Monday, July 19, 2010

Lehman Sisters

There was a memorable “mother-in-law-moment” at the Women in Investment Conference (February 2009 in Sacramento, CA).  A MILM is when a woman (expressing her opinions from years of frustration with the status quo) says something outrageous; eyes roll among the men in the audience, while the women quietly and deferentially shrivel into the wallpaper, wishing they could just say, “MO-ther,  please!!” 

The MILM quote of the day stemmed from an op-ed piece penned by New York Times columnist, Nicholas D. Kristof, about his observations at the Davos, Switzerland World Economic Forum. Kristof said,

“We wouldn’t be in this financial mess, today, if Lehman Brothers had been Lehman Brothers and SISTERS.”

Nicholas D. Kristof, “Mistresses of the Universe” February 7, 2009, New York Times

The tales that mothers tell tend to take on a life of their own, so we continue to hear this opinion bandied about in otherwise legitimate forum where we would expect to hear in-depth analysis of the realities of the financial meltdown. At The Women in Investment Conference, a woman speaker from one of the sponsoring organizations (CalPERS, CalSTRS, and the California Legislative Women’s Caucus) repeated the comment to 500 financial women in attendance.

Do women in investment really believe that there were zero women in the halls and gatherings of Lehman Brothers, their accountants/auditors, ratings agencies, transaction partners, commercial and subprime real estate brokers and lenders, or government oversight agencies during the years leading up to the financial meltdown?   Do women in investment really believe that there were no women at CalPERS, CalSTRS or in California oversight entities (mortgage, finance, or pension funds) during this era?

A little over a year later, on March 10, 2010, Anton R. Valuka, the court-appointed Bankruptcy Examiner, released nine volumes of analysis and appendix material in the matter of Lehman Brothers in the U.S. Bankruptcy Court for the Southern District of New York.  The witness list alone identifies a host of women in positions of responsibility in compliance offices, human resources, accounting, general counsel, boards of directors and auditors to the company as well as inside governmental agencies. Women were there in spades.  Our hands are no cleaner than anyone else’s.

The Lehman Bankruptcy Report is a powerful assessment of where things went wrong. Recent headlines from Bank of America, doing exactly the same accounting gimmickry -- shuffling debt on and off books just-in-time to meet end of month or quarter reporting -- affirms that we have not solved these problems. 

The Bankruptcy Report is must reading for anyone trying to understand her responsibilities: (1) within an organization charged with a fiduciary duty, (2) within management reporting to auditors, accountants and boards of directors, (3) serving on boards charged with oversight of management, accountants, and auditors, and (4) as shareholders who should demonstrate fundamental financial literacy before parting with one’s investment dollars (your own or that of your employees).

Examiner Valuka’s Lehman Report (

Sections I and II:  Introduction, Executive Summary and Procedural Background
Section III: detailed analyses, covering

A.1      Risk
A.2      Valuation
A.3      Survival
A.4      Repo 105
A.5      Secured Lenders
A.6      Government
B          Avoidance Actions
C.        Barclay’s Transactions

1-34     Including names and employment of witnesses

What we learn from this comprehensive assessment is that there was more than enough blame to paint everyone, man and woman, bright scarlet red.  A few highlights would include:

1.         relaxation of internal risk controls so as to accommodate excessive growth of the commercial real estate business;

2.         Lehman executives showed errors of judgment and possibly actionable balance sheet manipulation;

3.         an investment bank business model that fostered excessive risk taking and leverage;

4.         Lehman’s own accounting people called Repo 105 “an accounting gimmick;”

5.         government agencies failed to anticipate or mitigate adverse outcomes;

6.         ratings agencies evidenced a strong propensity to over-focus on net leverage, fostering excessive use of debt or accounting devices, with full knowledge of auditors;
7.         outdated and incompatible technology systems weakened internal controls of accounting systems.

We know that women constitute 46% of the workforce.  So, women must also accept responsibility and accountability for our share of the errors and oversights.   Women could have done a great deal more to identify the red flags, warning signals, problems, and gamesmanship that were visible inside Lehman Brothers, the auditors, the investment partners, ratings agencies, and governmental offices before the collapse. 

