PHILADELPHIA-It doesn't take a risk-averse general counsel to stay away from betting on how financial reform regulation will unfold, but that doesn't mean all eyes aren't on what might be coming down the pike.
The general consensus of a panel discussion last week led by former US Securities and Exchange Commission Chief Accountant Lynn Turner was that few of the current proposals out there in response to the economic collapse will actually pass — and those that do won't have a huge impact on a majority of companies.
According to Turner, now of accounting firm LECG, and fellow panelists Ballard Spahr partner Henry Hockeimer Jr. and Safeguard Scientifics General Counsel Brian Sisko, the regulations that could have stopped the financial meltdown before it started were already in place. It was the enforcement that was lacking, they said.
"I'm not sure we need all these regulations people are talking about if you just enforce these existing regulations," Turner said. "My preference is very tough enforcement and less regulation."
Even Turner, a Democrat who served under the Clinton administration, has his doubts about how tough the new players appointed by the Obama administration will be when it comes to enforcement.
Many of the companies that collapsed had virtually no risk-management functions and the SEC has just now created the Office of Risk, Strategy and Financial Innovation. The office will be led by Henry Hu, a law professor from the University of Texas at Austin. Turner skeptically pointed out that Hu doesn't have even one day of experience working on Wall Street or managing the risk function of a business.
Turner said he can easily see legislation on "say on pay" passing. It's a customary practice in European businesses, and many U.S. companies, like Safeguard, are already open about executive compensation, Sisko said.
Right up there with executive compensation is the near guarantee that regulations on hedge funds will be passed, Turner said. Labor unions tend to dislike hedge funds, and the unions have a lot of say on the Hill, he said.
As to proxy access, something Turner said investors should have to begin with, he doesn't see rules in that area going very far. SEC Chairwoman Mary Schapiro has said she would enact new rules regarding equal access to proxy statements, but Turner said there is a U.S. Supreme Court ruling prohibiting the SEC from issuing rules on corporate governance. He said that has typically been done by the stock exchanges. Turner said the U.S. Chamber of Commerce has said it would sue the SEC as soon as such rules were enacted.
Turner said he also sees a role for states to step in on enforcement under laws, such as New York's Martin Act, considering federal authorities, including the SEC, haven't done so. He pointed to a legal dispute between Bank of America and New York Attorney General Andrew Cuomo as an example. When the SEC decided not to find any wrongdoing with the way BofA handled bonuses, Cuomo stepped in, Turner said.
"Mary Schapiro, who is supposed to be toughening up on enforcement, quite frankly doesn't look like she is," Turner said.
Many of the other proposals issued by President Obama, in terms of creating new financial and consumer regulating bodies and doing away with others, face either opposition from big business and Wall Street or certain members of Congress. Those, and tougher ones proposed by Democratic Rhode Island Sen. Jack Reed, are already being watered down by proposals from Congress and the SEC, Turner said. Reed, for example, wants to give investors a private right of action to sue credit-rating agencies that knowingly put out inaccurate ratings, Turner said.
But with U.S. ownership in a number of industries, politics are going to run these companies, as well as the regulatory reforms.
"When you mix U.S. politics and business, that is an ugly tasting dish," Turner said.
Obama used so many chips on health care, Turner said, that he might not have many left to fight the opposition to his financial regulatory reform proposals.
Hockeimer said his clients' feelings on the current enforcement environment depend on the regulator at issue. He is seeing a rise in cases involving the Foreign Corrupt Practices Act, but doesn't know whether that has anything to do with the economy. He said the story of the financial meltdown and mortgage cases hasn't been told yet.
Hockeimer said he thinks the existing tools in place are enough to get the job done in terms of enforcement. All of this talk about new regulations and standards is just "political window-dressing," he said.
While they certainly can't take all the blame, Turner said the accounting standards "played a very significant role here." He said he was amazed that after Enron and WorldCom, the Financial Accounting Standards Board didn't do more to fix the problem of off-balance sheet assets and transparency rules.
Turner said he would throw out international and U.S. GAAP rules and start from scratch. He said they haven't been getting the job done for the last seven decades they've been in place.Phila. Companies Without Voice
For the average Philadelphia company like Safeguard, Sisko and Hockeimer said, many of these proposed regulations sound eerily familiar to Sarbanes-Oxley legislation, which they said was sometimes viewed as being designed to regulate the largest of companies but placed time and financial burdens on the smaller ones. Sisko said his company is already doing much of what is proposed on the corporate governance end because it just makes good business sense.
He said the harsh reality is that views of companies like his don't count because they aren't large enough to hire a lobbyist or put together comment letters for SEC proposals.
His job, Sisko said, is not just as a general counsel, but as one of the five executives focused on keeping Safeguard and its stock price moving in the right direction.
At a company of Safeguard's size, Sisko is the risk manager even though he doesn't have the title. He said he could create a risk committee of the board, but it wouldn't change how he operates and would just cost more. He said his approach has always been to err on the side of disclosure.
Safeguard, based in Wayne, Pa., provides capital, as well as a range of strategic, operational and management resources, to its partner companies, and had annual revenue of about $73.74 million for fiscal year 2008. The company has roughly 930 employees.
"If it's worth discussing, it's worth disclosing," he said.
Many of the proposed regulations, he said, don't produce the same benefits for companies of Safeguard's size as they do for larger corporations. While Safeguard is already at the fore of many of these corporate governance issues, Sisko said he takes issue with some of these proposals and isn't so sure U.S. companies should be following Europe's lead. And because votes on executive compensation have never gone against the executive, he isn't sure what these new regulations would do other than just create more work.
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