Tag Archives: SEC

Gimme A Break!

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It almost seems a long time ago, but November and December had a great series of holidays that, for some, were leveraged into a week or two of time off. From the conversations that I have had with strangers in elevators, not a single person wished they could have just stayed in the office and worked. The only gripe was the weather (for those of us in the Northeast). Everyone needs time off to recharge and those who tell us otherwise are lying to themselves or to us.

However, for those bosses who don’t care about whether or not their workers are worn out, just as long as they show up, there is a reason to give time off that benefits them – security. You would not believe how many stories I have come across, of fraud perpetrated by employees who rarely took time off and , if they did, it was only ever for a couple of days at a time. The bosses loved them because they were so diligent and always there when anything was needed. It also turned out that these same employees were diligently stealing from their employers. because they were always in the office, they were able to make sure that people didn’t poke around in their work too much. Because they were always in, they were able to steer people away if anyone seemed to be getting close to discovering their scheme. Because they were always the face in the office, they were able to gain the trust of their employers. In this way, they were able to keep watch over their fraud schemes and keep them going on for a long time. I have lost count of the number of times I have heard about how shocked people were when a fraudster was exposed because of how diligent and ever-present that person was.

In theory, it is an admirable thing to have a worker who so loves coming into work that they won’t even take paid time off. However, when you think about it, why wouldn’t someone want to take time off that they are being paid to take? I don’t know about you but I do not have conversations where employees go on about how much they prefer being at work over spending time with loved ones, how much they love their daily commute and wouldn’t trade it for anything, or how they wish that weekends and days off would be abolished so they could spend more time at work. With this in mind, employees who do not want to take time off should be viewed with skepticism.

It is important that employers take advantage of the time off given, in order to perform fraud prevention and detection activities. This is mostly achieved by having another employee do the work of the vacationing employee. This is particularly important if the employee has a financial role or access to assets. A few examples of tasks that should be performed in an employee’s absence are:

  • reconciling the bank accounts;
  • receiving and opening mail, especially correspondence from banks and vendors
  • receiving and processing inventory;
  • disbursing checks.

Nobody likes to do someone else’s work, and that is a plus for a fraudster. But, doing someone else’s work has gotten many a fraudster caught (and often highlights errors and weaknesses). Bank reconciliations have been found to contain fictitious reconciling items. Checking the mail has revealed bank accounts that employees secretly opened and used to divert company funds for their own benefit. A check of vendor statements and payments has revealed payments being made to fake vendors. A lot of benefits are gained by employers when they give their workers time off and use that time to have their peers do the vacationers’ work. Several authorities, including the Federal Deposit Insurance Corporation (FDIC) and the SEC recommend that banks and investment advisors, among others, adopt mandatory two-week vacation policies as a safeguard against fraud. This is an approach that other types of businesses should also consider adopting. Several companies have adopted this policy of a two consecutive weeks off. This gives sufficient time to have other employees perform the tasks of their vacationing colleagues.

There is another benefit to having others do the work of their coworkers, either when that employee is on vacation or by rotating tasks. This is increases the number of employees with knowledge of processes, with all the peculiarities a company will have that are not in the company manuals. I recently read a piece on TheInnerAuditor website about the dangers and risks involved when knowledge is held by one individual in a company. Invariably that person’s work is never checked (who would know how to) and no one ever knows when this special person makes an error or, even worse, is committing fraud. In addition to this, should this person quit, retire or fall ill, the company will find that has no idea how to do certain things or even where to find the information required for the task. This is because it has been easier to rely on this one brain trust than to learn what the trust knows. And the brain trust enjoys the power and authority given to them because they are always the smartest person in the room. I have written before about how notes on systems and processes may not include every single piece of information. Having others cycle through tasks is the best way to be sure that others know how to perform the tasks and that more than one person knows what is going on.

So, bosses, go ahead, give your employees a break, a real break. They will be happier and likely more productive for it and it will benefit your company. it will improve your chances of detecting and deterring fraud and it will help prevent errors. Finally, it will make sure that you don’t have to depend on one person to keep the business running.

And, workers, tell your bosses to give you lots of time off and remind them to, please, have someone do your work while you’re away. Assure them that you are not doing this for yourself. No, this is part of you looking out for their business.

