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Are you thinking defensively? Consider these five worries triggered by the post-Enron environment, and find out how some finance executives are dealing with them.
Alix Stuart, CFO Magazine
September 1, 2002
So you've worked hard, made the right connections, and risen through the ranks to become a finance chief. Congratulations. The only thing left to do is make sure you have a good lawyer.
The passage of the Sarbanes-Oxley Act, together with the culture of suspicion that is thriving in America, increases the time CFOs will be spending under the microscope--and potentially under lock and key as well--if fraud is detected.
Progress Software Corp. CFO Bud Robertson doesn't like legislators using corporate finance as a whipping boy. "I think they've gone completely overboard in trying to fine-tune every possible behavior," he says. He envisions a world where he'd have to "put up my own money just so that anyone can sue me." And if it gets that bad, he adds, "I might reconsider my profession."
He's not the only one recalculating the costs of being a CFO. Below are five worries triggered by the post-Enron environment, and how some finance executives are dealing with them.
1. Your Autograph May Be A Liability
CEOs and CFOs who "knowingly" sign financial statements that fail to meet requirements may be fined up to $1 million and sent to jail for 10 years. Signing such documents "willfully" exposes executives to $5 million in fines and 20 years, according to the corporate-governance law.
What's the distinction between knowingly and willfully? "I think every law firm in the country is debating what it means," says Walter Brown, a former federal prosecutor and now an attorney with Gray Cary. "But you can see there's clear criminal exposure for CFOs."
If there's a financial restatement "due to the material noncompliance of the
issuer, as a result of misconduct," moreover, CFOs and CEOs will have to forfeit any share of gains and bonuses they might have reaped within a year of filing the erroneous financials. The big fear here is that "on its face, it does not require that the CFO has to know of the [mis]conduct" in order to be punished, says Brown, creating more liability around frauds that might not be immediately detectable.
2. Personal Assets Are More Intangible
The legislation didn't officially ban executive share-trading, except during 401(k) plan blackout periods. But advisers say that many firms are considering new ways to clamp down, nonetheless. And that's just the start.
"We're seeing more attention paid to the notion...that officers should not be trading in stocks or even exercising their options while still employed at the company," says Joel Papernik, a New York attorney with Mintz Levin Cohn Ferris Glovsky & Popeo PC. General Electric Co., for example, said in July that it would require senior officers to purchase company stock with their option gains and hold that stock for one year.
While most companies are still mulling what, if any, requirements to change, experts expect longer vesting periods and shorter trading windows to become the norm. Other nonqualified long-term benefits, such as supplemental executive retirement plans, may well be at risk. Even home equity may become less of a safe haven, because of a pending federal bill that would supercede current laws in such states as Florida and Texas. The new law would set a federal cap on the home-equity amounts that bankrupt law violators could shelter from creditors.
3. D&O Is Harder To Get
With each financial restatement now considered a potential crime, directors' and officers' liability insurance carriers have a new way to wriggle out of coverage. That's because "every D&O policy contains an exclusion for criminal acts," says Gordon Davenport, a partner at Foley & Lardner. Even if the feds back away, a shareholder's civil suit alleging improper certification of a financial report could leave the CFO and CEO vulnerable to losing coverage of their legal defense costs and liability, he says. And without a severability clause, this could trigger other officers and directors losing coverage, as well.
Financial restatements are already being excluded from coverage by at least one major carrier, National Union Fire Insurance Co., an American International Group member company. "There are companies whose financials are very difficult to understand, and the insurance market is not making insurance available to them at prices or quantities they feel they can afford," says National Union COO Greg Flood, noting that premiums are up an average 175 percent, and up to 400 percent in industries like telecom. "This is one of the few ways we can imagine to take risk on those types of companies."
As former Sunbeam Corp. CEO Albert Dunlap and former CFO Russell Kersh discovered this year, executives sometimes have to pay out of their own pockets. Dunlap agreed to pay $15 million and Kersh $250,000 to Sunbeam shareholders, even though their D&O carriers agreed to pay them about $15 million. "Unfortunately, it is becoming more common for individual officers to have to contribute," says Davenport, "and with this new law, I think it may become even more common."
4. Job-Hopping Is Dicier
Getting the inside scoop on a new job opportunity, never an easy process, has become a lot tougher now that people suspect the information from analysts and in financial reports may not be trustworthy.
Extra homework by candidates, including interviews with internal sources from junior finance staff to heads of key operating units, is prolonging CFO searches by up to three weeks, says executive recruiter Richard Dowd of Dowd Associates. Of the candidates his firm is talking to right now, he observes, "I don't want to say they're scared, but they don't want to get it wrong. It's a learning experience. Everyone says, 'I should have done this 10 years ago.'"
5. Guilt By Association
If you've had to explain to the neighbors lately that you don't capitalize expenses the same way Scott Sullivan did, well, that might seem like the limit. But now, with CFOs singled out by the Sarbanes-Oxley Act to sign ethics codes, you might start taking this personally. Don't. "I think it's reflective of the publicity given to misconduct by people in finance and accounting--that's where the scandals have been," says attorney David Cifrino of McDermott, Will & Emery.
How to shake the stigma? Stay close to those you believe in. "Times like these," notes Tickets.com CFO Eric Bauer, "make having trust and confidence in the people around you even more important."
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