A focus on shortcomings in the boardroom and fixing a broken corporate governance model should be the next move.
In the wake of the striking and surprising losses at Lehman Brothers, we noted on Tuesday:
It is traditional to ask why the CEO, and perhaps other top managers who were responsible for these decisions, are still at their desks. Many at other companies have been booted out. CEOs at Merrill Lynch, Citigroup and UBS come to mind. Accountability at Lehman seems to have no real consequence or manifestation.
The ousting of company President and COO Joseph Gregory and CFO Erin Callan, announced today, is a good start but is hardly an acceptable conclusion to the changes needed. Now the focus should be on Lehman’s shortcomings in the boardroom and fixing a broken corporate governance model.
The boardroom needs new blood. Of the investment bank’s 10 independent directors, three are in their seventies and two are in their eighties. The executive committee, which consists of CEO and board chairman Richard S. Fuld, Jr. and 80-year-old independent director John D. Macomber, should be shelved. The finance and risk committee, chaired by 80-year-old Henry Kaufman, should get active. As first revealed by Finlay ON Governance, this committee met only twice in 2007 and in early 2008 even when risk was becoming the 800-pound gorilla in everybody’s Wall Street boardroom.
As long as the CEO is permitted to head both management and the board, allowing Mr. Fuld to effectively report to himself, it is doubtful that Lehman will make the changes it needs to ensure the discipline of accountability that is essential to the survival and success of any business today.
This was a board that took a leisurely approach to overseeing the risk decisions and standards that led to billions in losses and write-downs, was content with a governance structure that concentrated power effectively in the hands of the CEO and sees no need for change at the top. And shareholders actually paid the directors for this performance.
Underperforming assets come in more than just numbers at Lehman Brothers. They are a substantial part of its boardroom, as well. Company chairman and CEO Richard S. Fuld, Jr. and President and Chief Operating Officer Joseph M. Gregory made more than $60 million in compensation between them in 2007 according to the most recently reported figures. And despite announcing in April, at the annual meeting, that “the worst of the impact of the financial markets is behind us,” Mr. Fuld presided over a stunning and unexpected loss of $2.8 billion for the second quarter. So far, Lehman’s write-downs exceed $11 billion.
So what exactly has Lehman been doing? For one thing, it decided -rather inexplicably, given the attendant circumstances involving the Bear Stearns collapse- to buy $2 billion in residential mortgages made to less than top credit borrowers. Lehman CFO Erin Callan called the deal a “great opportunity” on March 18th. (The Wall Street Journal reported on March 17th that JPMorgan Chase had agreed to buy Bear Stearns with Fed backing.) But the move executives prided themselves on in March turned out to be rather sour by June. The company took an additional $2 billion in write-downs involving residential mortgages, mostly in the Alt-A “space,” as Ms. Callan prefers to call it. This is the same Ms. Callan who announced in March that the investment bank was raising $3 billion in fresh capital but that it was “not really needed” to deal with write-downs or losses. It was a spin produced by an aggressive new CFO in the hope of bolstering confidence. Now it looks more like a silly stunt that reveals a company that didn’t know what was happening around it.
You might ask how, during a time of market turmoil in March that required an unprecedented level of intervention by the Fed (which it testified before Congress was necessary to avoid a total meltdown of the financial system) is it possible that Lehman would have taken on more risk in the form of these Alt-A loans? Would not a strong dose of conservative, risk averse medicine have been more appropriate?
For these answers we turn to Lehman’s boardroom, where we find the troubling fingerprints of dubious corporate governance, as we have so often in the worst Wall Street crisis since the Great Depression. It is a board that was pretty much hand-picked by Mr. Fuld, who has been Lehman’s chair since 1994. Only three directors have been appointed in the 21st century.
It is also a board that appears content to leave all the top jobs to -what a surprise- Mr. Fuld, who serves as company CEO, board chair, and chairman of the powerful two-man executive committee. The other member is independent director John D. Macomber, who is 80 years old. The executive committee met 16 times in 2007, more often than the board itself or any other committee. Executive committees, which both defunct Bear Stearns and deceased Hollinger also operated, are considered relics of the past and are not well embraced by most modern corporate governance experts. Best corporate governance practices also call for separation of the positions of CEO and board chair, with an independent director filling the latter post.
