Ethics* • definition - the rules of conduct recognized in respect to a particular class of human actions or a particular group, culture, etc.: professional ethics All virtue is summed up in dealing justly. Aristotle Greek critic, philosopher, physicist, & zoologist (384 BC - 322 BC) *1602, "the science of morals," pl. of M.E. ethik "study of morals" (1387), from O.Fr. ethique, from L.L. ethica, from Gk. ethike philosophia "moral philosophy," fem. of ethikos "ethical," from ethos "moral character," related to ethos "custom" . The word also traces to Ta Ethika, title of Aristotle's work. Ethic "a person's moral principles," attested from 1651. • • Since the scandals of the early 2000’s, Ethics has become an important part of investment Scandals to be mentioned a) Enron b) Tyco c) Barings Bank d) Bre-X e) Harvard Capital f) g) BCCI Pfizer Vocabulary • Front-running • Commingled funds • Arm’s Length • Insider trading • Regulatory Avoidance • Full Disclosure • Misrepresentation • Fiduciary Responsibilities Front running – trading stocks at a more favourable price before others without access the market can trade. The practice is now considered illegal. e.g. was frequent practice of some brokerage firms – would buy or sell their own shares before customers. Commingled Funds – Frequently used in the financial industry, the clients funds are not handled a separate portfolio, but are mixed together with funds belonging to the investment firm. e.g. Barings Bank – Nick Leeson was trying to cover losses by hiding them in a commingled fund Arm’s Length – The requirement that certain types of service and verification should not be in any way attached or interested in the other party. e.g. - Barings Bank – The wife of Nick Leeson was the head of the accounting department that was verifying his results Insider Trading – The practice of using information about a company which is not public and has been obtained as part of a privileged position within the company to make a gain or avoid a loss. e.g. Enron – Executives at Enron, knowing the company was in trouble, sold some of their shares, but insisted that the employees pension fund keep their shares without informing them of the difficulties of the company. Regulatory Avoidance – regulations are generally a way of confronting and dealing with a particular problem. Many people in the market think that regulations are just no good, and try to find ways around them. e.g. There are examples of this Barings, Enron, and Tyco. In Barings, for example, dealing in highrisk derivatives using commingled funds was prohibited in London. That is why Nick Leeson was in Singapore Full Disclosure – A company has an obligation to fully inform all stakeholders of situations which may significantly affect the financial situation of reputation of the company. e.g. There are examples of this in almost every case. Enron, for example did not disclose hidden debt through guarantees to smaller entities. Misrepresentation – This is simply the act of making a false statement or claim to deliberately mislead a party who has interest in the company. e.g. Bre-X claimed to have gold assays well beyond the imaginable. These later turned out to be false. Enron • • • Roots go back to 1931; founded in 1985 by Ken Lay Was an energy company which classified itself as a utility Became heavily involved in energy futures • Wife of a Senator Phil Gramm had Energy futures de-regulated (1992) and joined Enron board • Senator Gramm waited for Republicans to win in 2000, and got bill passed to allow free energy trades without disclosure • Enron was later discovered to be behind many of the “brown-outs that plagued California in 2001 • • Energy futures required purchase & sale of energy When sales didn’t take place, they were sold to off-shore (and off-balance sheet) subsidiaries to hide losses and fake profits on advice from accounting consultants. Enron Enron cont’d • Enron’s HR policy was to classify 15% of employees incompetent every year, and fire them • Between 1998 and 2001, Ken lay sold 4M Enron shares ($184M) – some just before the company declared bankruptcy • Lay, Jeff Skilling, and Andy Fastow were all found guilty of fraud and sentenced to jail • • • • • Lay died of a stroke in 2006, still professing innocence The Enron case lost all the employees their pension fund Auditors, Arthur Andersen were also found guilty, and the largest accounting firm in the world went