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More Equal Than Others

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Every time he is channel surfing and comes across The Godfather, my husband, James, watches it. It doesn’t matter whether the film is one minute or one hour in, he stops and watches the rest of the movie. He never tires of it. He is happy to watch The Godfather every day of the week, if that is how often it pops up on the television. In high school, I had a similar relationship with Animal Farm (and some other books). It is a good thing that I didn’t mind reading Animal Farm, because it was a book we studied, at great length, in school. It has been many years since I read the book, but the commandments stick with me. For those that have not read Animal Farm, in a nutshell, animals on a farm rise up against the humans and come up with seven commandments. The commandments include declarations like “No animal shall drink alcohol” and “No animal shall kill any other animal”. However, as time goes by, some animals are sucked in by the intoxicating nature of power and the commandments are amended – “No animal shall drink… to excess” and “No animal shall kind any other animal… without cause”. This week, when Jim Ulvog wrote to me about UBS in the news, I was reminded of the commandment that was, initially, “All animals are equal” but morphed into “All animals are equal… but some are more equal than others”.

Last year, when writing about high frequency trading, I mentioned dark pools. Watching the news, the stock market that gets the most coverage is the New York Stock Exchange (NYSE). However, there are 16 national securities exchanges and then there are a further 45 so-called dark pools. Dark pools are not easily accessible to the public and are run by private brokerages. UBS ran one such brokerage and the SEC charged this brokerage with telling its customers that they were all equal while behaving as though some customers were more equal than others. In doing this, they not only violated their customers’ trust, they also, allegedly, violated securities law.

Dark pools are so-called because they give anonymity to the traders who use them. Like an extreme version of poker, in dark pools, the identities of the traders and the size of their orders are kept secret until the orders are filled. In this way, dark pools give traders the freedom to trade without other parties being privy to what they are doing. However (according to the SEC’s charges), with UBS, it turns out that UBS was operating its dark pool at an additionally shady level and giving some of its clients flashlights. For example, to its market makers and high-frequency traders, it gave the option, called PrimaryPegPlus (PPP), of being able to bid in fractions of a cent, despite this practice being illegal. So these PPP customers were able to jump ahead of customers bidding in, legal, whole penny prices. Furthermore, UBS did not disclose this and other practices to all its customers. So the uninformed customers were trading in this dark pool, thinking that they were equal to the other members of the dark pool, while, in reality this was not the case. It is as though UBS held a road race that a bunch of people entered but then UBS picked out a few cool kids and, secretly, gave them rocket-propelled shoes.

Trading in the various securities markets is complicated enough as it is, with some players being more experienced and sophisticated than others. We have high-frequency traders who use complex tools, large volume and nano-second speeds, tools that the ordinary man on the street generally does not have access to. To add to all of this complexity, if you have the markets advertising themselves as one thing, but selling something completely different, something that gives clandestine, unfair advantage to a group of clients over another, that just doesn’t sound right. It didn’t sound right to the SEC either – they fined UBS $14.5 million (even though UBS neither admitted nor denied guilt when paying the fine). Maybe that’s because the Animal Farm commandments are, right or wrong, just the way things are?

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Here’s My Number And A Dime…

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“If you see something, say something”. Living in New York City, this is a message I come across often. I see it advertised all over the subway, I see it on buses and I have even seen it on television. Although the messages tell us to inform a police officer, MTA employee or call a toll-free number in the cases that we do see something and want to say something, I have often thought about the logistics of this. On my way home from work, I tend to end up in the last subway car. Now, say I get onto the train and I see something and I want to say something. I am in the last car and can barely see the subway conductor who is in the middle of the train. Do I try to run up the platform to get to the MTA employee before the train doors close and the train sets off? Do I perhaps hope that there is a police officer that I can alert, hanging out on the subway platform? My subway station is one of the few that now has cellphone reception, so I could call the toll-free number. However, I have never taken the time to actually take the number down so I have no idea what it is. All this said, I like to think that, on the day that I do see something and need to say something; it will be like the movies and things will fall in place and work out.

