BUSI-1410: Strategy and Transformation Course Final Assignment: WorldCom case study Richard Meredith 000690770 April 2012 Contents Summary ................................................................................................................................................ 3 M&A case study: WorldCom Inc ............................................................................................................ 3 The key governance issues at WorldCom .............................................................................................. 4 Research questions ................................................................................................................................ 5 Academic theory .................................................................................................................................... 5 (a) Corporate Governance theory ................................................................................................ 5 (b) Corporate social, ethical and morality theory ........................................................................ 6 Application of theory at WorldCom....................................................................................................... 7 (a) Risk oversight .......................................................................................................................... 7 (b) Strategy ................................................................................................................................... 8 (c) Executive Compensation ......................................................................................................... 8 (d) Transparency ........................................................................................................................... 8 Conclusions ............................................................................................................................................ 9 Word Count .......................................................................................................................................... 10 Appendix: US Key Agreed Principles .................................................................................................... 11 Bibliography ......................................................................................................................................... 12 Summary The craft and execution of a Merger & Acquisition (M&A) strategy is a recognised and sustainable method to grow a firm (Drucker, 1981) (Trautwein, 1990). But is that also true if the two key executives responsible for the corporate strategy and an external market analyst/ investment banker have unprincipled business ethics and morals? What protections insure stakeholders? Is the societal environment a defining factor? This essay will examine these questions with a US case study of 1995-2002 WorldCom Executives Bernie Ebbers (CEO), Scott Sullivan (CFO), and telecoms market analyst at Salomon Smith Barney, Jack Grubman. Its purpose is to explore the mechanisms in the governance chain that should have prevented what happened at WorldCom. The underlying issue is whether the firm has broader societal obligations as well as an economic one of creating wealth for its owners. This essay will conclude that systemic checks and balances are no substitute for integrity in the senior agents of the shareholders in a US society that didn’t challenge people who appeared to embody the American Dream. M&A case study: WorldCom Inc Drawing on Malik (2003), Sidak (2003) , Gollakota & Gupta (2004), Zekany et al (2004), Boyd (2003), Sadka (2006), Advameg (2007), and Clarke (2007), the salient facts about this case study were as follows. Long Distance Discount Services (LDDS) Inc. was established as a private company in 1983 in Hattiesburg, Mississippi, when the breakup of regulated business of the national telephone Bell system opened the market to alternative carriers to sell discount long-distance telephone call routing to individual and business customers. After 2 years of losses, Bernard Ebbers (one of the initial investors) became CEO of LDDS and turned around the company and made it profitable in 6 months. The acquisition of LDDS’ first competitor took place in 1987 and five further M&As by 1989 had achieved an annual profit of $4.5m and access to business customers in the states of Alabama, Arkansas, Indiana, Kansas, Kentucky, Missouri, Tennessee , and Texas. One of these acquisitions turned LDDS into a public company and, through that change, Ebbers began a relationship with Wall Street financial analyst Jack Grubman, who endorsed and encouraged the M&A strategy at LDDS. Twenty five M&As later, in 1993, the firm’s network included all 48 mainland US states and was renamed LDDS-Metro Communications Inc. One of those acquisitions brought with it Scott Sullivan who became CFO of the company in 1994. In December 1994, IDB WorldCom was purchased and the named changed from LDDS-MCI to WorldCom Inc. At the same time, Jack Grubman joined Salomon Brothers. At the end of 1995, WorldCom