Somehow, we are supposed to believe there were no women in commercial real estate; subprime residential mortgages; mortgage brokers; mortgage loan originations; securitization; appraisals; audits; accounting or executive financial positions; investment; executive compensation; compensation consultants; banks, hedge funds or private equity; municipal bonds; regulatory oversight positions in government; access to whistleblower procedures; ratings agencies; governance analysis and proxy firms; technology; compliance or internal controls.

MO-ther, please!!!

When women are ready to accept the burden of that failure, and begin instead to address the fundamental causes, then women will have a role to play in ensuring a more viable financial future for ourselves and our children.

Thursday, July 15, 2010

What is a Director’s Job?

One director, in a recent article, described how the company arranged for board members to visit customers in their homes and discuss the company’s products.  In a conversation with one customer, the director was told the woman had to walk a great distance to shop and thus wanted the product to be available in smaller, light-weight containers.

The director said that, as a result of this conversation, the company now provides the product in containers that that customer wanted because “You can’t merely have the corporate staff tell you [the board] what the business is about… you have to get out and see it.”

Did the director accurately understand his/her proper role and function relative to all the customers of the company?  Did the director comprehend management’s responsibility and accountability for full, complete and accurate market research?

Rather than the director “fixing” the problem of what size product or packaging the company should produce, wasn’t the director’s job to inquire how well the marketing department was capturing customer feedback?  Shouldn’t the director have questioned whether the sales/marketing people were only “broadcasting advertisements” out to the customers – never adequately tuning into “receive mode” to discover new customer wants or needs?  What other product or price “gaps” might the marketing management be missing?

If the marketing department is failing to get complete or quality customer input in this one tiny product area, how likely is it that this or other departments are overlooking other more sensitive areas – perhaps manufacturing risks, unsubstantiated salary differentials or questionable vendor payments?

It is never a director’s job to do management’s work. It is the director’s responsibility to oversee that company components are operating effectively, according to expectations, on behalf of the owners of the company – in the interest of all of the shareholders.

While directors inevitably bring their own historic experience into the boardroom, they have to learn how to function at the right “helmsman” or “helmswoman” level.  As directors, their primary job is “to ensure” that things are done according to Hoyle, operating according to the firm’s strategic expectations, rather than “to do” or even “to tell” the company what ought to be done. 

This is very much an example of the risk of assuming that -- just because women have historically been the consumers – that automatically qualifies them to be good corporate directors. The talented women who have gathered a range of top tier management experience, of which success in marketing may be one component, understand that they are valued because they know both investments AND returns, costs AND benefits, profits AND losses and how to delegate AND verify that what is supposed to happen in fact does.

Monday, July 12, 2010

What Did the SEC Decide?

Women on boards advocacy groups still misconstrue exactly what the SEC decided on December 16, 2009 in their Proxy Disclosure Enhancements final ruling.  It is important to read the body of the decision rather than the footnotes from “interested commenters.” What did the SEC say about diversity?   Read:

The SEC did not require companies to consider diversity or to add more women directors. 

The SEC specifically said that “..the amendments are not intended to steer behavior” and that “companies should be allowed to define diversity in ways that they consider appropriate.”  The new provisions only required that (large) companies provide enhanced information to investors so that, if diversity were an important issue to those shareholders, they could determine how to vote their proxy statements, to buy or sell shares in a company, or potentially to nominate director candidates through the normal nominating/governance process.

Specific new requirement:  “Describe the nominating committee’s process for identifying and evaluating nominees for director, including nominees recommended by security holders, and any differences in the manner in which the nominating committee evaluates nominees for director based on whether the nominee is recommended by a security holder, and whether, and if so how, the nominating committee (or the board) considers diversity in identifying nominees for director. If the nominating committee (or the board) has a policy with regard to the consideration of diversity in identifying director nominees, describe how this policy is implemented, as well as how the nominating committee (or the board) assesses the effectiveness of its policy;”

The SEC described the essential question it faced in these terms:

Question: Should the SEC change their reporting rules to “require disclosure of additional factors considered by a nominating committee when selecting someone for a board position, such as board diversity”?

First Determination: “We agree that it is useful for investors to understand how the board considers and addresses diversity, as well as the board’s assessment of the implementation of its diversity policy, if any.”


Requirement A: “… disclosure of whether, and if so how, a nominating committee considers diversity in identifying nominees for director.”