Previously, when talking about controls, I have discussed the importance of the segregation of duties and how having several people involved in a process means that there are other people who are watching what is going on and who, therefore, can report any untoward activities that they see. Annually, the Association of Certified Fraud Examiners (ACFE) publishes a Report to the Nations on Occupational Fraud and Abuse. The 2014 report stated, “Over 40% of all cases were detected by a tip – more than twice the rate of any other detection method.” That is a staggering statistic and emphasizes just how important people who see and say something are when it comes to fraud detection. The knowledge that there is an easy way for fraud to be reported may also serve as a deterrent to those contemplating committing fraud. In response to a series of huge financial scandals that led to losses in the billions of dollars and the end of companies such as Enron and WorldCom, the Sarbanes- Oxley Act was passed in 2002. Among its various provisions, it required that publicly traded companies establish a whistleblower system that makes it easy for employees and third parties to anonymously report financial misdeeds.

There is a television show called “The First 48”. The premise of the show is that the chances of solving a murder are cut in half, if investigators do not get a lead within the first 48 hours. On a few occasions, I have watched as detectives go from door to door in a neighborhood, asking people if they know anything about the homicide that occurred. Generally, the police are met with silence, shaking heads and closing doors. However once they get back to the police station, their phones start ringing and people leave anonymous tips that often lead to an arrest. Anonymity is a very important aspect of creating a whistleblower system. The fear of punishment for reporting fraud, such as being fired, demoted or even physically attacked, can keep a witness silent. It is vital that a person knows that they can safely make a report and remain unidentified, should they wish to do so.

There should be several reporting options available to the whistleblower, such as the telephone, an electronic system and U.S. mail, giving the whistleblower the opportunity to use the method that they are most comfortable with. Also, the system should be available 24 hours a day, 365 days a year. With the whistleblower hotline, a trained interviewer, who knows how and what to ask the caller should answer the phones. The last thing a nervous caller wants to deal with is voicemail.

In order to make the whistleblower system most effective, a corporate entity’s staff, vendors and other third parties need to know that there is a way that they can report wrongdoing and that action will be taken. This means that a company with a whistleblower system should distribute literature and hold training sessions on ethics, processes and how to report any financial wrongdoing. Several years ago, I caught a cab from Manhattan to Brooklyn. During my ride, the cab driver complained about having to drive to Brooklyn and tried, several times, to drop me off at a subway station. I insisted that he take me to Brooklyn, as I had requested. He then spent the rest of the ride swearing and protesting. Once we reached my destination and I stepped out of the taxi, he yelled out the window, “Bitch”, and drove off. Suffice to say, I was upset by this experience. Shaking, I walked into the building and called 311, New York City’s non-emergency information and complaint service. I told the operator about my experience and gave her the taxi driver’s medallion number. She took my report and asked whether or not I wished to remain anonymous. I chose not to, wound up facing the driver in a hearing, and winning my case. I did all this because I did not appreciate how the taxi driver had treated me and felt that I should not let him think that it was okay for him to behave in that manner. More importantly, I did this because I knew about and had access to an easy, and well-publicized service where I could lodge my complaint and have my issue investigated and resolved.

I have mentioned that publicly traded companies in the United States are mandated to set up a whistleblower system. It is in the interest of other entities to consider a system by which anyone who comes across financial crime can report the crime, knowing that something will be done about it and that no one will come after them for making the report. Sometimes something as simple as an anonymous mailbox can make a big difference – just knowing that there is a way to report crime gets people reporting crime. Then again, as an employee or a third-party, such as a vendor or a customer, there may be times when you feel as though the corporate culture is so corrupt that no one within the company will respond to your complaint. At times like this, you should look to the law for assistance. In New York City, you can call 311 for guidance and assistance. You can also visit the District Attorney’s website for information on how to report a financial crime. The power of people speaking up when they see something amiss cannot be underestimated and voicing your concerns is easier than you imagine; remember whistleblowers are the number one (by far) way in which fraud is discovered. So, really, if you see something, say something. You don’t even have to worry about the train leaving you behind.

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Hold On!

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A few weeks ago, I took a walk in Prospect Park with a friend. We had not caught up in a while and I had a lot to talk about. I am a judge for the Excellence in Financial Journalism Awards, presented by the New York State Society of CPAs, and I had just finished reading the many entries submitted by very talented journalists. Several submissions were on the subject of high-frequency trading and I was fascinated by the reports that I had read and watched. As I launched into my story, she interrupted me and asked, “What is high-frequency trading?”

