Category: Compliance in current and historical events

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Compliance in current and historical events

The bankruptcy of Lehman Brothers

For over 150 years, Lehman Brothers Holdings Inc. was one of the largest financial services organizations in the world. In the United States it had far-reaching business operations in investment banking, securities sales and trading, research and analysis, asset and wealth management, and private equity investments.

Despite this long history, in the early 2000s Lehman Brothers was deeply impaired by the firm’s involvement in the subprime mortgage market, the impending bursting bubble of which precipitated the 2008 global financial crisis. Losing clients, market value, and rating status rapidly, Lehman Brothers filed for bankruptcy on September 16, 2008. This date is often seen as the impetus of the subsequent financial crisis, when widespread, sustained market collapse commenced.

The Lehman Brothers businesses were almost immediately taken over by Barclays in North America and Nomura Holdings elsewhere in the world. However, the impact of the bankruptcy was seismic. It had a strong effect both in concrete terms of losses in the financial markets and stress to the economy as well as a symbolic effect in representing the “too big to fail” categorization that troubled the global financial system and the many large firms within in that suffered great losses during the ensuing crisis.

  • A Colossal Failure of Common Sense – Also a best-selling book by Lawrence G. McDonald with Patrick Robinson, this lecture goes into great detail of the events leading up to, during, and following the Lehman Brothers bankruptcy during the years 2007-2010. The study goes even further back as well, to unpack the changes in financial regulation and banking industry laws from the 1990s which allowed the business conditions under which products like the subprime mortages and resulting securities were created and sold.
  • The Last Days of Lehman Brothers: Moral Hazard – This film dramatizes the events of the weekend leading up to, and in hopes of preventing, the eventual bankruptcy of Lehman Brothers. The subtitle “moral hazard” refers to the situation in which precarious risk calculations are made by individuals who do not face the liability and/or loss if the decision was the wrong one.   This sort of risk-taking was prevalent during the lead-up to the financial crisis and in the subprime mortgage securitization market. The bankruptcy of Lehman Brothers served as both a reminder that the risk could come home to roost after all, as well as a cautionary tale for financial firms and governments in the future to continue to try to mitigate this exposure.
  • Wall Street Crash of 2008 – This is the real-time video from CNBC on the evening of September 14, 2008 which reports the unfolding story that Lehman Brothers was going to collapse and file for Chapter 11 bankruptcy protection the next day (followed by a bankruptcy filing the day after that).
  • Did Lehman Brothers Cause the Financial Crisis & Stock Market Crash on Wall Street? – This interview between Maria Bartiromo and Yves Smith analyses the effects of the Lehman Brothers bankruptcy to ask whether the firm’s collapse contributed to the causes of the global financial crisis or simply signalled the beginning of a trend.
  • Five Years After Lehman Brothers – This discussion on The Agenda with Steve Paikin from 2013 looks into what has changed, or not, in the global economy and financial services sector since Lehman Brothers went bankrupt in 2008 and the markets and industry began their prolonged collapse.

 

The story of the rapid decline and fall of Lehman Brothers, and the collapse of the global economy and markets that followed, is one that will remain captivating to students of the 2008 financial crisis for years to come. Furthermore, the events of that weekend in September 2008, and their causes and effects, serve as an interesting and important measure against which compliance professionals and decision-makers in the business should judge their assumptions of risk and expectations for liability.

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Compliance in current and historical events

Martin Shkreli and unethical leadership

“Pharma bro,” financier, and entrepreneur Martin Shkreli is as well-known for his controversial antics on social media and in the press as he is as a biotech CEO. Shkreli gained public attention in 2014 and 2015 for acquiring the rights to market drugs and then hugely raising prices, first at Retrophin with Thiola and next at Turing Pharmaceuticals with Daraprim. In August 2017, Shkreli was found guilty on two counts of securities fraud and one count of conspiracy to commit securities fraud by a jury in New York after standing trial where he was accused of defrauding investors in a Ponzi scheme.

Shkreli gains and sustains attention by modelling reprehensible conduct and immature, immoral behavior. His entire persona is calculated to shock and outrage, promoting a confident attitude in the face of ethical and even legal wrongdoing. The prominence of such a flamboyantly, defiantly negative character presents an affront to the conventions of compliance and ethics in business.