Requirement B:  “if the nominating committee (or the board) has a policy with regard to the consideration of diversity in identifying director nominees, disclosure would be required of how this policy is implemented, as well as how the nominating committee (or the board) assesses the effectiveness of its policy.”

Second Determination:  “…companies may define diversity in various ways, reflecting different perspectives. For instance, some companies may conceptualize diversity expansively to include differences of viewpoint, professional experience, education, skill and other individual qualities and attributes that contribute to board heterogeneity, while others may focus on diversity concepts such as race, gender and national origin.”

Conclusion: “. . . we have not defined diversity.”

Detailed new reporting requirements:

1.         New disclosure of the qualifications of directors and nominees for director, and the reasons why that person should serve as a director of the company at the time at which the relevant filing is made with the Commission;
2.         Additional disclosure of any directorships held by each director and nominee at any time during the past five years at any public company or registered management investment company;
3.         Additional disclosure of other legal actions involving a company’s executive officers, directors, and nominees for director, and lengthening the time during which such disclosure is required from five to ten years;

4.         New disclosure regarding the consideration of diversity in the process by which candidates for director are considered for nomination by a company’s nominating committee;

In the same final rule-making, there were much more stringent requirements and conditions placed on compensation committees, leadership structure, payments to outside compensation consultants, and risk assessment by the board as a whole or in committee.

The new disclosure requirements mean shareholders have more knowledge about director candidates and the criteria companies use to identify and select directors.  What they do with that information is between investors and the companies in which they own stock.

Wednesday, July 7, 2010

On Personal Information

A director training program which advocated on behalf of women and minorities recommended  creating a 'Board Bio' that would "Include marital status, spouse name, children’s names (and careers of all if appropriate)."

To clarify their intent, they elaborated on their answer to the question: "When/why would family member careers be apropos?" with this comment:

"Board Directors like "connecting the dots" in regards to family relationships. If they know about the spouse, or the adult children, they may be more inclined--or less inclined--to accept a potential director. A Board Bio is different from an employment resume. Unlike applying for a job, seeking to join a business board is more like joining a private club. And if you make it far enough into the interview process the occupation(s) of your family becomes fair game to check for conflict of interest, poor reputation or other potential liability. Hence we recommend that if a person has a spouse and/or adult children that they illustrate their understanding of this dynamic by including them and their occupations in the Bio. If the person is single, we recommend they do not include a sentence about their personal life unless they have adult children.  ....we have entered an era where families and partners have become part of the candidate package consideration. For this reason, it would be irresponsible for us not to address this reality in our training and education activities."

While I knew my own reaction to this recommendation, I decided to survey other professionals in the field of governance, executive/director search, resume preparation, and sitting board members to determine their thoughts on the above recommendation.  The responses are below (only one of which is from a male).

Experienced Current Corporate Director: I disagree pretty strongly with the recommendation on which you are seeking feedback.

Global HR Advisor: My initial thoughts are nadda: not my recommendation …it feels sexist.

Experienced Current Corporate Director: I have never included this personal info in a CV, operating or Board.  I have never been counselled to do so, nor questioned about it.  I fail to see how it is relevant.  If I were applying for a university presidency where my spouse and/or other family members might be expected to be part of activities, then I could see a relevancy.

Executive Search Partner: I have seen more Bios without, versus with, personal family details.  Those with family details tend to reference a spouse/partner who has held position(s) of prominence and/or have been recognized publicly

Most Bios that I’ve seen reference the organizations/Boards with which women have been associated, their positions, and their accomplishments/achievements (in other words the value of their contributions, recognizing the notion of current/past performance as an indicator of future performance and potential fit.)

Times have changed and continue to change and family circumstances change. Prejudices, although possibly dormant, are a reality and part of human nature. Bona fide defensible requirements and fit for an appointment, be it to a Board or a corporate leadership role, remain the pillar for decision making.

[Assessment of bona fides and fit] … can become very gray (and in circumstances potentially in contravention of employment law even though the process for Board hiring is somewhat different but perception in this case could prevail) when one introduces personal data

[A]nd you have to ask the question of what merit/foundation does this information have in truly assessing one’s capability/competency and fit.

With respect to the notion of any potential conflicts of interest by virtue of familial activities/involvements, that can be ascertained through an interview process plus through reference checking (both informal and formal), including credit and criminal checks OR the due diligence can be done prior to an interview.

