Actionable Information

Performance Secrets of Effective Boards

Wednesday, March 2, 2011

Directors are NOT Under Fire! Conduct alleged by SEC in recent cases against outside directors would not be tolerated by boards.

1. If one of your directors leaked material information to anyone in violation of your corporate governance guidelines and insider trading policies, wouldn't your board seek the director's resignation as well as disgorgement? That's the allegation in the SEC's proceeding against Mr. Rajat Gupta, former director of Goldman Sachs and Procter & Gamble (available here). This proceeding should generate no cause for alarm for responsible directors.

2. Wouldn't you ask for the resignations of the audit committee directors (at a minimum) if your audit committee failed to undertake any independent investigations or even ask questions when the committee became aware that (1) three different audit firms had resigned, (2) one law firm resigned after completing a report and then subsequently expressed reservations about the reliability of the information furnished to it by management, (3) an independent consultant was terminated in connection with an investigation it had been retained to undertake, (4) the CEO insisted on running all "independent investigations", (5) the various auditors had issued multiple material deficiency letters, one of which noted that the audit committee itself was a material weakness, (6) management forged the auditor's signature on a consent to the 10-K and filed it, (7) the CEO created a family-owned corporation located in the same plant as the issuer to do subcontract manufacturing for the issuer and engage in the horse breeding/racing business and, of course, without disclosing it until forced to so by auditors who discovered it, (8) the CEO terminated a controller who warned that the company was overvaluing its inventory, (9) the SEC had issued subpoenas and commenced an investigation, (10) the CEO spent $4.7 million in issuer funds to pay for luxury cars, jewelry, art, real estate, use of personal aircraft, prostitutes, horse training, clothing and accessories from Hermes and Luis Vuitton and more than $120,000 for iPods included in gift bags at his daughter's multi-million dollar bat mitzvah? These are the allegations in the SEC's proceedings against Jerome Krantz, Cary Chasin and Gary Nadelman -- former members of the Audit (and Compensation) Committees of DHB Industries, Inc (n/k/a Point Blank Solutions, Inc.). These proceedings (available here) should generate no cause for alarm on the part of responsible directors.

3. The allegations are, of course, merely allegations. Even if the allegations are ultimately shown to have been true, however, these lawsuits -- though interesting -- should not be viewed by ordinary, responsible directors as a source of concern.