The Biggest Changes in Banking Since 1993


acquire-1-25-19.pngWhen Bank Director hosted its first Acquire or Be Acquired Conference 25 years ago, Whitney Houston’s “I Will Always Love You” held the top spot on Billboard’s Top 40 chart.

Boston Celtics legend, Larry Bird, was about to retire.

Readers flocked to bookstores for the latest New York Times best seller: “The Bridges of Madison County.”

Bill Clinton had just been sworn in as president of the United States.

And the internet wasn’t yet on the public radar, nor was Sarbanes Oxley, the financial crisis, the Dodd-Frank Act, Occupy Wall Street or the #MeToo movement.

It was 1993, and buzzwords like “digital transformation” were more intriguing to science-fiction fans than to officers and directors at financial institutions.

My, how times have changed.

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When we introduced Acquire or Be Acquired to bank CEOs and leadership teams a quarter century ago, there were nearly 11,000 banks in the country. Federal laws prohibited interstate banking at the time, leaving it up to the states to decide if a bank holding company in one state would be allowed to acquire a bank in another state. And commercial and investment banks were still largely kept separate.

Today, there are fewer than half as many commercial banks—of the 10 banks with the largest markets caps in 1993, only five still exist as independent entities.

It’s not only the number of banks that has changed, either; the competitive dynamics of our industry have changed, too.

Three banks are so big that they’re prohibited from buying other banks. These behemoths—JPMorgan Chase & Co., Wells Fargo & Co. and Bank of America Corp.—each control more than 10 percent of total domestic deposits.

Some people see this as an evolutionary process, where the biggest and strongest players consume the weakest, painting a pessimistic, Darwinian picture of the industry.

Yet, this past year was the most profitable for banks in history.

Net income in the industry reached a record level in 2018, thanks to rising interest rates and the corporate tax cut.

Profitability benchmarks in place since the 1950s had to be raised. Return on assets jumped from 1 percent to 1.2 percent, return on equity climbed from 10 percent to 12 percent.

Nonetheless, ominous threats remain on the horizon, some drawing ever nearer.

  • Interest rates are rising, which could spark a recession and influence the allocation of deposits between big and little banks.
  • Digital banking is here. Three quarters of Bank of America’s deposits are completed digitally, with roughly the same percentage of mortgage applications at U.S. Bancorp completed on mobile devices.
  • Innovation will only accelerate, as banks continue investing in technology initiatives.
  • Credit quality is pristine now, but the cycle will turn. We are, after all, 40 quarters into what is now the second-longest economic expansion in U.S. history.
  • Consolidation will continue, though no one knows at what rate.

But it shouldn’t be lost that certain things haven’t changed. Chief among these is the fact that bankers and the institutions they run remain at the center of our communities, fueling this great country’s growth.

That’s why it’s been such an honor for us to host this prestigious event each year for the past quarter century.

For those joining us at the JW Marriott Desert Ridge outside Phoenix, Arizona, you’re in for a three-day treat. Can’t make it? Don’t despair: We intend to share updates from the conference via BankDirector.com and over social media platforms, including Twitter and LinkedIn, where we’ll be using the hashtag #AOBA19.

Clawbacks Are Coming. Are You Ready?


clawbacks-8-1-16.pngFive years after the passage of Section 954 of Dodd-Frank adding new provisions on clawbacks, we expect the Securities and Exchange Commission (SEC) to make some minor adjustments to its proposal and adopt a final rule before summer’s end.

The proposal, which would amend Section 10D of the Securities Exchange Act of 1934, shifts responsibility for recouping excess compensation from the SEC to the registrant, creates a non-fault standard as opposed to the Sarbanes-Oxley “misconduct” standard, extends the clawback period to three years and significantly expands the number of executives subject to its reach. Almost all issuers publicly registered with the SEC, including smaller reporting companies and current or former executive officers, are covered. Small and emerging companies, which previously were exempt under Reg SK from making detailed compensation disclosures, will shoulder a disproportionate burden.

Which Officers Are Subject to Section 10D Clawback?
Unlike Sarbanes-Oxley, which only applies to the CEO and CFO, the proposal uses the definition of executive officer from Rule 240.16a-1. It includes principal officers as well as any vice president in charge of a principal business unit, division or function and any other persons who perform similar policy-making functions for the registrant.

What Triggers a Clawback?
The law requires that the company recoup excess compensation received during the three-year period prior to the date the issuer is required to prepare an accounting restatement. Again, unlike Sarbanes-Oxley, no misconduct or error on the part of the executive need be shown. The accounting restatement is the triggering event.