Executive Search CEO: [I]ncluding personal information may preclude you from getting an interview and will never cause you to get an interview (and if it does, you don't want the position). So, age, family status, even objective, need to be left off. An initial interview should be the result of a company liking a person's professional qualifications, which should clearly be spelled out in the resume and cover letter. If there are conflicts of interest or better yet, synergies, these will come out during the interview process.

Resume/Search Professional: My thoughts are that family info is NOT needed BEFORE an interview.  Board recruiting is often based on a resume, not a bio, but could go either way depending on depth of the bio. At an interview, if all is going well, the candidate can leave behind a bio with an addendum containing the family information described in your email. She can ask if this information is wanted by the company to determine any conflict of interests  – and then of course be prepared to hand it over. Many boards will ask about this during the interview.

My own original comment was that women corporate directors whom I’ve interviewed and studied tend to keep their “personal” lives out of the limelight.  I strongly echo the opinion of the Executive Search Professional, above, who asked, “What are you trying to accomplish?” What merit, foundation or value does this information have in truly assessing one’s experience, capabilities, competencies, fitness to serve or fit within a corporate boardroom? Might this rather be an expression of the idea that the women believe their husband, their children, and all of those jobs and achievements ARE the woman’s accomplishments?  

Certainly, this is a period of more rigorous examination of individuals and potential conflicts of interest, but guess whose job it is to examine and evaluate the families’ potential conflicts and – if any are found – to step back away from consideration as a director.  That’s what one woman in my book did when she discovered that her husband’s firm was property owner where the company was leasing. She judged the potential for questions and made the decision to decline the board. 

By putting such personal information into a “board bio,” it appears as if the women are asking someone else to check their credentials for them, as if they could not do it themselves.  What happens the next time those individuals come across a potential conflict of interest? Will they simply put the information out there and hope someone else will make the tough call, or are they ready to make those crucial determinations themselves based on their own analysis of the facts presented?  We know which is expected of a corporate director.

Do we really think that someone who would go into a board interview --  knowing “that a spouse, children, parents or other close relation works for the competition at a level where the confidential and proprietary information shared could damage the business” -- would ever put that information into a “board bio?” Why go near the interview, let alone with a “board bio,” knowing such a conflict existed?

We definitely need wider director searches, better vetting of candidates, and other improvements to produce more inclusive selections.  Nevertheless, do we really believe nominating/governance committees, in this 21st century, will welcome one who sees those tough challenges so negatively:  as “staffing an elite private club,” or “purposefully excluding women and minorities”?  Could we demonstrate a little more respect for the institution of corporate boards or governance? Could we laud those good women and men who are trying to recognize and remedy the problems as they encounter them?  Could we put away the past, listen and learn from these and other "women in leadership"?

Forensic Accounting

What is forensic accounting?  “Forensic” comes from the Latin, forensis, which means “before the forum” or “in a public place.”  “Forensic” is defined as “belonging to courts of judication or to public discussion and debate, argumentation or rhetoric.”

Forensic accounting is that which has been arrived at using scientific means or processes sufficiently thorough and complete such that an accounting professional could deliver findings of a quality that could stand up in an adversarial legal proceeding.  It implies that the accounting evidence was obtained or detected using scientific methods and interpretation.  Even more specific, forensic accounting implies in-depth examination sufficient to discover deception or fraud.

In May of 2008, the American Institute of Certified Public Accountants (AICPA) introduced the professional credential, Certified in Financial Forensics (CFF) which is a merger of specialized forensic accounting expertise with the core knowledge and skills of a CPA.  The prerequisites for certification are three-fold:

Education:  60 hours of “lifelong learning” in the field every 3 years.
Profession: a valid, unrevoked CPA license, membership in the AICPA in good standing, 5 years professional experience in accounting and at least 100 application points (distributed among professional experience, knowledge, lifelong learning and forensic accounting credentials held).
Examination: after September 1, 2010, a 4 hour, 100% multiple choice exam, administered by the AICPA, will be required, covering:
            Professional Responsibilities and Practice Management
            Fundamental Forensic Knowledge
            Specialized Forensic Knowledge

Boards of directors will begin to look to CFF-certified accounting professionals as a higher value of professional credential to help directors and audit committees identify and mitigate financial, accounting and audit risks.

