Archive for the ‘sarbanes’ Category

Whistle Blowers Lament

February 5, 2010

Jim Palmer (not his real name) worked at New Group Bank (not their real name).  He worked in the Real Estate department and was an expert appraiser and compliance officer.  He was a regular Joe who came to work and did his job faithfully and honestly.

Then in 2006, he noticed something was wrong.  There seemed to be an “old boy” network of mortgage brokers, realtors and bankers who were playing fast and loose with loan applications and Real Estate appraisals.  So being the faithful employee, he attempted to raise the alarm that maybe, just maybe some of the loans being booked really weren’t underwritten well and that if there was a downturn in the economy, the bank may sustain losses.

 But his counsel was rejected.  

So Jim had a dilemma.  Keep quiet and his own job might be in jeopardy because once the loans started to go bad, the bank would  1) look for scapegoats in the RE department and/or 2) implode and potentially go out of business. Both alternatives seemed to Jim to be bad choices.   His decision was not an easy one.

After significant soul searching, he determined he only had one alternative; he had to blow the whistle to the regulators;  the FDIC and the SEC.  But like all government entities, they react slowly or sometimes not at all (i.e. Bernie Madoff). 

As a result of the report to the regulators, Jim was identified and was subsequently fired for blowing the whistle.  There are even internal memos calling him a whistle blower and discussing how they could fire him without giving him the protection of whistle blower laws.

You have all heard that there is protection for Whistle Blowers.  But as with all things pertaining to the government and the legal system, the response is extremely slow.  Whistle Blowers can go bankrupt or die before their cases are heard, if at all. In fact, a majority of Whistle Blowers never gain any type of protection.

 The laws are vague at best as to what a Whistle Blower really is. Just by making a report doesn’t make you a Whistle Blower.  To be deemed a Whistle Blower, you have to have suffered some retaliation.  To determine whether a firing was retaliation, you have to go through certain legal steps, which again takes time, too much time in the opinion of those who have been involved.

But Jim has been vindicated to a certain extent. When the RE bubble burst, the loans that he had warned them about went bad. The Bank holding company is in bankruptcy and senior management has been fired or “retired”.  The SEC and FDIC now see the truth in what Jim told.  There is a class action lawsuit going on and the regulators are probably going to file criminal complaints against senior management in the near future. 

But at what cost?  It would have been simpler and easier if management had really listened, but they had bet heavily on RE loans and their futures were at stake.  And certain related companies (through management) were profiting when a loan went bad.

Here are some things that must be considered for Whistle Blowers:

1)      If at all possible, employees need the ability to report anonymously.

2)      The regulators need to really listen when a Whistle Blower comes forward and offer REAL protection so their livelihood is protected.  They need the ability to force companies to keep Whistle Blowers on the payroll until all proceedings are complete.  Right now there are not incentives for companies to resolve issues quickly. 

3)      Whistle Blowers should be able to receive their salary during the period the case is being reviewed. Currently the company has no incentive to bring the action to a conclusion, so they stall and delay hoping the Whistle Blower either gives up, runs out of money or dies.

4)      Whistle Blowers need to also be compensated for the data they provide the regulators.  In many cases, the information provided by the Whistle Blower would have taken the regulators hundreds of hours to put together. The Whistle Blower should be rewarded.

5)      The regulators need a Whistle Blower advocate within the government that has real power to move issues along and force settlements.

Companies have to do the following:

1)      Provide a confidential reporting mechanism like www.MyWhistle.com which reports issues directly to the Board of Directors.

2)      Truly independent board members must be heavily involved in the complaint process.

3)      The internal audit department must be independent from management and report directly to the Board.

4)      External auditors should be given a copy of all reports from MyWhistle.com.

5)      All Board members must be truly able to be active members, family and friends are typically not experienced enough or able to act independently.

What say you?

Want to complain to the government about the treatment of Whistle Blowers, go to http://fcic.gov/

Should the CFO report to the CEO or the Board of Directors?

January 18, 2010

This is a discussion I recently started on LinkedIn. The basis of this question is that when the CFO reports to the CEO, their continued employment often hinges on telling the CEO “the right thing” when it comes to ideas the CEO has.  This conflict of interest is especially serious in a public company where the CFO can literally go to jail for producing false financial statements.

The responses to my question were very interesting. They ranged from: “The CFO just needs to do their job. If they lose their job, so be it” to “I agree as I have lost my CFO job in the past for refusing to do something the CEO wanted to do”.

I also asked the question as to whether a CFO should have some type of severance contract clause that would protect them financially if they refuse to do something the CEO wanted to do, and subsequently lose their job.

What do you think?

Fraud in Healthcare

January 16, 2010

It is estimated that $51 billion each year is lost in fraud in the healthcare industry.  Someone knows something, the challenge is getting them to tell you about it.

They have to have a way to report on a confidential basis.

Fraud at the Koss Corp

January 15, 2010

Milwaukee-based Koss Corp. said on Monday that a vice president of finance had been put on administrative leave. The NASDAQ exchange also halted trading of shares of Koss stock after unauthorized transactions were discovered.

Wondering if MyWhistle.com could have helped identify this earlier?

Confidential Incident Reporting

January 15, 2010

How would you let a company know about something that is on your mind?  Report illegal activity, a complaint, a suggestion or even a compliment….. 

Are you an employee, vendor, customer, investor, or observer with something to say?

www.MyWhistle.com is the answer.  …..MyWhistle.com is the way to contact any company in the world, and get your comment heard.

Try it.  It’s free.