turnover was $3.9b and it had debt of $3.4b and with the advent of internet and broadband, acquired MFS Communications in 1996 to be a pioneering Internet provider, outbidding British Telecom PLC to merge with Microwave Communications Inc (MCI). Thanks to recommendations by “independent” analyst Jack Grubman, shares in the company peaked at $64.50 in 1999. By 2000, WorldCom turnover was $39.1b; it had debt of $24.8b and had bought over 60 companies. By late 2001, US telecoms firms had added significant capacity in networks, based on the assumption of exponential world-wide demand for data traffic, and that their brand new networks would be needed to carry that data. This left the industry facing chronic overcapacity and overinflated revenue forecasts – made worse by a world economic downturn. In February 2002, Arthur Andersen LLP approved the 2001 WorldCom accounts. In March 2002, following a whistleblower report from the WorldCom head of Internal Audit, the US Securities and Exchange Commission (SEC) commenced an investigation into the accounting practices of WorldCom, including $400m personal loan to Ebbers collaterised by WorldCom stock. In June 2002, WorldCom admitted that its 2001 accounts needed to be restated because of accounting irregularities (eventually backdating much further and amounting to nearly $11b of irregularities). Trading in WorldCom's stock was suspended on 26th June 2002, SEC filed civil fraud charges against the company, Chapter 11 bankruptcy protection was filed, and as a result, 20,000 employees lost their jobs and shareholders (including many pension schemes) lost about $180b. In 2004, the company emerged from Chapter 11 bankruptcy protection in the name MCI and $5.7b in debt and $6b in cash. Sullivan received a 5 year sentence for securities fraud in return for testifying against Ebbers, who got 25 years. Jack Grubman was fined $15m and received a lifetime ban from securities transactions by the SEC (although he reportedly still had net worth of $75-100m after paying the fine). WorldCom’s auditors, Arthur Andersen paid $65 million in damages and WorldCom’s investment bankers Citicorp (parent of Salomon Brothers) settled for $2.65b for conflict of interest. The key governance issues at WorldCom The firm used (a) heroic and aggressive projections about consumer and business demand for telephony and internet and (b) fraudulent accounting methods to paint a false picture of financial growth and profitability to match Wall Street expectations, to which all top executive compensation and bonuses were dependent and whole company culture was geared. This was achieved with the explicit assistance of analyst Grubman, implicit poor auditing by Andersen, all overseen by a complicit Board (worldcomlitigation, 2003). The fraud was accomplished by withholding information and by underreporting costs and by inflating revenues with bogus accounting entries (breaching generally accepted accounting practices (GAAP)). The Internal Audit Function at WorldCom was kept away from finance audits by the CEO/CFO, who instructed them to focus on operational audits, and avoid working on anything that might overlap with the role of the external auditors, Arthur Andersen. Research questions What could have been done to prevent the fraud?. How could corporate ethics have played a part in this failure? What difference would have been if guidelines and directions on business ethics for corporate and accounting responsibility had existed at WorldCom in 1995-2002? Summing up what mechanisms in the governance chain that should have prevented what happened at WorldCom? Academic theory (a) Corporate Governance theory Economic theories focus on prices in a competitive market but treat the firm as a black box (Priem & Butler, 2001). Manne (1965) argued that these market forces were a key element of corporate governance, later echoed by Jensen (1986), and Walsh & Seward (1990). Shleifer & Vishny (1997) defined the means established by investors to assure themselves about the return on their investment as “corporate governance”. Agency theory has been at the centre of research about ownership and control of the firm and what owners should do to align the objectives of their various agents with wealth creation beyond leaving the pressures of competitive markets (Jensen, 1983), (Perrow, 1986). Relevant to the case study were that company directors do not always act in the shareholders’ best interest (Jense & Meckling, 1976) and those managers pursue their self-interests (Fama & Jensen, 1983). Eisenhardt (1989) reviewed academic work in the disciplines of accounting, economics, finance, marking, political science, organisational behaviour and sociology and concluded that agent theory should be considered as complimentary theory when examining the factors that influence the relationship between the principal and the agent(s). Hill & Jones (1992) extended agency theory to create a stakeholder-agency paradigm which encompassed the implicit contractual relationships between managers and stakeholders in general and not just shareholders. This is founded on the existence of