I was less surprised by her question than I would have been three or four days earlier. This is because I had been asked that question every time I had started talking to people about high-frequency trading. Initially had been surprised that so few people knew about high-frequency trading but then I realized that I couldn’t assume that, just because I own the t-shirt, everyone else is a huge fan of Planet Money or, indeed just because I have the sweatshirt, the rest of the world is hooked on Radiolab. Both shows have covered the subject of high-frequency trading. Planet Money, in particular, has spoken extensively about high-speed trading.

That night, no joke, I tuned in to watch 60 Minutes and Steve Kroft was talking with Michael Lewis about his new book, Flash Boys, which talks about high-frequency trading and how it has negatively affected how stock markets work. Flash Boys is a popular book right now but, I wonder, though we are throwing around the term HFT (the now popular acronym for high-frequency trading) and discussing how markets are affected by HFT, how many of us really know what HFT is?

Watching television or the movies, the portrayal of the stock market has not changed much in decades. Bells ring to announce the opening and closing of the market and, in between, we see massive rooms of men (and it is just about always men) avidly watching screens of numbers, yelling madly and waving pieces of paper. Would you be shocked to discover that the stock markets are not “as seen on TV”? The markets have not operated in that way for a while now; things are far more complicated. Currently, there are 16 regulated national securities exchanges in the United States (and another 45 or so dark pools, which are not open to the public) and most of these exchanges are nowhere near Wall Street. Most trades are executed electronically and many of these trades are executed by computers using powerful algorithms. Initially, when electronic exchanges were first launched, there was a rule that, although the exchanges were computerized, orders had to be entered through the keyboard. The challenge to those using the electronic exchange, was how to be able to trade quickly and one such trader, Thomas Peterffy, built a typing robot to satisfy this requirement while increasing the speed of trading. The speed he achieved then is a joke compared to what high-speed trading looks like today.

Now there are no such rules and now the algorithms used by high-frequency traders have computers making multiple trades in fractions of a second. In addition to this, high-frequency traders can make trades and cancel them without paying fees for doing so. These traders are known to flood a market with orders, to get a feel of what is going on in that market, and then cancel the orders almost immediately. In fact, almost 97% of trades made in the US stock market are canceled and the bulk of these cancellations were from high-frequency traders. This activity tends to manipulate stock prices and, as a result, high-frequency traders can make pennies on trades. Because they can trade at incredibly high speeds and volumes, these pennies can add up pretty quickly to healthy returns. The returns are tempting enough that HFT entities are willing to pay to get information a mere two seconds before other people and are also willing to pay to get a few feet closer to the trading floor than their competition.

Now, how do two seconds and a few feet make a difference? This is because of the speed at which information can be processed and sent between traders and their markets. Any innovation that gets traders to the market before their competition so they can buy at a lower price and sell at a higher one is one worth spending on. This is the essence of high-frequency trading and traders able to execute millions of trades per second, can make many fractions of a cent add up to many dollars over a short period of time. The volume of trading has exploded in the last decade and the Nanex graphic of this activity is a very powerful visual.

Things can also go horribly wrong in markets with high-frequency trading. On May 6, 2010, at 16:42:44 (yes, down to the second) the stock market plunged 600 points in five minutes and this drop was stopped only when the market paused trading for 5 seconds and then started up again. The market regained the 600 points almost as quickly and as mysteriously as it had lost them. There is no consensus on what caused the Flash Crash of 2010, though most point to high-frequency trading as at least one of the factors responsible. That people cannot agree one what the causes of the crash were and that it took almost half a year for the SEC to come out with a report on what happened, shows just how complicated and difficult to understand trading and, in particular high-frequency trading are. I mean, once we start talking high math and algorithms, most of the world’s population is left cross-eyed and dizzy (and that means, me too).

There is no shortage of opinions to be found on high-frequency trading. Some use everyday English and exciting anecdotes to explain themselves while others employ fancy acronyms, mathematical phrases and financial-speak to put forward their thoughts. Whatever opinions and explanations you decide to explore, the first thing to do is to understand the basics of what they are talking about. How, really, can you have an opinion if you don’t even know what people are talking about? This is a very fast market. Nanosecond quick, so you better hold on!

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Mmmm… Mmmm… Good!

