Corporate Governance

One of these things is not like the other

Ivanka.jpg One of these things, is just not the same. Try to guess which one! Here’s the current board of Trump Entertainment Resorts, chaired by The Donald.
– Wallace B. Askins, Retired Executive Vice President and Chief Financial Officer, Armco, Inc.
– Edward H. D’Alelio, Executive-in-Residence and Member, College Management Advisor Board, University of Massachusetts, College of Management
– James J. Florio, Founding Partner, Florio Perrucci Steinhardt & Fader, LLC
– Cezar (Cid) M. Froelich, Partner, Shefsky & Froelich Ltd.
– Morton E. Handel, Chairman of the Board, Marvel Entertainment, Inc.
– Michael A. Kramer, Partner, Perella Weinberg Partners, LP
– James B. Perry, Chief Executive Officer and President, Trump Entertainment Resorts, Inc.
– Don M. Thomas, Consultant and Retired Senior Vice President of Corporate Affairs, Pepsi-Cola Bottling Co. of New York
– Ivanka Trump, 26-year Old Girl
Shares of Trump (Nasdaq: TRMP) shot up almost 3% on the news that Ivanka is joining the board, then came down to flat on yesterday’s close after people realized Trump installed several corporate defense mechanisms on his daughter, including a poison pill and supermajority change of control provision. All Ivanka has to do now is get licensed to work in the casino industry and like, learn shit.

Rigas Family Gets Locked Up

John and Timothy Rigas, the father and son who used Adelphia funds for such opulent treasures as 100 pairs of bedroom slippers and two $3000 Christmas trees were ordered to prison after a four-year appeal process. Adelphia Communications collapsed in 2002 when the firm disclosed $2.3bn in off-balance-sheet debt.
Both Rigases must report to the slammer on August 13, Timothy for twenty years and John, who is 82, for fifteen.
Adelphia founder Rigas and son told to report to prison in August for fraud convictions [Boston Herald]

regulators.jpg There were 116 financial restatements in corporate public filings in 1997. Almost ten years later (2006), that number has grown over 15 fold to 1,876. Hank Paulson wants to know why. Paulson has ordered a Treasury study of restatements, their predominant causes, and effect on investors that will be headed by former SEC chairman Arthur Levitt and former SEC chief accountant Donald Nicolaisen.
The main reason restatements are thought to have increased so dramatically in number is because of tougher accounting oversight, and the fact that accounting firms have become increasingly aggressive in the face of so much exposure to litigation. Projected recommendations of the study include reducing the liability of public accountants and diluting the auditing industry so that it isn’t as dominated by the same few firms.
A restatement explosion seems an odd justification for a major deregulatory push. This would assume that companies are not using dodgy accounting tricks to mask true performance and that financial restatements are somehow onerous to companies that misstate financials in the first place. One would think that tougher accounting rigor in audits followed by a spike in restatements is a sign that a lot of violations were going unnoticed, not that accouting firms are creating unnecessary restatements through nit-picking.
Treasury Targets Financial Fixes [Wall Street Journal]

If the phrase ‘jumped the shark’ hadn’t long ago done so itself, we might write that the news coverage of News Corp’s bid to buy Dow Jones jumped the shark this morning. The business news media is obsessed with the story—which just happens to be about the business news media. And sometime late last night and early this morning—to the sound of full-color print presses humming and newspaper delivery trucks idling—the coverage of the story really began to plumb the depths of its own navel.
This morning the New York Times delivered the news that—as the headline proclaimed—‘Wall St. Journal Editors Held News of Murdoch Bid.’ (Click here for Joe Weisenthal’s reaction in Opening Bell.) It’s a story that the Times editors viewed as important enough to run on the front page of the business section. So what we end up with is a story in a business section (the Times) about how a business news organization (the Journal) covered an acquisition about a business news organization (also the Journal). And now all the other business news organizations (CNBC, the wire services, DealBreaker) are reporting and commenting on that.

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The Costs of Compliance: Too Few Geeks

tom_perkinsmemoir.jpgWe’ve noted before that the faddish devotion to compliance-oriented corporate governance—encouraged by everything and everyone from Sarbanes-Oxley, it’s attendant regulatory schema, some of the more opinionated-parts of the business press and the reigning corporate governance gurus—has serious costs that are all too often ignored. The whole corporate-spying pretexting scandal at Hewlett-Packard was probably the public example of this.
Now Tom Perkins, a veteran from the HP wars, has made his first public remarks since the scandal and directed them at exactly this problem. According to Perkins, too many corporate board members are so obsessed with compliance that they don’t know much about the company on whose board they are serving. He draws a useful distinction between two-types of directors–the guidance geeks who understand the business and the compliance nerds who understand legal rules and regulations.
The San Jose Mercury News reports:

During his 35-minute talk, Perkins outlined two kinds of board members, placing himself in the category of an old-style venture capital-type who is extremely involved in the business. He called that type a “guidance director.”
In contrast is the new emerging director, whom he called the “compliance director.” He described that person as someone increasingly focused on Sarbanes-Oxley requirements, who jumps from company board to company board, dispensing and heeding advice from consultants and lawyers.
Perkins, 75, derided the latter, which he called a “plug-to-plug compatible director” who believes he or she is equally capable of serving on a bank board as on that of a technology behemoth such as HP.

