coming. The failure to act as checks and balances on this behavior by outside auditors, internal corporate oversight, experts in federal government, senior management, financial analyst, board of trustees, or investors serves to warn us of the tremendous pressure to remain silent when the rewards are large for all those who participate.
Like the doctor who prescribes a cure that is untenable to the patient. The "conflicts of the collective interests" were too powerful to stop the unfolding financial collapse. The medical prognosis is that the patient will live however her quality of life will be diminished unless a more measured approach is taken.
This should be a warning to the market! Enlightened self-interest operating unchecked can lead to disastrous results unless tempered by a concern for the health of the entire economy.
Sources:
1 – MSN Encarta’s compilation of news articles and public events
2 – Knowledge @ Wharton
3 – Time, In partnership with CNN
4 – Chron.com
5 - The Wall Street Journal
Tuesday, March 10, 2009
Corporate Ethics: The Road to Recovery
In a new Marist Poll commissioned by the Knights of Columbus, 76% of Americans and 58% of corporate executives graded corporate ethics a failing score of D or worse. It seems that Americans believe that personal financial gain and career advancement is more of a motivator for corporate decisions than concern for the public good or the welfare of employees, shareholders, and customers.
No less than the Chairman of the Financial Services Authority (“FSA”) in the United Kingdom, Lord Turner allegedly accused Britain’s current Prime Minister, Gordon Brown of “political pressure” to apply a light touch to regulatory oversight leading to the collapse of that country’s largest banks. As Chancellor of the Exchequer, Mr. Gordon Brown oversaw the FSA prior to becoming Prime Minister. The now famous Moore Memo, Paul Moore of HBOS, has led to the resignation of Sir James Crosby, the deputy chairman of the FSA.
Similarly, the Securities and Exchange Commission has been accused of regulatory neglect during the tenure of former Chairman Christopher Cox. Chairman Cox allegedly set up hurdles for the agency’s commissioners which hindered their ability to expeditiously bring enforcement cases.
What does this have to do with ethics? The current banking crisis may be directly linked to a systemic failure of corporate ethics. Mr. Paul Moore described the dilemma in his testimony to the UK’s Treasury Select Committee, “In simple terms this crisis was caused, not because many bright people did not see it coming, but because there has been a completely inadequate “separation” and “balance of powers” between the executive and all those accountable for overseeing their actions and “reining them in” i.e. internal control functions such as finance, risk, compliance and internal audit, non-executive Chairmen and Directors, external auditors, The FSA, shareholders and politicians.”
Restoring fundamental principles of fiduciary responsibility, the prudent man rule, may in fact be the tools that financial institutions and corporations need to repair trust in the marketplace.
Adam Smith wrote in The Wealth of Nations, “In the midst of all the exactions of government, capital has been silently and gradually accumulated by the private frugality and good conduct of individuals, by their universal, continual, and uninterrupted effort to better their own condition. It is this effort, protected by law and allowed by liberty to exert itself in the manner that is most advantageous, which has maintained the progress of England towards opulence and improvement in almost all former times...”
A return to good governance, corporate and private ethics, and appropriate regulation and internal controls may be the remedy needed for this current crisis.
No less than the Chairman of the Financial Services Authority (“FSA”) in the United Kingdom, Lord Turner allegedly accused Britain’s current Prime Minister, Gordon Brown of “political pressure” to apply a light touch to regulatory oversight leading to the collapse of that country’s largest banks. As Chancellor of the Exchequer, Mr. Gordon Brown oversaw the FSA prior to becoming Prime Minister. The now famous Moore Memo, Paul Moore of HBOS, has led to the resignation of Sir James Crosby, the deputy chairman of the FSA.
Similarly, the Securities and Exchange Commission has been accused of regulatory neglect during the tenure of former Chairman Christopher Cox. Chairman Cox allegedly set up hurdles for the agency’s commissioners which hindered their ability to expeditiously bring enforcement cases.
What does this have to do with ethics? The current banking crisis may be directly linked to a systemic failure of corporate ethics. Mr. Paul Moore described the dilemma in his testimony to the UK’s Treasury Select Committee, “In simple terms this crisis was caused, not because many bright people did not see it coming, but because there has been a completely inadequate “separation” and “balance of powers” between the executive and all those accountable for overseeing their actions and “reining them in” i.e. internal control functions such as finance, risk, compliance and internal audit, non-executive Chairmen and Directors, external auditors, The FSA, shareholders and politicians.”
Restoring fundamental principles of fiduciary responsibility, the prudent man rule, may in fact be the tools that financial institutions and corporations need to repair trust in the marketplace.
Adam Smith wrote in The Wealth of Nations, “In the midst of all the exactions of government, capital has been silently and gradually accumulated by the private frugality and good conduct of individuals, by their universal, continual, and uninterrupted effort to better their own condition. It is this effort, protected by law and allowed by liberty to exert itself in the manner that is most advantageous, which has maintained the progress of England towards opulence and improvement in almost all former times...”
A return to good governance, corporate and private ethics, and appropriate regulation and internal controls may be the remedy needed for this current crisis.
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