Category Archives: Regulatory Risk

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Bribery and Corruption: What’s the best approach?

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On Feb. 17, Samsung empire’s heir Lee Jae-yong was arrested on corruption and bribery charges connected to a nationwide political scandal in South Korea. While this is unlikely to directly impact the global tech behemoth in day-to-day matters, it is important to investigate how firms and governments can work together more successfully to combat white collar crime and corruption.

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An international affair
The fight against bribery and corruption has historically been led by the United States, the first country to implement tough legislation with the Foreign Corrupt Practices Act of 1977. The federal law was enacted to address accounting transparency requirements and to make bribery of foreign government officials illegal.

Europe is not far behind with a range of legislation designed to prosecute and punish corporate crime. Other emerging market governments are finally cracking down as well, holding both domestic and foreign businesses and their senior management, to account.

Tackling bribery and corruption requires prosecutors and regulators that are properly equipped to investigate and deal with complex factual and legal issues. It also requires a judiciary that is impartial and can operate without political interference.

The United Kingdom’s Bribery Act of 2010 is a good example of tough new legislation that regulators and prosecutors can rely upon when investigating such crimes. It has extra-territorial reach both for U.

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K. companies operating abroad and for overseas companies with a presence in the U.K. It also introduced a new strict liability offence for companies and partnerships of failing to prevent bribery.

The law is not enough
Unfortunately however, even the best legal framework in the world is insufficient on its own.

Companies need to understand exactly how to go about preventing unlawful behavior, particularly in new and distant markets that their headquarters may not clearly understand. Ultimately, the real responsibility and accountability remains with the business to ensure compliance.

Countries with robust criminal and anti-corruption laws might be able to prosecute those individuals or businesses that commit offences within or outside the jurisdiction but the problem will continue until international businesses rigorously apply universal global standards to tackle corruption across emerging markets.

It’s Still about the culture
In short, this issue is about corporate culture. The following are fundamental steps for fine-tuning your organization’s approach to corruption:

• Develop a culture through education, where turning a blind eye to unlawful activity is not an option. Staff should feel comfortable with speaking out if they see anything potentially suspicious. Anti-bribery and corruption training needs to be repeated and made relevant to the day-to-day scenarios employees at different levels might face.

• The tone must be set at the top. For instance it can be useful to educate your firm’s directors with formal governance training, such as from the Institute of Directors (IoD) in London.

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This level of top-level attention to corporate compliance programs, including training, should be the norm.

• Proper dialogue needs to be established with regulators—not just a one-way stream of new laws and compliance requirements. A regulator should seek the views of those it is regulating.
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This two-way approach really does work.

Greenberg, New York State Settle Long-Running Civil Case

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One of Wall Street’s longest-running dramas closed Feb. 10 as New York State and Maurice “Hank” Greenberg finally ended a legal clash which began in 2005 under the stewardship of then Attorney General Elliot Spitzer.

Former American International Group, Inc. CEO Greenberg and the Attorney General’s office reached a settlement over accusations that the company engaged in fraudulent transactions to boost reserves and hide losses.

Greenberg, who was chairman and CEO of AIG from 1967 until his ouster in 2005 and now serves as chairman and CEO of C.V. Starr & Co., will pay some $9 million to end his role in the saga. Also, Howard Smith, former AIG CFO and Greenberg’s lieutenant will pay $900,000 to settle the charges stemming from two alleged transactions designed to misrepresent company finances.

This included a $500 million deal in the year 2000 with reinsurer General Re, part of businessman Warren Buffet’s Berkshire Hathaway Inc., to pad AIG’s loss reserves. Greenberg allegedly initiated the Gen Re deal with a call to the company’s CEO.

The two former AIG leaders were also said to be involved in a deal with Capco Reinsurance Co., which masked a $210 million underwriting loss as an investment loss.

The sums paid by the men are related to performance bonuses earned from 2001 to 2004, according to New York Attorney General Eric Schneiderman, who inherited the long-running conflict. Schneiderman sought to ban the men from the securities industry and from serving as directors and officers of public companies as part of the settlement, which ultimately did not include these provisions.