Friday, July 2, 2010

Molina Healthcare

Molina Healthcare is a good example of how the roles and responsibilities of a board evolve over time, depending upon where the company is in its lifecycle.  Long Beach, CA-based Molina provides managed healthcare to over 1.4 million individuals covered under Medicaid and similar programs located in nine states.

Dr. C. David Molina, in 1962, opened the first intensive care unit in Long Beach, at Pacific Hospital and later ran the emergency room there for more than 20 years. 

“[My] father was seeing patients in the ER who really didn't belong in the emergency room…. [he] saw an opportunity because other people didn't want to take Medicare patients,” said Dr. J. Mario Molina, son and current CEO of the firm.

Stage 1 began in1980 when Dr. Molina founded a small, local medical practice in the Long Beach, CA area.  He grew the family-owned business, slowly expanding to 3 clinics by relying upon family members as his management team (2 brothers and 3 sisters).

Stage 2 expansion took place in an era of financial turmoil.  Dr. Molina captured the economic benefits of an external problem when he took over leases for 9 clinics owned by Maxicare Health Plans Inc (Los Angeles, CA) which went bankrupt in March 1989 after a two year struggle to remain a viable HMO. In April 1991, the medical director at Molina died, and the father asked his son Joseph Mario Molina (graduate of USC Medical School) to take over as Chief Medical Officer the following year.

The state of California decided to no longer contract directly with medical groups serving patients under Medi-Cal (the state reimbursement program); instead deciding to contract with HMOs that had a minimum of $1 million in reserves.  Molina became licensed as a California HMO contractor in 1994.  Another requirement of the California Dept. of Corporations was that the company add a majority of independent directors to its board. John Molina (J.D. from University of Southern California) became the CFO in 1994.

Stage 3 was characterized by external expansion through acquisitions into new states. Dr. Molina Sr. died in 1996, by which time the company had become the second largest Medi-Cal HMO in the state. The family founder and decision-maker was replaced by a team of experts who helped guide the firm through acquisitions of Medicare clinics in Utah, Washington State, and Michigan.  

Stage 4 began in 2002 as the company pursued external capital, going public in June 2003 with an IPO worth $115 million (6.6 million shares at $17.50 each).  At that time, Molina had 511,000 members; three years later, they had over a million members.  Current market cap is $774 M with shares selling at $30.00 each. One sister, Dr. M. Martha Bernadett, became vice president for research and development in 2002. (She earned her M.D. from the University of California, Irvine and an M.B.A. from Pepperdine University.)

The current Stage 5, aggressive long-term growth, phase began in September 2005 when Molina expanded south into the San Diego area by taking over the 71,000 membership of Sharp HealthCare's Medi-Cal program. In February 2010, Molina moved into five more states: Idaho, Louisiana, Maine, New Jersey, and West Virginia through a take over of Unisys Corporation’s Health Information Management (HIM) business.

The future growth envisions running Medicare programs under state contracts producing $135 million in cash.  Under the Obama administration’s health plan, between 15 to 19 million new patients will be added to Medicaid and Medicare rolls, with the potential to increase Molina’s customer base by up to one-fourth.

At each stage, the company faced a new set of unique board challenges, while the board itself needed different skills, wisdom, and leadership.  Governance experts often say that “one board solution does not fit companies of all sizes.” They also mean that there can never be one governance solution that will be appropriate for a given company throughout all of its growth and lifecycle. Molina Healthcare clearly is a case study that demonstrates those lessons.

See: LA Times, May 23, 2010, "How I Made It: J. Mario Molina and John Molina"  by Nathan Olivarez-Giles and Darrell Satzman and Outstanding in their Field: How Women Corporate Directors Succeed, (Praeger: 2009) by Elizabeth Ghaffari

Thursday, July 1, 2010


The other night, we had the opportunity to hear the co-authors of the very recently published book, Blind Spots, Biases, and Other Pathologies in the Boardroom, discuss their research and conclusions at a dinner hosted by the Southern California National Association of Corporate Directors. See (Expert Press; First edition, June 24, 2010).

Kenneth Merchant is an expert in management accounting and control systems, currently holding the Deloitte & Touche LLP Chair of Accountancy at the University of Southern California’s Marshall School of Business. (See his website.)