You would probably think that in a company where the effective management of risk is such an important determinant of success -or the lack of it- the board’s risk and finance committee would be quite active. That expectation is all the more heightened given that 2007 was a time of increasing worry about the quality of assets and risks in the financial industry. So it is with a sense of bewilderment that we discover Lehman’s finance and risk committee, headed by 80-year-old Henry Kaufman, met on only two occasions during that year. It’s a little reminiscent of Bear Stearns’s board committee of a similar name and mandate, which also met just twice in 2007. We know how that turned out.
Directors at Lehman Brothers were paid well for their services in fees that range from a low of $325,000 to a high of $397,000. Directors also sit on the boards of other publicly traded companies and numerous public institutions on top of their duties to Lehman shareholders. Marsha Johnson Evans serves as a director of Weight Watchers International, Huntsman Corporation and Office Depot, as well as chairman of Lehman’s nominating and governance committee and a member of both the compensation committee and the finance and risk committee. Roland A. Hernandez serves as a director of MGM Mirage, The Ryland Group, Vail Resorts and Wal-Mart Stores, in addition to Lehman. He is also sits on advisory boards for Harvard University’s David Rockefeller Center for Latin American Studies and Harvard Law School, as well as the board of Yale University’s President’s Council on International Activities. He, too, is a member of Lehman’s less than overworked finance and risk committee. Mr. Fuld also has other pressing duties. As we reported before, he is a director of the Federal Reserve of New York, which played a leading role in the great Bear Stearns bailout, a move, as we noted above, that is claimed (by its architects and supporters) to have saved the world’s entire financial system from collapse.
Lehman is a company that took on added risk when everyone else was fleeing from it, raised capital which it claimed it did not need, and lost more money than it, or others, ever expected. On such occasions it is traditional to ask why the CEO, and perhaps other top managers who were responsible for these decisions, are still at their desks. Many at other companies have been booted out. CEOs at Merrill Lynch, Citigroup and UBS come to mind. Accountability at Lehman seems to have no real consequence or manifestation.
This was a board where most of the directors have been around since the firm’s initial public offering in 1994, which took a leisurely approach to overseeing the risk decisions and standards that led to its recent blunder, and was content with a governance structure that concentrated power effectively in the hands of the CEO. It apparently sees no need for a change in its own governance, or that of top management either. It took a bet that its approach would work and it lost big time in the form of billions in losses and write-downs, diluted share value (because of added capital offerings) and a plunge in the price of its stock.
So the real question is: Why are these underperforming assets, also known as Lehman’s directors, still in the boardroom?
Owners of American corporations have rarely spearheaded the kind of landmark reforms the capital markets have needed to ensure public confidence or avoid the club of government regulation. They are reprising their Laodicean roles by failing to force a say on executive compensation.
More than a decade ago, we described the growing trend of inflated CEO pay as the mad cow disease of the North American boardroom. The comment, made at a speech in Toronto, was quickly picked up by the press. The metaphor was used because the trend toward excessive compensation appeared to be galloping from company to company, rendering directors seemingly incapable of applying good judgment and common sense when it came to compensation decisions. We repeated that idea in an interview in BusinessWeek in 2002 and in submissions to committees of the U.S. Congress.
But recent events struck us with the fear that this disease has spread to the shareholder body itself. The telling symptom is the revelation this week that at Merrill Lynch, Citigroup, Morgan Stanley and JPMorgan Chase, four companies that have seen their stock plunge, on average only 37 percent of investors supported recent proxy resolutions for a non-binding say on pay. In the case of Merrill and Citigroup, record multi-billion dollar write-downs and losses have been posted. The compensation of the CEOs who headed these companies during their descent into the world of subprime folly has been a recurring theme on these pages. It, along with the wider concern over soaring executive compensation, has sparked a mounting crescendo of outrage on the part of the public that has found its way into the current U.S. presidential campaign. Even Republican presidential hopeful John McCain has chided the level of greed that is sweeping America’s boardrooms.
The larger issue that draws our attention is the perennial fecklessness of shareholders as a group. After the panic of 1907, it was not investors who demanded the creation of the Federal Reserve System, nor did they rise up and call for such now basic measures as audited financial statements, annual reports and insider trading laws after the market crash of 1929. And when the Enron-era scandals revealed systemic weaknesses in American corporate governance, it was not the mass of shareholders who stood up at annual general meetings and demanded tougher audit committees and fewer boardroom conflicts – or any other provision of Sarbanes-Oxley legislation, for that matter. They are reprising their Laodicean roles by failing to force a say on executive compensation.
