Thursday, March 4, 2021
Corporate Compliance Insights
  • Home
  • About
    • About CCI
    • Writing for CCI
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Articles
    • See All Articles
    • NEW: COVID-Related
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Leadership and Career
  • Vendor News
  • Jobs
    • Compliance & Risk
    • Information Security
  • Events
    • Webinars & Events
    • Submit an Event
  • Downloads
    • eBooks
    • Whitepapers
  • Podcasts
  • Videos
  • Subscribe
No Result
View All Result
  • Home
  • About
    • About CCI
    • Writing for CCI
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Articles
    • See All Articles
    • NEW: COVID-Related
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Leadership and Career
  • Vendor News
  • Jobs
    • Compliance & Risk
    • Information Security
  • Events
    • Webinars & Events
    • Submit an Event
  • Downloads
    • eBooks
    • Whitepapers
  • Podcasts
  • Videos
  • Subscribe
No Result
View All Result
Corporate Compliance Insights
Home Compliance

Something is Rotten in Denmark or Is It the Banking Industry?

by Thomas Fox
April 4, 2014
in Compliance
Something is Rotten in Denmark or Is It the Banking Industry?

This article was republished with permission from Tom Fox’s FCPA Compliance and Ethics Blog.

“Something is rotten in the state of Denmark” is one of the signature lines from Shakespeare’s play Hamlet. I thought about that when I read a couple of a recent articles in the New York Times (NYT), entitled “Questions Are Asked of Rot in Banking Culture,” by Peter Eavis and one in the Wall Street Journal (WSJ), entitled “Lawmakers Tell Justice Dept. to Seek Swiss Banker Extraditions,” by Joel Schectman. Eavis wrote that banks have been accused of money laundering, tax dodging, market rigging and rampant risk-taking; all of which, I would add, could lead to potential Foreign Corrupt Practices Act (FCPA) violations.

Banks would seem to have a different relationship with the public than energy companies. Eavis said that “At the heart of the issue is an inviolate social contract that bankers are supposed to honor. The government agrees to protect banks from collapse, and in return, bankers are meant to uphold the highest ethics when handling other people’s money. But when law-breaking and other missteps proliferate at banks, it is a sign that the industry has stopped cleaving to the special contract, endangering taxpayers. And bad management can be a leading indicator of future financial problems at an institution.”

But more than this “social contract” is regulators. The Department of Justice (DOJ) has never been shy about enforcing the FCPA against energy companies who violate the law. “Too big to fail” still resonates as an excuse for regulators who didn’t regulate so that they “may find it hard to convince the public that they mean business” this time around and on this issue. Eavis noted that William C. Dudley, president of the New York Fed and Thomas J. Curry, Comptroller of the Currency, have both recently spoken out about banks and their culture. But Eavis notes, “each had a reputation for being too soft on the banks.”

The regulators told Eavis that they are indeed “ratcheting up the pressure” on banks. Curry was quoted as saying, “We are ratcheting up the potential consequences. This is something new.” Eavis properly notes that with some of the best legal talent money can buy for defense, who deploy strategies like refusing to turn over potential evidence to regulators” and because banks simply have such large profits, “they can easily absorb the financial penalties the government throws at them.”

Eavis notes that one continuing area of concern and an area of potential change is compensation. He states “compensation is one area where bank regulators may need to do more if they want to … clean up bank culture, according to critics of the industry.” This is because bank compensation practices “can reward unhealthy levels of short-term risk-taking and entice bankers into ethical lapses.”

While it is doubtful that banks would ever make changes similar to those made by GlaxoSmithKline PLC (GSK) to move away from compensation variably based upon sales to a straight salary, Eavis reports that regulators outside the U.S. “agreed after the crisis to overhaul bankers’ pay, in part by requiring them to wait several years before they receive all of their bonuses. The hope is that bankers will behave better if they know their employers can easily take back the deferred part of their pay.”

The problem regarding compensation in U.S. banks is that they “are still deferring much less pay than their European peers. The Fed is in charge of regulating compensation at American banks. When asked whether the pay overhaul at American banks had gone far enough, Mr. Dudley said, “There is potential to defer more compensation for longer periods of time.””

However, banks need more than simply a change in compensation to address their cultures. It really is about ethics. Interestingly, this is where “too big to fail” comes into play. But Eavis also writes, “Some banks may be so large and complex that it would be difficult for managers to maintain a clean culture across all of their operations.” Dudley was quoted as saying, “Either the firm is not too complex, you can manage it, you do know what’s going on,” he said. “Or, if you don’t know, that’s sort of raising the question whether the firm is too complex to manage.” This means “he would not allow size or complexity to be an excuse for ethical breaches.”

Although not directed at U.S. banks and bankers, Senators Carl Levine and John McCain, who jointly lead the Senate’s Permanent Subcommittee on Investigations, channeled their inner Howard Sklar when they wrote a letter to the DOJ and urged them to “at least attempt” extradition proceedings against indicted Swiss bankers. They jointly said, “Even if the extradition request is denied, it will inform both Switzerland and its citizens that the United States is ready to make full use of available legal tools to stop facilitation of U.S. tax evasion and hold alleged wrongdoers accountable.”