  • Shkreli is far from alone in his controversial and ethically questionable pricing and business practices, though his attention-seeking behaviour and criminal prosecution has kept him in the spotlight. He’s also joining other corporate wrongdoers in his business at exploiting opportunities for profit typical in the pharmaceutical industry, despite their effects later on consumers:  Newly Convicted ‘Pharma Bro’ Martin Shkreli Shined a Light on Pharma’s Biggest Scandals
  • And, despite Shkreli’s preciousness and loud belief that he is a genius, he can also be seen as just another fraudster in a long American tradition of trusting bad people because of a cultural eagerness for innovation and disruption:  There Is Nothing New Under the Sun, Martin Shkreli Edition
  • Emotional intelligence is a popular term in management theory, borrowing ideas from psychology to suggest that leaders who understand their own emotions and those of others, and sensitively incorporate this information into their decision-making and leadership style, are more capable. Typically this is used to inspire positive behaviour like better communications or more sustainable business strategy. Shkreli is a defiant example of the opposite effect, claiming brilliance yet totally disregarding emotional interdependence and the greater good of society. In his mold, ethical behavior and integrity have no relevance to his sense of personal victory:  The Emotional Intelligence of ‘Pharma Bro’ Martin Shkreli
  • Time will tell what the sentencing outcome will be for Shkreli’s recent criminal convictions (many legal commentators think he will receive limited jail time, Shkreli’s defense team has suggested he may serve none at all), but a guilty verdict which would subdue some people has made this famous misbehaver even more boastful:  Martin Shkreli’s lawyers fail to corral bragging ‘pharma bro’ ahead of sentencing
  • Can Shkreli’s legal team convince him that his “people skills” need to be improved to keep him out of prison in the future? Seems unlikely, as his reputation of being bold, odd, and obnoxious gets him attention and keeps him relevant, which seemed to have been appealing to the investors he defrauded, some of whom made money anyway because of side agreements with him. Clearly he sees himself as another peculiar but brilliant business visionary, pointing out the danger in the cult of personality around difficult and immoral leaders who mistreat their employees and partners and use eccentricity as a pretense for selfish, unethical behavior:  Martin Shkreli’s Lawyer: ‘Pharma Bro’ Has an Image Problem

Even through his criminal prosecution, Shkreli seeks and thrives off the attention he gets for acting out in poor taste. He uses moral relativism and the “everyone else is doing it” defense for his unethical and fraudulent behavior, and the profits he gains for himself as the justification.   His financial success should not be admired or enabled by any organization wishing to sustain a business while contributing to a more transparent and responsible society for the future.

Corporate cultures must not reward this type of person with commercial partnerships or philosophical support; while they may make profits, they do so through scheming to deceive and defraud. People like Shkreli are the true rare bad apples that narrow the ethical framework and make the right choices problematic for the otherwise good people they influence.

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Compliance in current and historical events

Compliance 101: A quick guide

As this blog intends to demonstrate, compliance is both a subject for practitioners as well as a topic of general interest that shows up in business and the news all the time. Current and historical events, popular culture, and all types of jobs touch upon compliance subjects on a daily basis. Just as the law is everywhere in life, so are regulations and questions of ethics and integrity.

However, for such a ubiquitous subject, typical awareness of compliance matters is often very low. People may be very used to asking themselves whether events they read about in the news match with their own general norms. There is often a challenge between existing rules and what may be morally acceptable. This perceived discrepancy is nuanced and can prove hard to navigate without frustration.

As a prelude, ask yourself: have you ever heard of any current events regarding compliance? Or, perhaps, have you ever encountered any problematic dilemmas in your own life, which provoked curiosity about ethical choices and integrity? These could be perhaps news stories, personal experiences, or commercial situations you have observed in work or at school. These can include moral dilemmas and “catch 22” situations where commercial interests and personal obligations collide, as well as stories of crises and scandals. What have you heard, if anything, about the meaning and function of compliance?

Generally speaking, the main definitions of compliance as a discipline include:

  • Conforming to relevant laws, regulations, principles, and rules, standards and codes of conduct applicable to an organization’s activities, in letter and in spirit, or the process of doing so. This may concern gray areas, with no strict answer or universal judgment.
  • The aspiration that informs organizations in their efforts to ensure that they are aware of, and take steps to comply with, all relevant laws and regulations. This can be both prescriptive, referring to such laws and regulations that already exist, or predictive, referring to attempts to anticipate future laws and regulations.
  • Also describes efforts to ensure that organizations are abiding by both industry regulations and government legislation. This practice area is often called regulatory compliance.
  • Finally, emphasizes acting with integrity and therefore draws heavily from the study of ethics and morality, even extending philosophy and psychology. A modern goal of an effective compliance program is to design governance and control structures that encourage employee and organizational integrity and create disincentives against and penalties for dishonest or unethical behavior.

