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Compliance in 2018: Q&A with James Reese of the SEC

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The Securities and Exchange Commission (SEC) recently named James Reese as the Chief Risk and Strategy Officer for the Office of Compliance Inspections and Examinations (OCIE), which also leads the Office of Risk and Strategy (ORS). These offices assess companies’ and products’ risk to the financial markets and influence the SEC’s rule-making initiatives, among other actions. OCIE conducts the SEC’s National Exam Program (NEP), which was created to protect investors, ensure market integrity and support responsible capital formation through risk-focused strategies that:

  • improve compliance
  • prevent fraud
  • monitor risk
  • inform policy

Risk Management Monitor reached out to Reese to find out what he has in store for his office and U.S. businesses.

Risk Management Monitor: Your office administers the NEP to businesses to ensure they are operating in compliance with the law and the SEC rules. Can you describe the information you gather and how it is used?

James Reese: During examinations, we may request and review policies and procedures, supervisory processes, trading activity or any other aspect of a registrant’s business. The results of the NEP’s examinations are used by the SEC to inform rule-making initiatives, identify and monitor risks, improve industry practices and pursue misconduct. The NEP maintains a critical presence among market participants by conducting thousands of exams annually. This provides us with timely, accurate, and reliable information to assist the program and SEC in fulfilling its mission.

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RMM: You had been OCIE’s acting chief since shortly after its inception. How has the office grown and what is your vision for the next five to 10 years?

JR: Now that we have built synergies across groups, the focus is turning more toward enhancing our risk assessments, providing better support to exam teams, improving our technology and using big data.

Centralizing the staff has led to a more cohesive approach to risk assessment and more opportunities to collaborate and take advantage of cross-discipline problem-solving.

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It has also helped us prioritize those areas where we can make the greatest impact on the NEP, allowing not only our office to maximize its limited resources but in turn also allowing us to focus on how we can provide exam teams tools and data to maximize their resources.

Ultimately, our office’s goals are wide-ranging and include:

  • identifying risks to investors, particularly retail investors, and the markets
  • assisting the home and regional offices in identifying exam candidates
  • developing technology tools and quantitative approaches that exams teams can use to, for example, identify potentially problematic practices at firms and more quickly analyze trading activity
  • monitoring and examining some of the largest financial firms to understand the various market and their operational risks

RMM: What risks are you closely monitoring (or are most influential)?

JR: Since 2013, OCIE has annually published its examination priorities, which generally reflect certain practices, products and services that OCIE believes may present a heightened risk to investors and/or the integrity of the financial markets. In 2018, as in prior years, we have prioritized matters of importance to retail investors, including seniors and those saving for retirement. This translates to pursuing examinations of firms that provide products and services directly to retail investors and focusing on the disclosure and sales practices associated with higher risk products.

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We are also focusing on risks to market infrastructure, cybersecurity as well as firms’ anti-money laundering requirements.

RMM: How has a risk manager’s role (and/or its importance) changed since you began at the SEC in 1999?

JR: I have seen more firms identify individuals to either serve as a chief risk officer or build out their risk management function. As SEC Chairman Jay Clayton noted in his recent remarks at the Equity Market Structure Symposium: “One of the few certainties of trading markets is that they continually evolve. New technologies spur new market mechanisms, which, in turn, lead to new trading practices.”

Risk managers face an increasingly difficult task of identifying and triaging these changes, and also having to be proactive. Trying to look around corners, identify emerging issues and spot trends before they metastasize within an organization is the cornerstone of any good risk organization and ORS spends a great deal of time on those activities, as well.

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.

Wells Fargo: What Should Have Happened

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wells-fargo

When Wells Fargo fired 5,300 employees in September for inappropriate sales practices, then-CEO John Stumpf approached the scandal with an outdated playbook. In response to the $185 million in fines levied by regulators, he first denied any knowledge of the illegitimate accounts. Attempting to mitigate press fallout by distancing the company from a group of “bad eggs” acting independently is not the answer, however. Even if Stumpf had maintained this assertion of innocence, changes in the risk environment over the past few years demand a proactive approach.