ImageA few months ago, I voiced my opinion about how it would be great to have a forensic accountant as an option to run the Securities and Exchange Commission (SEC). I can’t deny it, it’s right here, written in Internet stone. The reason I spoke about it was that a new head of the SEC had just been announced and, yet again, it was a lawyer. I believed that having a CPA, credentialed in financial forensics, might shake things up or at least lead the SEC to think of new ways and methods to protect investors. I still believe that a qualified forensic accountant would make an excellent candidate, but it seems that, in the case of Mary Jo White, the new head of the SEC, I may have been haste in my criticisms.

When he nominated Mary Jo White to head the SEC, President Obama said, “You don’t want to mess with Mary Jo”. Apparently it wasn’t just talk. Mary Jo White has said, in an interview, “I think financial statement fraud has always been important to the SEC”, and that she has committed substantial resources to the detection and investigation of fraud in accounting and financial disclosures seems to back that statement. On 2 July, the SEC announced three new Division of Enforcement initiatives; the Financial Reporting and Audit Task Force (FRATF), the Microcap Fraud Task Force (MFTF) and the Center for Risk and Quantitative Analytics (CRQA). These are fancy sounding names, for sure, but what are they and why are they encouraging with respect to the SEC’s goals?

First, the FRATF’s focus is detecting and investigating fraudulent or improper financial reporting and engaging in enforcement actions related to accounting and disclosure fraud. The MFTF’s goal is to target abusive trading and fraudulent behavior in securities issues by microcap companies. Microcap means that the company’s market capitalization, which is the share price multiplied by the number of outstanding shares of that company, is between $50 and $300 million. This task force will pay particular attention to microcap companies that do not regularly issue public financial results, since the lack of regular publicly available reports means that potential investors have limited access to information about the company. This, in turn, increases the risk that the investors may be fed fraudulent information that they cannot sufficiently verify. Finally, the CRQA will, as its title suggests, specialize quantitative data and analytics. This is the high-tech innovation of the SEC. Here the SEC will work to identify risks and potential threats to investors, be a part, along with other agencies, of risk-based investigations and come up with ways to identify possible illegality. The CRQA will employ various data technologies to achieve this goal. Of course, the usefulness of quantitative data analytics is only as good as those who use it. There is a lot of data out there but you need to know how to work with it in order to get the information that you are looking for.

What is encouraging about the announcement of the initiatives is not only that the SEC has declared a focus on the proactive detection and investigation of possible fraud, it is also not just that the SEC is stepping up its use of technology and data analytics in its endeavors, it is in large part about the manpower that they say they are going to employ for these initiatives. The SEC has announced that they will include enforcement attorneys and accountants, which is a great idea. The successful pursuit of financial fraud requires the expertise of people who know the books and people who know the law. In particular, the collaboration of attorneys and forensic accountants can lead to a formidable fraud fighting force. Certified forensic CPAs not only understand financial records, they also know how to look for potential fraud in those financial records and this information must be of a standard suitable for a court of law. Working with attorneys, the forensic accountant can put together information and provide appropriate litigation services in cases that the SEC decides to pursue.

Yes, it is true; I did voice my dissenting opinion about the appointment of another in a long line of attorneys to head the SEC. I have not changed my mind that a well-credentialed forensic CPA would be a wonderful choice for this position. However, I do concede that it is apparent that Mary Jo White understands the importance of both legal and financial expertise when it comes to policing the financial markets. Vital roles are played by all parties in the investigation and prosecution of financial crime and in the protection of investors. So, as these initiatives go into action and work towards achieving their stated goals, I shall eat at least some of my words. As long as fewer parties are getting away with their financial misdeeds, I shall enjoy every mouthful.

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Nothing To See Here, Move Al… Wait!

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JPMorgan Chase has been in the news quite a bit lately. Just last week, two employees were charged in connection with the adventures of the London Whale (though the indicted former coworkers may be seeing him as more of a rat than a whale right now). On Sunday, I opened the paper to read about a bribery investigation that the SEC has launched. As I have discussed before, bribery of foreign public officials by US companies is illegal and it appears that the SEC is looking into whether this has happened with JPMorgan’s China business.

JPMorgan hired the children of officials of state-controlled companies. Hiring someone, even if their parents have very important jobs, is not wrong in and of itself. However, if it is found that these children were hired, not on the strength of their qualifications but, so that JPMorgan could get business with the companies that their parents worked at then JPMorgan may very well find itself in trouble. That JPMorgan hired these children and then received lucrative contracts from the companies where the fathers of these new employees were high-ranking officials raises red flags, so it is no surprise that the SEC is investigating the matter.