a resource exchange relationship (Freeman, 1984) (Pearce, 1982). Within this implicit contractual relationship, each of the stakeholders supplies the firm with critical resources in exchange for their interests being met (March & Simon, 1958) and thus managers of the firm are agents of the stakeholders (principals), not just the shareholders (Hill & Jones, 1992). Pulled together into an overall a new stakeholder view of the firm and a sustainability evaluation and reporting system by Perrini & Tencati (2006). In that context, a stakeholder includes employees, regulators, suppliers, communities, clients, as well as investors/shareholders (Maignan et al., 2011). (b) Corporate social, ethical and morality theory Ever since two seminal books – by Barnard (1938) and by Bowen (1953), the academic world has been divided on the responsibilities of the firm to wider society. Garriga & Melé (2004) usefully classified the theories into groups - see figure 1. Instrumental theories • meeting objectives that produce long-term profits, the firm is an instrument for wealth creating and any social activities simply a means to that end • promoted by the likes of Friedman (1970) and Porter & Kramer (2002) Political theories • using business power in a responsible way, the firm is focused on interactions and connections between business and society and on the power and position of business and its inherent responsibility Corporate Constitutionalism and Corporate Citizenship • promoted by Davis (1960) and Donaldson (1982); Integrative theories • integrating social demands, the firm is focused on satisfying social demands • promoted by Ackerman (1973), Jones (1980) and Caroll (1991); Ethical theories • contributing to a good society by doing what is ethically correct, the normative core of ethical principles of the firm to society/stakeholders • promoted from Kantian, Rawlsian and Libertarian theories by Freeman (1984) and others Plus • human rights (Carroll, 1991) • sustainable development (Wheeler et al., 2003); • common good – global set of ethical principles (CRT, 2010) Figure 1: Source derived from Garriga & Melé (2004) Pae & Choi (2011) were among the first academics to examine corporate governance (CG) practices and business ethics (BE) in relation to the value of the firm (specifically how it affects the cost of capital). The financial crisis is Asia in 1997 stimulated significant financial economic and governance reform in Korea and this was considered to be a useful precedent for the collapses in arising just before and after the global financial crisis. Because investors considered that good index ranking for CG and BE reduced their risk in a Korean firm, this affected the present value of future expected cash flows. They concluded “The identification of the benefits of more comprehensive CG and BE justifies managers’ time and effort to improve CG and protect ethical values. Managers may allocate their scarce resources more efficiently to improve the long-run value of their company” (p342). Dyck (2001) considered that a formal governance chain has five links: (a) legal institutions to separate powers among executive, legislative and judicial authorities; (b) independent boards to monitor management, recruit executives, set compensation policy and handle dismissals (OECD (2004) recommended more independent directors on the main board and key activities); (c) legal institutions to require disclosure of information and accountability to investors; (d) financial organisations to monitor firms and be information intermediaries; (e) regulatory organisations. Nevertheless, there is no single or ideal model that has been created from the constantly evolving corporate governance theories. But the general standard is that the structures, processes and practices – or governance chain (Dyck, 2001) – should be designed specifically for the circumstances of the firm, cognisant of sets of territory, country, global guiding principles, the relevant laws and national and international standards. For example, United Kingdom opted for a principles-based approach, while the United States a rules-based approach emanating from the Sarbanes-Oxley Act 2002. Application of theory at WorldCom The analysis will focus on the US jurisdiction relevant to WorldCom (evidence and testimonies (FindLaw, 2004)), where corporate law provided for a fiduciary duty on directors to act honestly and in good faith and to avoid conflicts of duty and self interest while acting in the best interests of the corporation. But it will test retrospectively, applying the key agreed principles for US publicly traded companies (NACD, 2011) – see appendix – and use the structure of four areas expanded upon by NACD in a white paper (2009). (a) Risk oversight The NACD Standard for this aspect of governance is that the Board assigned risk oversight responsibilities, established risk identification procedures, evaluated risk models, and improved overall information flow. The Interim Report of the Bankruptcy Examiner revealed a pattern of failures to meet the fundamental stakeholder-agency paradigm (Hill & Jones, 1992), in