For American investors, too harsh is the tether that does not even bind. It is bad enough that directors insist on treating shareholders like children while they convey the idea that a say on pay would be almost the final step in the undoing of capitalism as we know it. But for the owners of American business to act as though they can’t be trusted with such advisory powers in connection with their companies and their money boggles the mind and is a complete abrogation of the responsibilities of ownership. It is our choice for the Outrage of the Week.
Much as we have long faulted James Cayne for his role in Bear’s implosion, responsibility for its ultimate failure is born by many actors, including the long-time head of its executive committee, Alan Greenberg. It proves once again that boards must actually direct. In Bear’s case, there is scant evidence that its independent directors were even in the room, much less grasped the pivitol role the firm played in the health of the entire financial system.
So now the titans of Bear Stearns itself are weighing in on who is to blame for the blunders that led to the firm’s collapse. The New York Times reports on Wednesday that Alan C. Greenberg, chairman of Bear’s executive committee, had some harsh words about former CEO and board chairman James E. Cayne. And the issue of corporate governance has been raised for the first time by the newspaper as a contributing factor in Bear’s downfall. It might be the first for The Times, but as loyal readers will know -and they actually include a number of Bear’s own employees- Finlay ON Governance was the first to bring to public attention the role of that firm’s dysfunctional and over- extended board of directors.
The Times notes:
The demise of the firm they loved was not so much the fault of either man. Instead, it was a collective failure of the governing five-man executive committee that over the years became so fixated on increasing the firm’s book value – and expecting the stock price to follow – that it lost sight of the concentrated, underhedged exposure to the home mortgage market that left Bear vulnerable.
Actually, The Times is not quite on top of the story. There were problems with the executive committee and the fact that it did so much of the heavy lifting in the firm -to the exclusion of any independent director. But the ultimate responsibility for permitting that situation rests with the full board of directors, which Mr. Cayne chaired and on which Mr. Greenberg served for decades. As we have observed before, there is little to suggest that any of the directors in the all male, management-dominated Bear boardroom were bothered by its governance structure or the bizarre antics of its chairman.
As The Times reveals:
One member of the executive committee said that Mr. Greenberg, as a longtime director, had ample opportunity to voice concerns about Bear’s vast exposure to subprime mortgages and its hedging strategies, which he did not do.
“He never said a word,” said this person, who declined to be identified because of the legal sensitivities in the matter.
The company’s independent directors were not exactly breaking sound barriers in voicing their concerns, either. In fact, one has to wonder if they were even in the room.
The company had independent directors on paper, to be sure, but they displayed a curious sense of their roles and what passed in their eyes for acceptable corporate governance in a firm that apparently was so consequential to the capital markets that its collapse could have precipitated an upheaval of the entire global financial system, as we have been told. Many Bear directors served on multiple boards involving other publicly traded companies. They did not establish a risk committee of the board until March of 2007 and it met only twice that year. There is the issue of the over-extension of its audit committee members (which we first revealed here). And like every major player that ran into serious trouble over the subprime meltdown, from Countrywide and Merrill Lynch to Citigroup and UBS, at Bear Stearns the post of board chair was not filled by an independent director but rather a member of top management. For at least two decades, we, and other corporate governance experts, have been urging that the top board position be held by an independent director. By almost every measure, Bear’s directors failed in their most important duty: to ensure the viability and sound reputation of the enterprise entrusted to them. They took many steps along the road in failing that trust.
As much as we have long faulted Mr. Cayne for his role in Bear’s implosion, responsibility for its ultimate failure as a stand alone institution is born by many actors. Mr. Greenberg’s pointing the finger at his former colleague is a little like Conrad Black blaming his Hollinger successors for that company’s dismal plight. As history teaches with predictable repetition, what boards do, or do not do, in supervising the affairs of a company, and whether directors actually direct, makes a difference in the ultimate outcome.
As the story unfolds, we suspect there will be more indications that poor corporate governance was at the heart of this once mighty Wall Street icon’s demise. Offered in further evidence of that proposition is the fact that even though he is at the center of such criticism and cashed out all his Bear Stearns stock, Mr. Cayne remains chairman of the board of directors.
Would The Times or anyone else like to explain that?
A UBS commercial asks if the company could be “the most powerful two-person financial firm in the world.” With a total of $38 billion in subprime related write-downs, and a Q1 loss of $11 billion reported today, it seems to be headed in that direction. It also plans to cut some 5,500 jobs.
The sheer magnitude of the bad decisions that would have put so much money at risk almost defies comprehension, especially for an institution like UBS that prides itself as a money manager for the very wealthy.