I felt the DOJ response was well reasoned when a spokesman said, “extradition proceedings would be a poor use of resources. Because aiding tax evasion is not considered a crime in Switzerland, the country is unlikely to honor U.S. extradition requests.” But John Carney, a former federal prosecutor who is now a partner at Baker & Hostetler LLP, believes that “an extradition request from U.S. authorities would be a powerful signal.” He was quoted as saying “It’s a shot across the bow for folks who think it could never happen,” Further, “The unsettling part for a potential defendant is the request is there and if the [Swiss] government ever changes its view, it’s one step closer to actually happening.””

I have written about Bankers Behaving Badly more than once. The litany of financial crimes they have admitted to increases almost monthly. But when the government regulators start talking about a rotten culture, that seems to take things up a notch or two. Remember, I come from Houston, which is the epicenter of FCPA enforcement. I do not remember any government official or regulator talking about “deep-seated cultural and ethical failures” at energy companies in Houston. These public comments should certainly be a wake up call for senior management at these institutions. My advice would be to get your Chief Compliance Officer (CCO) in for a meeting ASAP, and while you are at it, you may want to consider hiring a Chief Ethics Officer as well.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business advice, legal advice or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The author gives his permission to link, post, distribute or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.


Previous Post

Arbitration, Corruption and Voluntary Self-Disclosures: What are the Options?

Next Post

Encouraging Communication of Employee Concerns

Thomas Fox

Thomas Fox has practiced law in Houston for 25 years. He is now assisting companies with FCPA compliance, risk management and international transactions. He was most recently the General Counsel at Drilling Controls, Inc., a worldwide oilfield manufacturing and service company. He was previously Division Counsel with Halliburton Energy Services, Inc. where he supported Halliburton’s software division and its downhole division, which included the logging, directional drilling and drill bit business units. Tom attended undergraduate school at the University of Texas, graduate school at Michigan State University and law school at the University of Michigan. Tom writes and speaks nationally and internationally on a wide variety of topics, ranging from FCPA compliance, indemnities and other forms of risk management for a worldwide energy practice, tax issues faced by multi-national US companies, insurance coverage issues and protection of trade secrets. Thomas Fox can be contacted via email at tfox@tfoxlaw.com or through his website www.tfoxlaw.com. Follow this link to see all of his articles.

Related Posts

Thinking Outside the Tick Box

Thinking Outside the Tick Box: Compliance Training as a Competitive Advantage

March 3, 2021
The facade of the SEC in Washington, D.C.

Prepare Now to Comply with SEC’s Updated MD&A and Related Financial Disclosure Requirements

March 3, 2021
illustration of hand holding flashlight illuminating hidden stairs

The Corporate Transparency Act: Pulling Back the Veil

February 23, 2021
King & Spalding: GC Decision Tree for Internal Investigations

King & Spalding: GC Decision Tree for Internal Investigations

February 19, 2021
Next Post
Encouraging Communication of Employee Concerns

Encouraging Communication of Employee Concerns

OneTrust offers download to demonstrate privacy management leadership
Access realtime data
Addressing systemic racism in the workplace SAI Global
Top 10 Risk and Compliance Trends

Special Coverage

Special COVID page graphic

Jump to a Topic:

anti-corruption anti-money laundering/AML Artificial Intelligence/A.I. automation banks board of directors board risk oversight bribery CCPA/California Consumer Privacy Act Cloud Compliance communications management Coronavirus/COVID-19 corporate culture crisis management cyber crime cyber risk data analytics data breach data governance decision-making diversity DOJ due diligence ESG fcpa enforcement actions financial crime GDPR GRC HIPAA information security KYC/know your customer machine learning monitoring ransomware regtech reputation risk risk assessment SEC social media risk supply chain technology third party risk management tone at the top training whistleblowing
No Result
View All Result

Privacy Policy

Follow Us

  • Facebook
  • Twitter
  • LinkedIn
  • RSS Feed

Category

  • CCI Press
  • Compliance
  • Compliance Podcasts
  • Cybersecurity
  • Data Privacy
  • eBooks
  • Ethics
  • FCPA
  • Featured
  • Financial Services
  • Fraud
  • Governance
  • GRC Vendor News
  • HR Compliance
  • Internal Audit
  • Leadership and Career
  • Opinion
  • Resource Library
  • Risk
  • Uncategorized
  • Videos
  • Webinars
  • Whitepapers

© 2019 Corporate Compliance Insights

No Result
View All Result
  • Home
  • About
  • Articles
  • Vendor News
  • Podcasts
  • Videos
  • Whitepapers
  • eBooks
  • Events
  • Jobs
  • Subscribe

© 2019 Corporate Compliance Insights