that the agent (CEO) completely dominated the principal (board of directors) to the extent that “critical questioning was discouraged, and the Board did not appear to evaluate proposed transactions in appropriate depth, even though several members of the Board had a significant percentage of their personal wealth tied to the value of the Company’s stock.” (Thornburgh, 2002, p.7). The control environment was not robust and therefore weaknesses and risks were not identified/ranked and mitigated. For example (a) inadequate segregation of duties in the finance function in respect of reconciliation and journal preparation and reviews; (b) lack of rigorous monitoring of the internal control system by internal audit; (c) the procedures for external audit did not match the risk profile that Andersen has assessed for the company (Thornburgh, 2002, p.7). (b) Strategy The NACD Standard for this aspect of governance is that the Board has the right information to help the firm successfully plan its way through the marketplace - to help management determine how the company should react in response to the information, over short, medium, and long term timeframes. There was no strategy (Mintzberg & Waters, 1985). “WorldCom grew in large part because the value of its stock rose dramatically. Its stock was the fuel that kept WorldCom’s acquisition engine running at a very high speed. WorldCom needed to keep its stock price at high levels to continue its phenomenal growth. WorldCom did not achieve its growth by following a predefined strategic plan, but rather by opportunistic and rapid acquisitions of other companies. The unrelenting pace of these acquisitions caused the Company constantly to redefine itself and its focus. The Company’s unceasing growth and metamorphosis made integration of its newly acquired operations, systems and personnel much more difficult. This dramatic growth and related changes also made it difficult for investors to compare the Company’s operations to historical benchmarks” (Thornburgh, 2002, p.6). There is no evidence of systematic consideration of all possible external forces (Political, Economic, Social, Technological, Environmental, or Legal) before setting aggressive targets. Economic conditions were not considered when implementing aggressive accounting measures. The industry competition was in decline. The firm’s unit where acquisition due diligence was undertaken (Corporate Development) was never subject to an Internal Audit. (c) Executive Compensation The NACD Standard for this aspect of governance is of independence of the compensation committee and its advisors, and more proactive shareholder communications. “The Compensation and Stock Option Committee of the Board of Directors seemed largely to abdicate its responsibilities to Mr. Ebbers. It approved compensation packages that appear overly generous and disproportionate to either the performance of the Company or competitive pressures” (Thornburgh, 2002, p.7). The Directors authorised personal loans that totaled $400m to the CEO, secured against plummeting stock value. The culture and incentives led to dishonest, illegal and unethical activities - focus was put on employees to behave as a strong “team player”, with the CEO reviewing the names of all stock sales and taking a dim view of any staff he found to have exercised their right to sell. This was a tactic to reduce dissenting opinions, and to a patriarchal “groupthink” organisation. Examples of this were absolute discretion to the CEO on a $240m bonus program in 2000. The CFO gave $10k to several employees and their spouses in the Finance and Accounting Department. (d) Transparency The NACD Standard for this aspect of governance is of corporate transparency through a combination of increased communication and legal protections. “WorldCom's conferral of practically unlimited discretion upon Messrs. Ebbers and Sullivan, combined with passive acceptance of Management’s proposals by the Board of Directors, and a culture that diminished the importance of internal checks, forward-looking planning and meaningful debate or analysis formed the basis for the Company’s descent into bankruptcy” (Thornburgh, 2003, p.12). There was no evidence of independent review of financial reporting controls and CEO and CFO knowingly reported information to their stakeholders, including employees and shareholders that lacked GAAP authority and integrity. They communicated false targets and outcomes to Wall Street to ensure the stock price of WorldCom continued to escalate and consequently decided to use a wide range of accounting measures to meet these targets. Internally, communication was poor “Mr. Ebbers ran WorldCom as if it were a “7-11”” (Thornburgh, 2003, p.72). Conclusions The purpose of this essay was to explore the mechanisms in the governance chain that should have prevented what happened at WorldCom. The analysis shows the legal institutions to separate powers among executive, legislative and judicial authorities in US were in place. The requirement for independent boards to monitor management, recruit executives, set compensation policy