Typical tasks and responsibilities of a compliance professional include:

  • Advising business partners in identifying and assessing compliance risks (of legal or regulatory sanctions, material financial loss, or reputational damage) and effectively managing and mitigating these risks
  • Modeling good conduct and proscribed values of integrity and ethical behavior
  • Training employees and management on compliance matters
  • Monitoring business implementation of key compliance policies and procedures, and reporting accordingly to management on efficacy and accuracy of same
  • Coordinating regulatory stakeholder management

Now, check your impressions about what compliance means, and consider this in concrete terms and from your own perspective. Hopefully you now have a more meaningful insight on what compliance is and means in context of both current and historical events

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Compliance in current and historical events

Enron and the mood in the middle

The Enron scandal is one of the most famous examples of modern corporate fraud and corruption. The publicity of the fraud, subsequent bankruptcy of the firm, trial of principals Kenneth Lay and Jeffrey Skilling, and the cascading negative impact on employees and shareholders form a notorious history of corporate malfeasance and misleading investors.

Enron was an energy company that dominated its market in the 1980s and 1990s. Originally involved in the distribution of electricity and natural gas and creation of the related infrastructure, through a series of mergers and acquisitions and expansions of corporate strategy, Enron extended its business into commodities trading, retail energy, water distribution, and data management. Enron was well-known for its commercial success, immense corporate wealth, and aggressive marketing and promotion strategies. Enron was also a fraud, with many of its purported assets overestimated in value or non-existent, and its immense liabilities and losses hidden in other entities so that its financial statements appeared much more positive than they ever actually were.

More has been written about the pervasively fraudulent practices that led to Enron scandal, and the individuals and motivations behind them, than probably any other corporate bankruptcy in history. Many of the principles of, and the unfortunate justifications for, a robust compliance and ethics program can be illustrated by this case. One of the more interesting points of analysis involves the conduct of employees during the fraud and their reaction to signs they may have noticed but not reported, followed by the eventual widespread discovery of the scandal.

Professional skepticism is undervalued in many corporate cultures. Enron employees were so enchanted by the aspirational allure that the company offered that they too often became blind to risks and unethical behavior, and missed or refused the opportunity to get out or to report the fraud.   The focus in discussions over corporate governance and compliance programs often focuses on “tone at the top” (senior management and supervisory boards) or the impact corporate collapses have on shareholders and the public – but a more important question is what about these employees who were there during the fraud, may have noticed signs, did not or could not do anything, and after are left with nothing but a sense of betrayal? The question of how to encourage these employees to mitigate risks or report wrongdoing, even in the face of personal loss or certain reprisals, challenges and inspires compliance professionals to strive for positive change.

This tale of corporate non-governance, as it was, demonstrates that putting compliance and ethics on the back burner in favor of commercial and competitive pursuits can have a far-reaching disastrous impact. The intersection of business and compliance will always be a tense spot, underscored by commercial pressures, cultural differences, and never-ending change. However, a closer, more understanding relationship between the two disciplines is the best path to modelling the employee conduct that is necessary for longevity and sustainability of success.

For compelling anecdotes from a personnel perspective of the Enron scandal, this 2002 article by Charles Fishman is a good read.

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Compliance in current and historical events

Ford Pinto and organizational integrity

The Ford Pinto debacle of the 1970s demonstrates vividly that focusing on commercial pursuits at the expense of integrity considerations can have a disastrous effect on consumer safety.  No historical survey of organizational ethics and decision-making is complete without a study of the controversial production of this vehicle.

The Ford Pinto was a subcompact car made and sold by Ford Motor Company from 1970-1980. The design of the car left it vulnerable to fire in the event of a rear-end collision due to the location of the fuel system between the rear axle and rear bumper. Though crash testing indicated heightened risk, and safety was questioned by some engineers, Ford proceeded with manufacturing the vehicle as designed. As early as 1973, Ford began receiving reports of catastrophic injuries in fires after rear-end collisions at low speeds in Pintos. Relying on standard review routines, Ford found no justification for a recall. Issues with the Pinto’s safety and continued non-action on the part of Ford continued until Ford finally recalled the Pinto in 1978, while claiming it was only doing so due to public outcry and still not acknowledging any design defect in the car. Subsequently over 100 lawsuits were brought against Ford in connection to the Pinto.

This is perhaps the seminal case of business choices to value commercial interests over consumer protection. Individual designers and engineers at Ford realized that the Pinto could have safety issues, but they worked under immense time pressures and in a structured, hierarchical project management system where people made decisions that were disconnected from the ultimate outcome of the product. The production of the Pinto was a process dominated by routines that emphasized expediency and profit. Relaxed regulations due to political pressures on the marketplace meant that companies like Ford Motor Company could choose whether it was economical or expedient to meet certain standards rather than making these decisions based on regulatory requirement or safety concerns alone.

The Ford Pinto case also lays bare the “bad apples” theory of ethics, in which corporate scandals that harm the public are often blamed on a bad person doing bad things. In reality, most people involved in these situations are good people who do not intend to do bad things, but make choices in isolation or under duress, as part of routines, which have a knock-off effect and can lead to disastrous results later.

For a very complete and powerful contemporary analysis of the Ford Pinto case, Mark Dowie’s 1977 Pinto Madness article in Mother Jones is a must-read.