While all eyes have been on Wells Fargo in the wake of the bank's fake accounts scandal, there is another, not so apparent culprit at the heart of the crisis: the U.S. Securities and Exchange Commission.
Under SEC Chair Mary Jo White's watch, the agency has failed to enforce disclosure requirements at Wells Fargo and elsewhere at a time when trust in big business has hit historic lows.
The SEC’s corporate disclosure rules exist to forewarn investors about major issues that could affect a company’s well-being. Yet investors and the public were surprised last month by the alleged wide-spread multi-year Wells Fargo fraud.
The SEC had many opportunities to step in to make sure investors learned about Wells Fargo's problems much sooner. Instead, the opposite happened. In early 2014, the agency allowed Wells Fargo and another major bank to exclude shareholder proposals from New York's comptroller that would have provided investors with information on which employees were "capable of exposing them to major losses" because of their "bonus incentives." As a result, Wells Fargo investors never even had a chance to vote on the measure, despite the Los Angeles Times' Wells Fargo investigation two months earlier that had revealed "forged client signatures" and “incentive pay linked to sales.”
Under White’s watch, the SEC has been soft in enforcing disclosure requirements related to risky compensation, which were issued after the 2008 financial crisis. Any member of the SEC staff who had reviewed Wells Fargo’s 2013 annual pay report would likely have seen that Wells Fargo CEO John Stumpf and his four top lieutenants’ multi-million dollar paychecks included large stock awards as well as annual bonuses tied to sales measures. This should have been viewed as a red flag that Wells Fargo had risky compensation practices — and the board should have described those risks in its annual investor filings.
Regulators knew following the financial crisis that using sales measures to determine bank bonuses created risky behaviors and advised against them. And paying executives in stock has been a major risk concern since Enron and WorldCom. Dick Fuld, CEO of Lehman Brothers, who oversaw that bank’s collapse in the financial crisis, was the poster child for taking risky actions to goose the stock price. At the Wells Fargo Senate hearing last month, Senator Elizabeth Warren told Stumpf that he had pumped up Wells Fargo’s stock price by touting the bank’s sales culture.
The SEC has also been loath to tangle with the external auditors, the CEOs and the CFOs, who sign off on company’s financial statements. According to a New York Times report, Wells Fargo had fake accounts as far back as 2005. So for an extended time (how long exactly is unclear), Wells Fargo did not know (nor did the board's audit committee know) whether accounts and income on its books were valid or not. If that is not a material control weakness that should be disclosed (in other words, an operational deficiency, which could cause reported numbers to be wrong), what would be?
The SEC has not just failed by omission. Against investor wishes, White has personally advocated for changes to disclosure rules at all U.S. public companies, which include eliminating important executive compensation information from investors’ voting materials.
If we are to prevent another Wells Fargo-type fiasco, we must do more than focus on one company's management, as important as that may be. We must also look at the broken regulatory systems that enabled it.
Eleanor Bloxham is CEO of The Value Alliance, an independent board education and advisory firm. She is the author of two books on corporate governance and valuation.