Katharina Pick is a visiting professor specializing in organizational behavior, small groups and teams, organizational theory, leadership, boards of directors/corporate governance, power and influence at the Drucker/Ito Graduate School of Management, Claremont Graduate University. (Her her bio.)

This most interesting blend combined an accounting guru and an organizational behaviorist demonstrating the new definition and power of diversity arising out of the tumult in the boardroom. Professor Merchant represents the “white hairs of experience” – one who has seen decades of change in the boardroom as a financial advisor to directors and C-suite executives. Professor Pick represents the “next generation” of researchers bringing new understanding of inter-human relationships to boardroom dynamics. The two collaborated in research, in writing their book, and now by fostering the essential extended debate in roundtables where old and new directors struggle with these very same challenges in their boardrooms.

Both of the presenters recognized that a “sea change” has taken place inside U.S. boardrooms over the past decade. Very few people among those who have actually studied corporate governance would argue otherwise. First, it is amazing to see one man and one woman join together and deliver a well-reasoned presentation on this highly volatile subject: boardroom dynamics, inter-personal inter-communications within the power center of corporate America. Second, it is refreshing to hear their ideas about how to recognize natural tendencies toward behaviors that could undermine effective performance and how to minimize their adverse impacts.

Such events do more than simply present the technical content of research, as good as this was. The discussion from the audience was as insightful and interesting, if not more -- revealing how intently today’s directors are searching for answers to old problems they have seen and experienced. Directors and professionals in the audience shared insights into “social loafing” or “shirking,” the challenge of the Imperial CEO and how some directors undermine their own credibility, among many other interesting points. (The audience was 20.6% women – you know I always count!) Watching directors participate in this intense self-examination, observing how they challenge each other and share insights, respectfully, is the opportunity of a lifetime.

The book and the discussion reveal that remedies for poor governance must go beyond simple external indicators of “best practices” – board size, composition, and so forth. We also must understand the behavior of people in small groups: how humans function and interact, how the dynamics of collective action or inaction contribute to success or failure in the boardroom, and how effective leaders can guide people to their best behaviors or lead them to self-destruct.

Both Professors said that we probably should expect to be able to only minimize these “pathologies in the boardroom.” We are not likely to change fundamental human behavior. Nevertheless, understanding the foundation of group behaviors and simply recognizing when they rear their ugly heads can go a long way toward re-asserting control over the worst forms of “groupthink” in the boardroom.

In talking with one of the speakers, we shared a mutual interest in other authors who have specialized in the “groupthink” field. For those interested in further research:

George Orwell wrote 1984 (in 1949) using literary symbolism to describe many aspects of socially-enforced “groupthink.” “Newspeak” was the politically acceptable language that would replace English. “Thought crimes” were violations of political correctness, enforced by the “thought police.” “Big Brother” was the single source of correct thought. “Tele-screens” were ubiquitous monitors that broadcast correct groupthink (while also monitoring and spying on members of society). “Doublethink” was the ability to maintain two contradictory ideas in one’s mind simultaneously, without any interest in the divergence.

Ray Bradbury followed with a short story, The Fireman (1951) which he turned into Farenheit 451 (1953) describing book-burning as a part of a strategy to enforce conformity and mind-control or political correctness.

William H. White wrote about “Groupthink” in a Fortune magazine article by the same name (March 1952), describing it as,

“a rationalized conformity. . . an open, articulate philosophy which holds group values are not only expedient but right and good as well.”

White was describing The Organization Man (which he wrote in 1956) about corporate conformists who “believed in the essential rightness of large groups – and the essential wrongness of the individual.”

Irving Lester Janis (1972) elaborated on the psychological underpinnings of “groupthink,” based on his research into foreign-policy decision-making. He described “groupthink” as a situation where,

“the members striving for unanimity override their motivation to realistically appraise alternative courses of action.”

Back in those days, they were worried about the Soviet Union, totalitarianism and communism – the foreign threat of groupthink. In more recent times, it appears as if the disease spread. Was there “groupthink” in the speculation surrounding subprime lending, "liar loans" securitization, hedging, derivatives and credit default swaps? Is there “groupthink” in our rampant use of social media: FaceBook, LinkedIn and Twitter? Finally, are white haired men the only ones who exhibit “groupthink” in their gatherings or might it also be possible that women also exhibit “groupthink” in their social, advocacy, and business gatherings?