We are told, as we have been in every year since the Enron scandals, that director compensation has risen across the board. It is up by 12 percent over last year. The reason, so they say, is the increased work load in the wake of Sarbanes-Oxley. There have been regular stories since the passage of the first U.S. securities laws in 1933 and 1934 that boards are working harder than ever. One scholarly commentator remarked in the 1930s that “the weight of the New Deal” appears to have fallen on the board of directors. There has never been a time when boards have admitted that they could be doing more for investors. But they always claim they are working so much harder than they did before. And they demand more money. Yet for all that extra work, the world is facing its worst credit crisis since the Great Depression and a scale of losses unimagined even in that bleak period. The financial sector has posted more than $300 billion in mortgage-related losses and write-downs since the beginning of the subprime crisis.
Firms in the financial sector, like UBS, claim to have superior listening powers and ways of understanding the market that give added value to investors and customers. With the costly underperformance of so many of these institutions, much of which we have attributed to a failure of corporate governance, a more credible demonstration that boards truly value their investors would be to start giving back some of their fees, not adding insult to injury by demanding more money for the privilege of presiding over more losses.
Care about risk was not permitted to intrude upon the holiday from reality many boards chose to take in the years leading up to their subprime cataclysm, which is why the credit crisis of 2008 can be traced to a complete failure of corporate governance.
There is a common theme emerging from the subprime debacle as it relates to the banking industry: risk was not respected. A recent internal UBS report found that the bank’s approach to risk was “insufficiently robust” and that the oversight of investment banking “lacked effectiveness.” UBS has written off over $37 billion in connection with subprime shortcomings, more than any other bank. We noted earlier that the board of Bear Stearns, whose mishandling of risk nearly brought down the whole financial system, according to U.S. government officials, did not establish a risk committee until early 2007. It met only twice in all of that year. John Thain, who succeeded Stanley O’Neal as CEO after Merrill Lynch posted the largest losses in its history, said the risk committee there did not function. A failure to treat risk with the care it deserves was also central to Société Générale, where the bank lost more than $7 billion as a result of unauthorized trades by a mid-level employee.
After Enron and other scandals, legislators in the United States concluded that boards needed to take the “surprise factor” out of financial reporting and assume greater responsibility for the prudent supervision of their companies. Section 404 of the Sarbanes-Oxley Act of 2002 sets out the expectations of cautious boards and top management in their handling of risk and the safeguarding of financial controls. It was not long ago that officials in the Bush Administration and in the business community were seeking to ease Section 404 requirements. SOX went too far, they suggested, and it was hobbling the ability of American business to compete. The irony is that at the very same time these players were claiming SOX was too onerous, they were failing to monitor risk to such an extent that it would lead to the worst credit meltdown and largest write-downs and losses in modern corporate history. Millions of ordinary Americans, as well as stakeholders elsewhere, would be dramatically impacted by the recession-causing missteps that were taken by some of the most revered names in banking.
What is becoming more apparent is that directors and top management, all very well paid, were living in a fantasy land where they acted as though the era of soaring fees and uninterrupted success would continue indefinitely. They chose to see only what they wanted and never contemplated the prospect that reality might hold a more dismal scenario. It was a time of deafening party making where the voices of reason and prudence, if they were invited to the occasion at all, were completely drowned out in the giddy bonus-popping euphoria of the modern Gilded Age’s newest members. Care about risk was not permitted to intrude upon the holiday from reality many boards chose to take on Wall Street and elsewhere in the years leading up to the subprime cataclysm. Like the Enron-type upheavals and accounting frauds that produced the most comprehensive reforms in securities law since the 1930s, the subprime debacle reveals serious shortcomings in boardroom culture and in the way directors are supposed to work.
Simply put, the credit crisis of 2008 can be traced to a complete failure of corporate governance. Others contributed speaking (or non-speaking, as the case may be) parts to the calamity, including sleeping regulators and conflicted rating agencies. But it was the boardroom that played the leading role in this unsettling drama, where the consequences when directors fail to direct were reprised in high definition, even while the scandals of the past were fresh in their minds.
It was a time of excess at every level of the corporate enterprise -except in sound thinking and common sense in the oversight of risk, in vision for looming hazards, and in CEO compensation tied to reason instead of the unsustainable illusion of growing subprime fees. Once again, the safeguards and governance tools that could have protected these companies -and, ultimately, the health of the financial system- from what is fast becoming the worst economic crisis since the Great Depression were the Rodney Dangerfield of the modern banking boardroom.
They just didn’t get any respect.
