Governance Center Blog

Mar
31
2010

Beware: SEC Fishing for Repo’s in Company 10-Ks

Whether or not you’ve heard about the tricky accounting technique Lehman Brothers allegedly used to mask huge losses before filing for bankruptcy protection in 2008, you may want to read this.

It is a so-called “Dear CFO” letter from the SEC’s Division of Corporation Finance. It could be the first step the SEC may take in a deep dive into your financial statements to look at how your CFO accounted for repurchase agreements, securities lending transactions and other transactions involving the transfer of financial assets.

The letter, which went out in March to certain companies, is in response to an examiner’s report on the bankrupt Lehman Brothers. That bank allegedly used an accounting treatment called Repo 105 that has proved to be somewhat controversial. In an interview with CNBC this week reported on in CFO magazine, SEC Chair Mary Schapiro spells out the SEC’s strategy behind the letter. Read the rest of this entry »

Mar
26
2010

Directors May Have to Deal With Reform this Year After All

Now that all the excitement about health care reform in has begun to dissipate in Washington, D.C., the focus is back on financial regulatory reform. Or so it seems.

According to the latest comments [Read The Hill blog’s coverage.] coming out of Senate Banking Committee Republican Ranking Member Richard Shelby’s (R-Alabama) camp on Friday, there’s a chance for a bill to clear the full Senate before Memorial Day. This follows the news that two fellow Republicans on that same committee – Bob Corker of Kentucky and Judd Gregg of New Hampshire – announced Monday that the Democratic bill could receive strong bipartisan support in the Senate.

And then there were Treasury Secretary Timothy Geithner’s comments [Read here.] on Monday to the American Enterprise Institute on Financial Reform. They are as eye-opening and harsh as his predecessor, Henry Paulson, in the fall of 2008 when he revealed just how deep the financial crisis was. Read the rest of this entry »

Mar
25
2010

Tricker-led Corporate Secretaries Group Issues 20 Ways to Fix Governance

What’s incredible about the formation of the Corporate Secretaries International Association (CSIA) isn’t so much that it brings together some of the greatest corporate governance minds from 11 nations, it’s the thought leadership they produce.

In light of the belief that corporate governance failures helped lead to the financial crisis, the organization, which is supported by chartered or corporate secretaries worldwide including the Society of Corporate Secretaries and Governance Professionals in the United States, plans to use their research to educate directors and companies.

“Corporate governance is undergoing much questioning given the serious governance failings that contributed to and sustained the financial crisis,” Phillip Baldwin, CSIA president-designate, said Monday. “In response, we are creating a global professional organization – one building on the strengths of national associations that represent corporate secretaries, who are on the front line in helping companies implement best practice corporate governance.” Read the rest of this entry »

Mar
23
2010

Ethics a Priority for Boards in Post-Crisis Era

It looks like more boards and management are taking seriously the effect ethics has on corporate governance and the bottom line. I base this observation on recent conversations with principals of a nascent firm that measures governance and systemic risk in the financial sector and the head of the organization devoted to corporate compliance and ethics.

And then there’s the statistics.

During the economic downturn, the membership of the Society of Corporate Compliance and Ethics (SCCE) rose about 20 percent in 2009. A December 2009 SCCE survey of  412 health care and non-health care compliance and ethical professionals (The Economy, Compliance, and Ethics) found that their compliance and ethics budgets increased 26 percent last year compared to an expected increase of only 15 percent. Additionally, the same survey found that 90 percent believed the current economy either somewhat or greatly increased the risk of compliance and ethics failures.

“I think we have been pushing ethics for something like 50 years,” Roy Snell, SCCE CEO, said. “The tide has been turning now as more companies are realizing compliance programs are needed in addition to ethics programs.” Read the rest of this entry »

Mar
19
2010

Coalition Targets Boards for Sustainability Risk Message

After years of trying to get boards to pay attention to sustainability, Ceres (Coalition for Environmentally Responsible Economics) finally has an in: risk management. And just how does it plan to sell the notion that sustainability issues are a major risk? Through its investor and corporate networks.