And Perkins thinks things are only getting worse. The compliance nerds are beating out the guidance geeks.

But today, he said, with too few “geeks” on its board, HP has evolved fully into a compliance board, “possibly untroubled by worries about technology and marketing strategy.”
“I think the guidance board will vanish and it will be replaced by compliance boards who just listen to lawyers and consultants,” he said, referring to the general corporate trend.

Ex-HP director laments corporate board trend [Mercury News]

manlaw.jpgWe’ve been to enough board meetings that look like those Miller Lite “Man Law” commercials to know that having more women on corporate boards is probably a good idea. But we’re a bit skeptical about this recent study sponsored by TIAA-CREF which claims to demonstrate that having three or more women on the board “enhances corporate governance.”
But before we get all grumpy about this, here’s a summary from the Conglomerate blog of what the study shows.

The study was based on interviews with 12 CEOs, 50 women directors, and seven corporate secretaries of Fortune 1000 companies. The study found that women impact board governance in at least three ways, (1) by bringing different perspectives into boardroom discussions, including the perspectives of multiple stakeholders, (2) raising difficult issues–that is the study found that difficult problems are less likely to be ignored when women are in the board room, and (3) by altering the dynamics in the board room to create more open and collaborative discussions, thereby allowing management to hear board concerns without feeling defensive.

Well, we suppose it’s nice that the women bring “different perspectives,” raise “difficult problems” and create “more open and collaborative discussions.” But what’s all this got to do with enhancing corporate governance? We’ve only read the executive summary, so maybe there’s harder data in the study than we’ve come across, but we can’t help but suspect that these things are themselves considered “enhanced corporate governance.” Because the way that phrase is used is often as a cover for promoting various political or social agendas rather than as finding better ways to deliver value to shareholders.
Critical Mass on Corporate Boards [pdf]

weeds.jpgAround this time last year, when Nancy Botwin wanted to increase sales from her marijuana peddling business, she was instructed by her accountant to open up a fake bakery as a front to legitimize her dealings to neighbors, friends, the DEA, et al. The bakery, Doug, explained, would put people off the trail, and she would be free to get as many housewives high as she wanted. Forbes explores a similar situation today:

Chief ethics and compliance officers have become trendy in recent years, but some experts fear they act mainly as window dressing. If one person is in charge of ethics, they argue, everyone else might think they’re off the hook. “In a way, it’s a job creation program,” says Mary Ann Jorgenson, a partner in the law firm Squire, Sanders & Dempsey. “It’s not great for every company. It’s not necessary for every company.”
Chief ethics officers started appearing in corporate hallways in 1991, when the Federal Sentencing Guidelines for corporations went into effect. The guidelines stated that companies with effective compliance and ethics programs could receive preferential treatment during prosecutions for white-collar crimes. It’s an “A for effort” philosophy, in which companies that prioritize ethics can sometimes escape punishment when their ethics programs fail.
But the position is sometimes “just a mask for the company to hide behind,” says Efrem Grail, a partner at law firm Reed Smith, who specializes in corporate investigations. Hunsaker is the perfect example. In an e-mail exchange obtained by The New York Times, Hunsaker asked Anthony R. Gentilucci, the head of HP’s global investigations unit, whether the spying tactics used by a subcontractor were “above board.” Gentilucci responded, “I think it is on the edge, but above board.” To which Hunsaker replied: “I shouldn’t have asked.”

Chief Ethics Officers: Who Needs Them? [Forbes]

We’re on the record as being fans of decentralized rules for corporate governance. Although lots of people seem to think that a national, uniform set of rules would make the markets more efficient, we’re skeptical that any one set of rules would (a) get the formula for corporate governance right and (b) really be the best fit for the many different capital requirements of American corporations. So we were glad to see Larry Ribstein take on the essay in today’s Wall Street calling for the SEC to establish uniform rules for the election of directors.

As for the Millstein/Goldschmid/Morgenson argument that director elections without shareholder nominations are Soviet-style – this is backwards. American corporate governance is fundamentally ruled by the capital markets, which discount information into stock prices and give firms and their managers incentives to respond to market demand. “Soviet-style” is when this process is circumvented by one-size-fits-all federal rules or, possibly even worse, by the chaotic system that exists in the absence of SEC clarification.

The federal role in corporate governance [Ideoblog]