and handle dismissals were in place but failed because of too much deference to two executives with a significant imbalance in incentives. The legal institutions requiring disclosure of information and accountability to investors were in place, but the checks and balances failed to correct two unethical/fraudulent execs with unlimited power. The financial and regulatory organisations to monitor firms and be information intermediaries were in place, but again the checks and balances failed to correct two unethical/fraudulent advisers/auditors with unlimited power . So many aspects of the formal governance chain (Dyck, 2001) were in place, but human failing caused many links to all fail at the same time and the systemic checks that the governance chain provided were unable to detect that the senior agents of the shareholders had lost their integrity. Suppliers will have suspected. Employees will have suspected. Community via ex-employees and of acquired firms and family members will have suspected. But wider US society had for too long celebrated the key offenders as people who embodied the spirit of the American Dream. On balance, therefore, it is considered that no new mechanisms in the governance chain could have prevented what happened at WorldCom. It is therefore fitting to find the former Chief Legal Officer of GE (Heineman, 2008) argue that Boards must look for a new higher standard of CEOs – those who demonstrate they have high personal integrity and a deep cultural commitment to achieve high performance with high integrity. To conclude, two quotes from the Bankruptcy Court Examiner provide the grounds for considering that this case study was about circumstances rather than system. “When Arthur Andersen was replaced by KPMG as the Company's external auditors, a former Arthur Andersen engagement partner who had accepted a position as a partner at KPMG reassured Mr. Sullivan that he would continue to "monitor" the engagement "from a distance to make sure the engagement [was] conducted to [Mr. Sullivan's] satisfaction" even though he no longer participated on the engagement based on SEC rules requiring rotation from the engagement after 7 years. He reminded Mr. Sullivan that, in the past he had been able to "work" his reviewing partners "hard" in order to get "good" answers on accounting questions that needed to be reviewed by partners in Arthur Andersen's National practice office in Chicago. He committed to doing the same at KPMG once he got to know the KPMG team, and to eventually return to the engagement in two years as the "lead partner." KPMG categorically rejected these reassurances to Mr. Sullivan once the new KPMG engagement partner learned of them. The former Arthur Andersen partner is no longer with KPMG” (Thornburgh, 2003, p.208). “In many significant respects, WorldCom appears to have represented the polar opposite of model corporate governance practices during the relevant period. Its culture was dominated by a strong Chief Executive Officer, who was given virtually unfettered discretion to commit vast amounts of shareholder resources and determine corporate direction without even the slightest scrutiny or meaningful deliberation or analysis by senior Management or the Board of Directors. The Board of Directors appears to have embraced suggestions by Mr. Ebbers without question or dissent, even under circumstances where its members now readily acknowledge they had significant misgivings regarding his recommended course of action. Moreover, the Directors unquestioningly complied with Mr. Ebbers’ requests, even when it became apparent that his deteriorating personal financial situation imperiled the Company and greatly undermined their confidence in him. Although the absence of internal controls and the lack of transparency between senior Management and the Board of Directors at WorldCom does not directly translate to the massive accounting fraud committed by the Company, the Examiner believes these corporate governance failings fostered an environment and culture that permitted the fraud to grow dramatically and ultimately propelled the Company’s descent into bankruptcy. A culture and internal processes that discourage or implicitly forbid scrutiny and detailed questioning can be a breeding ground for fraudulent misdeeds. It also can beget ill-considered and wasteful acquisitions, improperly managed and unchecked debt and poor credit management, a lack of due diligence regarding personal loans made by the Company to its Chief Executive Officer, sales of Company stock by the Chief Executive Officer that contravene WorldCom policy and possibly the federal securities laws, and an effective neutering of other gatekeepers, such as the lawyers, Internal Audit Department and the Company’s outside auditors. In tandem with the accounting irregularities, these developments fostered the illusion that WorldCom was more healthy and successful than it actually was throughout most of the relevant period. Ultimately, they also produced the largest bankruptcy in the history of the United States”. 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