That’s one of the main messages in Ceres latest report, The 21st Century Corporation: The Ceres Roadmap for Sustainability, which was made public on March 11. The report is meant to be an integrated approach for embedding environmental and social issues into all businesses across such areas as governance, stakeholder engagement, disclosure and performance.

“This is about understanding risk – including the risk of not seeing the opportunities your competitors see,” Mindy Lubber, Ceres president, said when announcing the report findings. “We need accelerated performance improvements from companies that reflect the true scientific and economic impacts of unchecked carbon pollution, growing water scarcity and billions of people still living and working in poverty.” Read the rest of this entry »

Mar
15
2010

Corporate Governance Parts of Financial Regulatory Reform Intact

After listening to Sen. Christopher Dodd’s financial regulatory reform bill press conference this afternoon and poring over the summary, I can say that not a whole lot has changed from the initial discussion draft from November. And, for some, that is both good and bad.

The biggest changes in the 1,300-page bill are some new powers granted to the Federal Reserve (including extending regulatory powers to the Fed over nonbanks that pose risk to the economy), a new name for the systemic risk overseer (Financial Stability Oversight Council, which sounds a lot like the G-20’s Financial Stability Board), the number of independent members on that board (from two to one), and the addition of the so-called Volcker Rule (named after former Federal Reserve Chair Paul Volcker, it prohibits proprietary trading for banks).

“This legislation will create an early warning system so that someone is tasked with looking out for the next crisis, which will surely come,” Dodd said during the press conference. “We will create a systemic risk council with a job of scanning the economic radar to identify unsafe products or practices that could threaten our economic stability, and the authority to stop them when they occur.” Read the rest of this entry »

Mar
12
2010

Say on Pay Takes Early Lead in Proxy Season Shareholder Proposal Race

Executive compensation continues to be a hot topic in the board room and among shareholders. In the beginning of the 2010 proxy season RiskMetrics reports that four of the Top 10 governance shareholder proposals are compensation-related with advisory vote on compensation, or Say on Pay, ranked first with 46 proposals on the ballot.

The other three compensation proposals include having a retention period for stock awards (13 proposals), establishing anti-gross-ups policy (six proposals) and limiting the number of CEOs on compensation committees (three proposals). [By the way No. 2 on RiskMetrics list is shareholders’ right to call special meetings with 42 proposals.]

While Say on Pay has been considered by the SEC and included in several financial regulatory reform bills on Capitol Hill, momentum for advisory votes on compensation has picked up steam in the past year following the requirement for TARP (Troubled Asset Relief Program) recipients to hold such a vote. As of March 2, a coalition of investors reports that more than 70 Say on Pay shareholder proposals have been filed for this proxy season. And more than 50 public companies have voluntarily adopted advisory votes for compensation. Read the rest of this entry »

Mar
08
2010

Climate Change Among Risks Boards Have on Disclosure Radar

With the 2010 proxy season upon us, there are already signs that risk disclosure will remain high on the priority list for boards in light of new enhanced SEC proxy disclosure rules and shareholder pressure.

In light of the recent financial crisis, the enhanced disclosure rules, which went into effect Feb. 28, [See past blog post, SEC Wants More Concise Disclosure That is Material, Dec. 18] have a heavy emphasis on risk management and oversight. Also, an Oct. 27, SEC Staff Legal Bulletin (No. 14E-CF) stresses how the regulator will not so easily allow no-action requests from companies receiving risk-related shareholder proposals. One of those risks out in front this proxy season is climate change. (See below, “Investors File a Record 95 Global Warming Resolutions: a 40% Increase Over 2009 Proxy Season”) Read the rest of this entry »

Mar
03
2010

Worth Reading … Financial Crisis

At this point, a lot has been written about the causes of the financial crisis of 2007-2009. From the toxic mortgage-backed securities market to the lax regulation of derivatives to the creation of financial institutions that were too big to fail, many experts have written about their take on this historic collapse.