You can see here that bribery of government officials comes in various forms and is not always as straightforward as a bunch of cash in an envelope, slipped over to a congressman. Any actions taken to influence officials and gain unfair advantages in business dealings is likely to be considered a bribe. What has happened here as well is that the definition of a government official is not just a political government representative. In the case of nations, such as China, where a lot of large enterprises are state-controlled, officials at these enterprises are seen as government officials. This means that, where JPMorgan may have hired the child of a private enterprise and received lucrative deals without the SEC batting an eyelid, because the entities in question are governmental enterprises, the rules are different.

It is important to note a few things:

  • That the SEC is investigating this matter does not imply that these children were not qualified for the jobs that they held. In fact, this may not matter. If they were hired in order to get cushy deals that JPMorgan may not have received otherwise, then JPMorgan may face FCPA violation charges.
  • Right now the investigation is merely that – an investigation. The SEC has not accused JPMorgan of wrongdoing. What has happened is that they have noticed red flags – the hiring followed by the lucrative deals – and they are looking into this matter to ensure that laws were not broken.
  • That the SEC is investigating this matter is the way it should be. When red flags are raised, one should look into the matter and even if it is found that nothing of concern happened, it was not a wasted effort.  The knowledge that red flags will be investigated serves as a deterrent for some who consider breaking the law.

Some may be rolling their eyes about this story. The offspring of the very privileged – high ranking corporate officials or famous people – probably get hired because of who their parents are all the time. It’s like that person in the grocery story taking their very-full-of-way-more-than-10-items shopping cart into the express checkout lane. It’s not right but it doesn’t appear that it will ever stop. However, the story here is in the nuance –

  • We are dealing with state-controlled enterprises, not private companies here.
  • Because they are state-controlled, officials at these enterprises are considered public officials
  • Therefore, the FCPA makes it illegal for companies to give favors to these de facto public officials in exchange for sweet deals.

In the past, the Justice Department has not been aggressive about investigating these cases but things may be changing. So we shall just watch this case and see how JPMorgan fares and if hiring practices will become a focus of the SEC. Just because everyone is doing it, it doesn’t make it okay and, if it is illegal, you may just turn out to be the unlucky one the law decides to come after. Remember that when you have your cart with 20 items and you think about using the “10 Items or Less” lane.

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All Over This One

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In the United States, bribery of a public official is illegal. Public officials, on a state, local or national level, tend to hold a lot of power. It would not be right to allow those among us with deep pockets to use the contents of said pockets to get unfair benefits, such as no-bid contracts, tax breaks and “get out of jail free” passes. In 1977, the Foreign Corrupt Practices Act (FCPA) made it illegal for U.S. persons, companies and their subsidiaries to bribe foreign government officials. The FCPA was further amended in 1998 to apply to foreign people and companies whose payments pass through the United States. The FCPA also applies if a foreign party authorizes a bribe via an email that is stored on a server in the United States. It is a far-reaching law with two main provisions – an anti-bribery provision that is generally enforced by the U.S. Department of Justice (DOJ) and accounting and record-keeping provision that is generally enforced by the Securities and Exchange Commission (SEC).

A huge incentive to not violate the FCPA is the severity of the punishment. The criminal and civil fines for violating the FCPA apply to companies and individuals alike. Companies can be fined up to a maximum of twice the benefits sought by the bribe. For individuals, fines can be up to $5 million and 20 years in jail. Fines and jail time can apply for either the corrupt payment or violation of the books and records provision. In addition to the fines, companies may also receive sanctions such as the loss of export licenses and disqualification from U.S. government contracting. For example, in 2008, Siemens was fined more than $1.3 billion by the DOJ, the SEC and German regulators and, more recently, Walmart is under investigation for bribery of officials in Mexico, China and elsewhere.

To avoid the fines and jail time, individuals and firms must comply with both provisions of the FCPA. The first, bribery, seems straightforward but I shall go over it so we are clear.

  1. Do not make payments to public officials in order to get special favors. An officer at state-owned entity is also considered a public official. It is safest, and ethical, to not pay bribes to anyone. However, be mindful of the fact that bribes of public officials will get you into the most trouble.
  2. If you invite public officials on a trip to show off your business or to a conference, do not throw in extras, such as a trip to Disneyland for their family. Keep it all above-board and about business.
  3. “Gifts” such as watches that costs thousands of dollars or a suitcase of cash are taboo.
  4. Payments related to the political campaigns of foreign governments are also not allowed.