Schneiderman had previously dropped a $6 billion damage claim against Greenberg and others, once a class action settlement was approved in 2013 under which Greenberg paid $115 million to AIG shareholders.

A 2009 settlement with the U.S. Securities and Exchange Commission over charges related to AIG‘s accounting saw Greenberg pay $15 million and Smith $1.5 million to the agency.

Late last year Greenberg and the Attorney General’s office turned to mediation after trial testimony had already begun in state court. The mediation, which ultimately produced the settlement, was run by alternative dispute resolution specialist Kenneth Feinberg.

The finale to the case was perhaps more of a whimper than a bang, with settlements hardly headline-grabbing and no one admitting to much more than accounting slips.

In a press release from the N.Y. State Attorney General’s Office, Schneiderman sounded a triumphant tone. “Today’s agreement settles the indisputable fact that Mr. Greenberg has denied for 12 years: that Mr. Greenberg orchestrated two transactions that fundamentally misrepresented AIG’s finances,” Schneiderman said in the statement. “After over a decade of delays, deflections, and denials by Mr. Greenberg, we are pleased that Mr. Greenberg has finally admitted to his role in these fraudulent transactions and will personally pay $9 million to the State of New York.”

Greenberg, who was unapologetic, in his statement said, “The Gen Re transaction was done for the purpose of increasing AIG’s loss reserves, and the Capco transaction was done for the purpose of converting underwriting losses into investment losses. I knew these facts at the time that I initiated, participated in and approved these two transactions…As a result of these transactions, AIG’s publicly-filed consolidated financial statements inaccurately portrayed the accounting, and thus the financial condition and performance for AIG’s loss reserves and underwriting income.”

The pundits had their say as well, split as to what it all meant.

“The taxpayers of New York State should be furious,” said the Wall Street Journal’s Paul Gigot, editorial page editor. “The $9 million fine amounts to pin money for Mr. Greenberg…It won’t come close to covering the state’s costs for pursuing the case over so many years…The real lessons of the Greenberg case start with the absurd lengths that progressive prosecutors will go to punish capitalists they don’t like,” Gigot said.

Mr. Greenberg’s lawyer David Bois called the deal with the Attorney General a “nuisance settlement,” according to the New York Times.

Others were less forgiving of Mr. Greenberg. “Just because he hasn’t pled guilty to fraud doesn’t mean he’s been vindicated,” David Schiff, a former insurance analyst who followed AIG, told the Times.

Weighing In on Stand-Up Workstations and Exercise Balls

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Stand-up workstations and exercise balls used for sitting in place of an office chair are gaining popularity.

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This has been fueled by reports of workers at Google, Facebook and other companies trading in their chairs to stand, or bounce, while working. They cite studies of the harm that hours of sitting can do.

Even here at the RIMS office several employees prefer sitting (or bouncing) on exercise balls to the familiar rolling desk chair, or working at a stand-up desk. Risk professionals have long been discussing the merits and downsides of these two popular choices.

But are these alternative ergonomic preferences really that beneficial?

Recently in an online discussion, some members of the RIMS Opis community said they were not in favor of exercise balls as ergonomic solutions. A risk manager in Oregon stated it bluntly: “Exercise balls should be limited to fitness programs.

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Your [workers comp] will own the injury if an employee slips off the ball and hits [his or her] head or has a soft tissue injury from the fall.” Several other commenters agreed that the balls are unstable and their use is discouraged or officially prohibited.

A CEO said: “While great for encouraging engagement of your core muscles during exercise, [balls] are not good for sitting at a workstation and in fact, research shows, increase your risk of ergonomic injury.”

In fact, some research has found their benefits negligible. A study of 28 subjects found that exercise or chair balls offer no advantages over a traditional workplace chair. According to a study by BioMed Central:

Results:

The results showed no significant difference with regard to spinal curvature between seating types. Initial sitting curvature was found to increase significantly over 30 minutes in both the desk chair and stability ball. In addition the results of the usability questionnaire showed a significant difference in three of the eight questions, in favor of the desk chair.

Conclusion:

No benefits were found through sitting on a stability ball over that of a desk chair in prolonged sitting as both seating types were found to replicate a poor sitting position through a kyphosed [outwardly curved spine] and slumped posture. The clinical implications of this study serve to benefit any healthcare professional considering use of the stability ball as a replacement desk chair.