bankrupt Andersen’s Houston office made $25M in auditing fees and $25M in consulting fees per year from Enron. Remainder of Enron broken into smaller entities Issues with Enron 1. Accounting and consulting being done by the same firm is questionable From paper written in 1999: “Major accounting firms all have consultation services, which frequently offer their services after an audit. The May issue of the Journal of Accountancy refers to a body called the Independence Standards Board, which examines issues related to the independence of these auditors, particularly in the face of growing SEC concerns. Its first standard was to require an annual declaration of independence from each auditor. Concerns arise involving family relationships, clients hiring staff away from the audit firm, as well as the use of ancillary services by affiliated consultancies. This last point is critical, because the auditor will sometimes be reviewing work done by a subsidiary on behalf of the stakeholders.” Issues with Enron 2. Accounting standards did not require full disclosure 3. Highly leveraged part of energy sector was unregulated 4. Status of pension plans investing solely in employer 5. Sarbanes-Oxley legislation (2002) would require full disclosure – passed because of Enron 6. Question of relationship with political figures e.g. Enron was a major contributor to G.W. Bush 7. Misrepresentation of status as utility • • Founded in 1960 • In 1999, rumors emerge about “accounting troubles” • • Acquisitions were booked “creatively” to show a profit In 1992, Dennis Kozlowski became CEO. He became known as “Deal-a-day” Dennis. • By some accounts, between 1991 and 2001, Tyco buys more than 1000 companies. • • • Kozlowski was put on trial in 2004 for insider trading and inappropriate use of company funds. Kozlowski was forced in 2006 to return $600 million in company funds, and was sentenced to no less than 8 and no more than 25 years in prison Tyco continues today, and in spite of the problems had no serious cash-flow problems. Tyco filed to be broken into three companies on Jan 25, 2007 Issues 1. Insider trading 2. Creative accounting: from the same 1999 paper: “The bizarre case of industrial giant Tyco is one of the most curious in recent years. Again, a merger appears to be at the centre of this controversy. The acquisitions of U.S. Surgical and AMP Inc. were questioned for their value, with certain individuals claiming that the accounting practices of Tyco covered up a major loss on the acquisitions, thereby overstating the value of the shareholder’s equity. When this information was “leaked” to one Floyd Norris of the New York Times, he felt free to quote his source – a hedge fund trader who had “gone short” on Tyco in the belief that there were accounting irregularities. Naturally, the stock plunged in spite of efforts by analysts to show that there was no sign of irregularity. Tyco has not come back to its previous level as at the writing of this paragraph. Meanwhile, where is the SEC when you want them?” Barings Bank • • • Barings was founded in 1762 - oldest merchant bank in England Helped finance the Louisiana purchase (1802) Trades in futures in the name of the bank were forbidden in London – operations sent to Singapore • Unsupervised trader named Nick Leeson bet long on the Yen in 1995. Whoops!!! (Kobe earthquake) • Uses commingled funds to hide loss, tries to recuperate loss – but loses more • • Wife was in charge of accounting Lost 1.4 billion in futures - entire bank went under on Feb. 26, 1995. Leeson flees, is caught and gets 6.5 years in prison. Barings Bank Issues 1. Lack of Supervision 2. Regulatory avoidance 3. Abuse of Commingled Funds 4. Nepotism – wife doing the accounting Bre-X • • Founded 1989 by David Walsh Bought property in Indonesia said to have large gold reserves – up to 8% of total in the world • Stocks shot up in price from several pennies to $30.00 • Toronto Stock Exchange raced to put in on the TSE 300 • Found major vein in Indonesian property went from potential 30 m. oz (1995) to 300m oz. (1997). • Mar 19, 1997, geologist Michael de Guzman “falls” from a helicopter (shares now worth $280) • Mar 26, core samples turn out to be fake • • Billions lost – mostly pension funds. Walsh died 1998, Guzman’s wives claim to have received money as recently as 2005 Because the two main parties were dead, no charges Bre-X Issues 1. Misrepresentation 2. Regulatory