The accounting provisions are where the forensic accountant is very active, working for both the companies and for the DOJ and SEC. Corporations covered by the FCPA are required to make and maintain books and records that accurately and fairly reflect their transactions and to devise and keep a sufficient system of internal controls. This is so that government agencies inspecting the books and records of the corporation will be able to easily see that the corporation is in compliance with the anti-bribery laws. The controls are so that the employees of the corporation do have the opportunity to commit fraud or bribery. When companies and individuals are paying bribes to public officials, it is highly likely that they will try to hide these transactions in their ledgers so they are not immediately identifiable as illegal transactions.

Companies with international operations will often have a department that review the books and internal control systems to ensure that they are complying with FCPA provisions. From time to time, the company may call in a forensic accountant to perform an internal investigation. This may happen either because the company suspects that untoward behavior has occurred or as a periodic review of their books and systems.

The DOJ and SEC will also employ the services of forensic accountants when they investigate companies and individuals that they suspect of violating the FCPA. When cases like this happen, there will be forensic accountants working for both the government agencies and the entity being investigated. In addition to discovering whether or not bribery has occurred, the company and the government agencies seek to determine the extent of the violations and determine the value of the gains realized and, therefore, the fines and other penalties to be levied by the government and avoided by the corporation. These investigations can be very extensive and span several continents, depending on the size and reach of the corporation. Financial forensic experts are instrumental and very involved in these investigations, tracing payments and working diligently to find what the corporation has tried to hide both on and off its books.

Often, an element of a FCPA settlement is the appointment of a multi-year monitor. This happens after the investigation and is an area where forensic accountants can use their expertise to examine the company’s control environment and record-keeping and assess the progress the company has made toward compliance with the law.

In recent years, the DOJ and the SEC have become very aggressive about enforcing the FCPA. In addition to this, other nations have enacted their own anti-bribery laws; the U.K. Bribery Act of 2010 has been in force since July 2011 and criminalizes bribe payments to private individuals as well as government officials. Also, there is more and more international cooperation in the investigation and enforcement of this law. Through it all, the work and expertise of financial forensic experts are extensive and vital. A lot of big firm lawyers think of the FCPA when they think of forensic accountants. It is indeed one of the many places you will find the financial forensic expert.

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Hey, That’s My Stuff!

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I have written before about the fraud triangle and how the three elements, pressure, opportunity and rationalization, tend to be the factors that drive a person to commit fraud. Well, a few days ago, my husband and I were talking about Scott London and his insider trading charges. We began discussing the issues in relation to the fraud triangle – what was the pressure that he felt and how did he rationalize his actions? The opportunities for him to pass information on to his friend were, as far as he was concerned, quite plenty as he was operating outside of the system in which he worked and its established controls. However, he had not fully factored in the FBI and the SEC and their activities to attempt to thwart fraud.

My husband then said – but how do you really take away the opportunity? I don’t understand how you can really stop someone from trying to steal. That is true, however, you can put in safeguards to make it very difficult for the theft to occur, I responded. My husband, a photographer, is in the process of moving into a new studio space so I decided to use this as a way to explain my point.

Before moving his equipment and furniture into the space, my husband spent a lot of time thinking about the security in the building he is moving into. He walked around the premises, noting where the security office was located, in relation to his studio; he took a look at the various points of entry into the space and assessed how easy it would be for someone to gain unauthorized access; and he looked at the building and what security it came with. Armed with this information, he then sat down and made a plan. He researched alarm systems, door and window locks and various barriers to entry of his studio. Also, within his studio, he took steps to further secure his equipment with lock-boxes, storage containers and other measures. This, I told him, is how you attempt to take away the opportunity. He could have moved into the office spaces as is, without taking any steps to secure his space and its contents, but he did not. He took the time and energy to dissuade a potential intruder from entering his space. By making it as difficult has possible for someone to get into his space, he is working to break the triangle.

Controls to protect ones assets can be physical, as with the studio space, or procedural, as with an authorization process for processing checks in an accounts payable department. In both cases, they are very important when it comes to trying to break the fraud cycle and prevent theft, insider trading or whatever the crime of the day is.