In another online comment, a Missouri risk manager suggested a compromise, elaborating that while his organization allows their use, “They cannot be free-standing balls… they must be part of a chair ball with wheels and a seat backing.”

Stand-up desks received more positive feedback. Several risk professionals cited research equating excessive sitting and sedentary lifestyles with serious chronic health problems. A number of commenters shared anecdotes about how stand-up workstations have helped employee health issues. Several users noted that in their newly renovated, or soon-to-be-renovated, offices, stand-up workstations are de rigueur.

Who pays for these workstations? Most who commented said, or implied, that their companies foot the bill for stand-up desks if an employee requests them. Most seem willing to make the investment based on reports that providing ergonomic options can reduce workers comp claims.

Not all are sold on the benefits, however. A commenter from Chicago said, “As odd as it sounds, stand-up desks may not be wholly safe…. People get tired and fall down using them. And there is no confirmation standing is less stressful than sitting. Folks very quickly started to complain of sore hips, knees, feet and spines.”

A Virginia risk manager shared the wisdom of moderation and the middle ground, saying, “While sitting is bad—and the motive for getting a standing desk—standing all day can cause myriad lower back, leg and feet issues. It would be similar to what risk managers at grocery stores have to deal with their cashiers on their feet all day. Interspersing standing with sitting is key.”

Some researchers agree with this conclusion. A New York Times article reported that 15 minutes per hour at a standing workstation is recommended over standing all day.

Can ORSA Work For All Businesses?

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In addition to impacting the way countless organizations conduct business, the 2008 financial crisis was an awakening for regulators charged with reviewing and setting the rules that shape the way organizations assume risk. Insurance, perhaps the riskiest business of them all, did not go unscathed.

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Not only are insurers responsible for managing their own internal risks, but careful calculations and guidelines are built into their business models to ensure that the risks fall within set parameters.

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Regulators will argue, however, that this wasn’t always the case.

Own Risk Solvency Assessment (ORSA) was adopted and now serves as an internal process for insurers to assess their risk management processes and make sure that, under severe scenarios, they remains solvent.

U.S. insurers required to perform an ORSA must file a confidential summary report with their lead state’s department of insurance.  The assessment aims to demonstrate and document the insurer’s ability to:

  • Withstand financial and economic stress with a quantitative and qualitative assessment of exposures
  • Effectively apply enterprise risk management (ERM) to support decisions
  • Provide insights and assurance to external stakeholders

While ORSA is requirement for insurers, a new study by RIMS and the Property Casualty Insurers Association, Communicating the Value of Enterprise Risk Management: The Benefits of Developing an Own Risk and Solvency Assessment Report, maintains that ORSA can be used for all organizations looking to strengthen their ERM function.

According to the report:

Whether or not required by regulation or standard-setting bodies, documenting the following internal practices is a worthwhile endeavor for any company in any sector to utilize in their goal to preserve and create value:

  • Enterprise risk management capabilities

  • A solid understanding of the risks that can occur at catastrophic levels related to the chosen strategy

  • Validation that the entity has adequately considered such risks and has plans in place to address those risks and remain viable.

The connection between the ORSA regulation imposed on insurers and the development of an ERM program within an organization outside of the insurance industry is apparent.

ORSA and ERM both require the organization to strengthen communication between business functions. Breaking down those silos are key to uncovering business risk, but perhaps more importantly, is the interconnectedness of those risks.

Secondly, similar to ERM in non-insurance companies, ORSA requires risk management to document its findings, processes and strategies. Such documentation allows for the process of managing risks to be effectively communicated to operations, senior leadership, regulators and stakeholders. Additionally, documentation enhances monitoring efforts, the ability to make changes to the program and is a benefit that allows ERM to reach a “repeatable” maturity level as defined by the RIMS Risk Maturity Model.

Developing an ERM program has become a priority for many organizations as senior leaders recognize the value of having their entire organization thinking, talking and incorporating risk management into their work. Examining and implementing ORSA strategies can be an effective way for risk professionals to get their ERM program off the ground and operational.

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