Avoidance – Core samples not presented as per assay regulations 3. Insider Trading – principals traded stocks when they knew they were about to be found out Harvard Capital and Consulting • Started by Viktor Kožený during first voucher offering • Vouchers were issued to bid for shares of state-owned firms being privatized • Kožený has $15,000, but offers 10,000 CZK to anyone for their vouchers (1,000% return) • Kožený announces a General meeting in a small newspaper three days from the date , and requires notarized shares to participate • Few show up • Calls an Emergency meeting to approve a merger with Harvard Holdings, a Cypriot company • Management has quorum, and assets “disappear” into Harvard Holdings • Kožený disappears – wanted on warrant in Czech Republic and US • Also suspected of trying the same scheme in Azerbaijan in 1994 • Put on trial in June, 2010, found guilty – conviction & sentence (10 years & 10 B CZK) upheld 17/10/2012 Harvard Capital and Consulting 1. No regulatory framework 2. No set accounting procedure 3. Custodial practices 4. Misrepresentation 5. Fiduciary responsibilities neglected P.S. - Last word is that VK is in a prison in the Bahamas, Where he was arrested in 2005, released 19 months later, and will not be extradited to the US following a Privy Council decision March 2012 in claiming no jurisdiction. Bank of Credit and Commerce International (BCCI) • Founded in 1972 in Pakistan by Agha Hasan Abedi • Funded by Sheikh Zayed al Nayhan in Abu Dhabi (77%) • Funding also provided by Bank of America and (rumoured) CIA • Was presented as an “Islamic Bank” • Bought American banks to get into US market • Operated from London, with headquarters in Abu Dhabi • Made most money from “fees” e.g. transferring money to accounts in Switzerland • Also funded Bin Laden, Mujahadeen, CIA operations, Irangate • Was exposed during an inquiry by Sen Kerry looking into money laundering for drugs lords in Colombia • Lent $25m to Harken Energy in 1988 (Dir GW Bush) Bank of Credit and Commerce International (BCCI) - Issues 1. Set up a complex series of subsidiaries and controlled entities to avoid detection – see Enron 2. Hid behind the the idea that it was religiously-based 3. Used big names (Sheikh Zayed, Clark Clifford, Bert Lance) to enhance image of legitimacy 4. Was used by competing parties (CIA, Noriega, Iranians) 5. Commingling of funds – Sheikh Zayed’s Private Department and BCCI Pfizer • World’s largest pharmaceutical firm • Involved in gigantic mergers Warner-Lambert (2000), Pharmacia (2003), Wyeth (2009) • First case of price-fixing – 1958 • 1961 - Justice Department files criminal antitrust charges against Pfizer, 2 other cos. and top executives – Guilty 1967 • 1957 – denounced for using fictitious doctors to shill produc • 1991 – misleading claims - Plax • 1996 – misleading & unauthorized claims - Zoloft • 2000 – false & misleading advertising – Celebrex & Lipitor • 2003 –pays $6m to settle Zithromax scandal • 2004 – pays 430 million for bribing physician in Neurotin scandal, ordered to pay a further 142m in 2010 • • 2007 – Illegal marketing growth hormone Genotropin $34.7 m 2009 – pays 2.3 billion to settle criminal & civil charges in Bextra case • 2011 - settles 14.5 million in Detrol case • 2012 – removes claims in ads regarding breast & colon cancer to settle claim • 2012 – (Nov) takes $491 m charge for Rapamune • 1971 – today - has settled at least 9 environmental violations • 1999 – guilty in criminal anti-trust charges - $20m • 2002 – Forced to pay $49m for gouging on Lipitor • 2003 –Pfizeer tries too block supplies from Canada where • cheaper drugs are available • Criminal activity has increased over years with growth • Pfizer has paid massive fines • • • • Pfizer has also signed three Corporate Integrity Agreements with the US government which it does not respect As a corporate lobbyist, Pfizer is the 6th largest on Capitol hill Pharmaceutical and Health Care are the largest lobbying group on Capitol Hill The company is a repeat offender by any definition – cannot be jailed, and continues to make profits • How should such companies be dealt with? • Should a special category of offenders be established? Conclusion – Lessons Learned 1. Play by the rules 2. Deal with others who play by the rules 3. Not playing by the rules can be profitable… but 4. In the end, you will get caught…or 5. There will always be someone smarter than you are!!!