Rather than simply deflecting responsibility in these situations, executives must be able to accomplish two things:

• Provide historical evidence of due diligence and risk management (if such a program was actually used)
• Demonstrate how the company is adjusting its policies and/or implementing new policies to ensure a similar incident doesn’t happen in the future

In 2010, the SEC’s Proxy Disclosure Enhancement (rule 33-9089) explicitly made boards of directors responsible for assessing and disclosing risk management effectiveness to shareholders. It mandates the use of risk monitoring systems to demonstrate that existing controls (mitigation activities) are effective. Under this rule, “not knowing” about an activity performed by employees is considered negligence.

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This is a crucial development; negligence carries the same penalty as fraud, but it does not require proof of intent. The Yates Memo (2015) gave the SEC ruling more “teeth” by requiring organizations to provide the Department of Justice with all the facts related to responsible individuals.

As a result, many companies have suffered significant penalties and frequently criminal charges, even though their executives were allegedly unaware of illicit activities. Consider the emissions scandal at Volkswagen and fines paid (to the SEC) by global health science company Nordion Inc. In both instances, deceptions were perpetrated by individuals below the executive level, but senior management’s inability to detect/prevent the incidents came back to bite them.

How to Prevent Risk Management Failures at Your Organization

John Stumpf’s approach should have started with an admission of Wells Fargo’s failure in risk management processes across the enterprise, followed by evidence that a more effective, formal enterprise risk management process is being implemented. For example, risk assessments must cascade from senior management down to the front lines and across all business silos. This ensures that the personnel most familiar with operational risks (and how to mitigate them) can keep the board informed.

In other words, instead of simply apologizing and attempting to provide restitution, Stumpf should have demonstrated that Wells Fargo is taking proactive risk management measures to protect its many stakeholders.

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It is the company’s duty to ensure that something like this never happens again.

The scandal is predictably following the same track as have previous failures in risk management: it starts with regulatory penalties, then leads to punitive damages, class action lawsuits, and finally, criminal charges and individual liability, depending on the particular case.

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The key to this pattern is the absence of adequate risk management, which means negligence under the new enterprise risk management laws, regulations and mandates passed since 2010.

The good news is that avoiding serious, long-term consequences is possible if proper actions are taken. For example, by providing a historical record of risk management practices, Morgan Stanley avoided regulatory penalties when an employee evaded existing internal controls. Other corporations that can provide evidence of an effective risk management program (risk assessments, internal controls that address risks, monitoring activities over these internal controls, and an electronic due-diligence trail) are largely exempt from punitive damages, class-action lawsuits, and possible jail time.

When implemented proactively, effective risk management systems have and will continue to prevent scandals, regulatory fines, litigation and imprisonment. For a more in-depth analysis of the Wells Fargo scandal, read the LogicManager blog post “The Walls Fargo Scandal is a Failure in Risk Management.”

Cultivating a Reporting Culture

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While many organizations view whistleblowers as disgruntled employees looking for revenge and monetary rewards from the SEC, this is generally not the case, according to a recent study.

According to “Embracing Whistleblowers: Understand the Real Risk and Cultivate a Culture of Reporting,” by The Network, whistleblowers most often turn to the U.S. Securities and Exchange Commission only after they have tried reporting internally, or if they are concerned about retaliation by their company. In fact, only 20% ever reported to someone outside their company.

Organizations can do much to protect themselves, while also looking after employees. Since the majority of employees go to the company first with their concerns, organizations have an opportunity to address issues before regulatory involvement.

According to the report:

The fact that whistleblowers may prefer to keep things in the company doesn’t mean they won’t turn to the government or media if they think it necessary. Sixty-five percent of surveyed employees would be willing to report externally, “if my company didn’t do anything with my internal report.” An even higher percentage would report externally, “if keeping quiet would cause possible harm to people” or “if it was a big enough crime.”

How can companies manage this risk? By encouraging a strong “reporting culture,” they can learn about, and take care of potential problems through quality hotline reporting programs, The Network said.

Hotline programs have been around for years, but are more important than ever in today’s regulatory and business environment. Compliance teams should stop thinking of hotlines as purely telephonic; they’ve grown to include mobile and Web-based reporting solutions that give employees and others a safe and reliable way to raise their concerns internally via whichever method is most comfortable for them. They also give the compliance team important insight into what is going on inside the company.