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Who’s Toning the Top?

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This week, Scott London, a KPMG ex-partner was busted. It was the getting busted that resulted in him going from partner to ex-partner. It turns out that, for several years, Scott London had been passing on non-public information about at least two of his clients, Herbalife and Skechers, to a golfing buddy, Bryan Shaw. Shaw then used this information to make over a million dollars on the stock market. London was caught during an FBI sting that included a photo of him receiving a bag of money from Shaw in a parking lot. A parking lot. Straight out of the movies. It is a very interesting case that is still unfolding. We are learning a lot about how and what happened and perhaps we shall also learn why it happened. Why did this KPMG partner (at the time) decide to share confidential client information with his friend and take expensive gifts and cash, a fraction of his annual salary, for this information? Discovering the motivations will be interesting but right now, this case has me thinking about another issue.

This case brings up, to me, the issue of “the tone at the top”. This is the example that a company’s management sets that may affect how ethically employees may behave. As a CPA, forensic accountant and a former auditor, I know that ethics are a big part of our education and continuing education. The stress on ethics is part of why CPAs have been found to be the most trusted business professionals, according to surveys. In addition to the required ethics continuing education that credentialed forensic accountants, and CPAs, have to complete, laws and firm policies go a long way to trying to ensure that an accounting professional is objective and, in many cases, independent from his or her client. For example, audit firms practice partner rotation with their public company clients. This means that every five years public firms will have a new partner managing their audit. Also, forensic accountants, before accepting an assignment, will run a check to ensure that there is no conflict of interest. Even the appearance of a lack of independence can result in people not trusting their accountant, whether that accountant is performing an audit or forensic services.

There are many rules and regulations to try to maintain the integrity of the accounting profession but as partners are at the top of the totem pole, it is very important to know who is watching those at the top? What is being done to make sure that those at the top are not abusing their positions of power by compromising their ethics. The evidently casual way that Scott London shared confidential information with his golf buddy implies that he either did not believe that there would be significant consequences if he were caught or that he would not get caught at all. Although he took his actions outside of the control systems created by the audit firms which include the disclosure of investments to prevent a conflict of interests, there were the investigations by other agencies, the FBI in this case, that flagged Shaw’s suspicious trades. That is a comfort. Hopefully, as this case and story unfold we will have the full power of the law descend upon London for his insider trading. In addition to the charges being leveled against London by the FBI and the SEC, KPMG has stated that it will be bringing legal actions against London. It should be more than lip service. KPMG and other CPA firms must realize that how they deal with their most powerful and senior practitioners goes a long way to ensuring that they remain trusted and held in high esteem.

Granted, every profession will have bad apples – unscrupulous people who have little regard for the profession. When it comes to being a CPA, a license where members agree to practice according to very high standards, it is imperative that those who are caught violating the code of conduct and the law are dealt with strictly. Partners of the Big Four accounting firm are more in the spotlight than other accountants and it should be clear that a position of power does not exempt one from discipline – in fact, the position of power should mean that you are more disciplined.

Finally, according to the United States Golf Association, London has a handicap of 10 and Shaw’s handicap is 12. Generally, a lapse in honesty tends to extend beyond just one event. A person who is gaming one system is likely gaming others. It is probably a good idea to check on that handicap, though I doubt either of those two men will be playing golf any time soon (at least I hope they are too busy paying for their behavior to do so).

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Someone Was Listening In…

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Just a few days ago, I shared my thoughts with you about having a CPA, Certified in Financial Forensics (CFF), to head the Securities & Exchange Commission. Someone must have been listening in because the SEC recently announced that its new Inspector General is a CFF. It is not quite a commissioner, but it is a step in a great direction. The SEC’s Office of Inspector General (OIG) is an independent office set up to audit and investigate fraud, waste and abuse within the SEC. It is all rather meta – this is the office that polices the securities police. In the appointment of Mr Hoecker to head the SEC’s Office of Inspector General is the perfect opportunity to demonstrate the strengths of the CPA Forensic Accountant. The SEC’s Office of Inspector General has recently been the rocked scandal and is being sued, so it is in desperate need of a truly independent leader who is skilled and experienced in the investigation of fraud and who knows the ins and outs of objective and independent audits. Today a CFF policing the police, tomorrow… watch this space.

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