But what’s more important now for those boards and companies trying to move forward is real advice about what to do next … as in the next two to five years. Those analyses from such service providers as KPMG’s Audit Committee Institute, Deloitte , PWC and Ernst & Young as well as the Committee for Economic Development and the American Institute of Certified Public Accountants (AICPA) are providing that much needed advice. It is up to the boards and the company counsel to pore over these and integrate any appropriate actions in their strategic plans.

In its Director Notes series on the 2010 Proxy Season, The Conference Board Governance Center has tackled the challenges posed by the financial crisis. The January installment by John Wilcox, chair of Sodali Ltd., titled From Compliance Governance to Strategic Governance, [Membership required] focuses on how corporate boards will come under pressure to explain how they integrate governance with performance and long-term strategic business goals. “In addition to steering their companies through difficult times, business leaders must work to restore public trust in private enterprise…,” Wilcox wrote.

The financial crisis is also addressed in The Conference Board Governance Center’s The Role of the Board in Turbulent Times: Leading the

The Role of the Board in Turbulent Times

The Role of the Board in Turbulent Times

Public Company to Full Recovery [Click on cover image on right.]

Wilcox surmises the 2010 proxy season will focus on the following corporate governance issues:

  • Integration of governance decisions with business strategy and performance goals
  • Board oversight of risk management and internal controls
  • Corporate culture, ethics, internal equity, and leadership style set by the CEO and board
  • The board’s strategic competence in executive pay, CEO succession planning, and board self-assessment
  • Quality of disclosure and communication between the board and shareholders.

The following are recent reports, papers, and articles on the financial crisis that I think are worth reading: Read the rest of this entry »

Mar
03
2010

Life with Director Education Sans Accreditation

As I write this, we are in now officially in a post-accreditation era for director education. While it may not feel that much different than the past nine years, it means that organizations like The Conference Board Governance Center, The Director Network and the National Association of Corporate Directors are suddenly more accountable for the programs they provide.

Of course, this is all the result of RiskMetrics Group discontinuing its director education accreditation program as of March 1. In the end, it was a business decision for the financial research, risk management and governance service provider as it replaced its longtime Corporate Governance Quotient (CGQ) with Governance Risk Indicators (GRId).  The accreditation program had been in place since the days of Institutional Shareholder Services, which eventually merged with RiskMetrics.

While I was not able to speak with someone on the record in my initial post, I did listen to a detailed Feb. 25 Webcast interview by Corporate Board Member’s TK Kerstetter with Pat McGurn, special counsel to RiskMetrics. He explained the reasoning behind leaving director education out of GRId.

“GRId is closely tied to the [RiskMetrics] voting policy of a company,” McGurn said. “Director education is not part of that when we look at the reelection of a director of a board.” However, he did hold out hope that in the future it could become a component in the GRId, if it reenters the realm of RiskMetrics’ voting policy.

McGurn reiterated what RiskMetrics said in a statement earlier this year about the decision to drop the accreditation program, although he did admit it wasn’t an easy one.

“The accreditation issue was a tougher one for us [than dropping director education from GRId],” he said. “Back in 2002, people laughed at us when we said we were going to include in the [CGQ] rating that directors were going to get continuing education. Fast forward to today, and these programs are ubiquitous. They are everywhere.”

When the director education accreditation program started, RiskMetrics looked at the length of time of a program (preferably eight hours), the quality of the faculty (they should be board members), and course material. “We wanted academic institutions and not-for-profits to get into the business,” McGurn said. “And then we wanted market forces to take over. Now we have determined it has been ‘mission accomplished’ [when it comes to director education programs].”

Kerstetter promises a second part to the interview with McGurn later this week. And it appears the fate of RiskMetrics itself should be on the table. That’s because RiskMetrics announced it has been sold to MSCI Inc., a global provider of investment decision support tools. Under the terms of the merger, MSCI will purchase RiskMetrics for $1.55 billion in a cash and stock transaction.  [See story here.]

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