What Type of Compensation Is Subject to the Rule?
The proposed rule applies to all “incentive-based compensation,” which is defined as any compensation that is granted earned or vested based wholly or in part upon the attainment of any “financial reporting measure.” A financial reporting measure is defined to mean any measure derived wholly or in part from financial information presented in the company’s financial statements, stock price or total shareholder return. This is an expansion of the language of Dodd-Frank which states that the law applies to incentive-based compensation that is based on financial information required to be reported under the securities laws. The proposed rule excludes by its terms salaries, discretionary bonus plans, time-based equity awards or other payments not based on financial reporting measures, including strategic or operational metrics.

What Is Excess Compensation?
Excess compensation is defined to be erroneously awarded compensation that the officer receives based on erroneous information in excess of what would have been received under the accounting restatement. Examples include unexercised options, exercised options with unsold underlying shares still held and exercised options with underlying shares already sold. Similarly, all excess stock appreciation rights and restricted stock units awarded must be forfeited and if already sold, any proceeds returned to the company. The clawback would also apply to bonus pools and retirement plans based on the attainment of financial metrics. What should be emphasized is the law and proposed rule leave almost no discretion to the company. Clawback is mandatory except in cases where the pursuit of recovery would be futile or counterproductive.

What Is the Tax Consequence of a Clawback?
What is particularly troublesome is the tax complications. The most common problem is likely to be that the employee will be taxed fully on the original income. When income is paid back in a different tax year, it will be treated most likely as a miscellaneous itemized deduction and its full deductibility will be subject to whether the taxpayer has sufficient deductions to equal or exceed the 2 percent threshold of adjusted gross income. A clawback could have the effect of penalizing the employee through no fault of his own beyond the amount received.

How Should a SEC Registered Bank Adjust Its Compensation Approach?
Banks which may qualify to deregister should consider it. For companies that desire to remain registered or who have no alternative, then executives should consider purchasing insurance products with their personal funds to hedge against an unexpected loss of income already earned and spent. The SEC rule does not permit the issuer to indemnify or purchase insurance for the executive to cover clawbacks. What is unfortunate is that onerous rules governing circumstances out of the control of most executives only makes performance-based incentive compensation less desirable.

What To Do When Your Board Gets a Complaint


Both the Sarbanes-Oxley Act and later, the Dodd-Frank Act, contain provisions protecting whistleblowers reporting violations of securities laws, and in fact, the Dodd-Frank Act seems to encourage such reporting with well defined monetary rewards for complaints leading to successful fines against a company. In September of 2014, an unnamed whistleblower was awarded a $30 million grant.

In light of a recent $30 million whistleblower award and the Dodd-Frank Act encouraging more people to report problems at their companies to the government, how should a bank board handle a whistleblower claim?

Dailey-Michael.pngFirst, have a whistleblower policy/program in place, now, so that if/when a claim arises, the board is prepared to handle it effectively, appropriately and lawfully.  All employees should be trained on the policy and encouraged to report up the chain, pursuant to the policy, any corporate misconduct they discover. It is far better in the end if the bank self-discovers and remedies the problem, than if the government does it for you. Second, work hard to maintain the confidentiality of the whistleblower. Maintaining confidentiality, and even anonymity, helps to ensure no retaliatory action is taken against the reporting employee. At all costs, avoid retaliation. Finally, conduct an independent internal investigation, and do so with the understanding that the reported misconduct could lead to criminal and/or civil litigation. Engage your legal counsel early in the process to ensure preservation of evidence and legal privileges.

—Michael Dailey, Dinsmore & Shohl LLP

DonaldLamson.pngBanks should handle possible whistleblower complaints very seriously.  Regulatory agencies have shown a more severe response to banks over the last few years and whistleblower complaints can reinforce a perception, however inaccurate, that some banks do not have a proactive approach to compliance issues generally. Banks should have procedures for dealing with such claims and allow employees to air their concerns without fear of reprisal. Some may wonder whether this approach may encourage the raising of false claims, but at least banks would have an opportunity to triage employee concerns and demonstrate that they take those concerns seriously.

—Donald N. Lamson, Shearman & Sterling LLP

KathleenMassey.pngBank boards should authorize their audit committees to handle complaints concerning securities law violations.  An audit committee’s charter should make clear that the committee may retain appropriate advisors to investigate such complaints. The board should also ensure that management promulgates guidance for internal reporting on violations. Employees should be encouraged to report violations to appropriate representatives of the compliance, internal audit or legal staff. Recipients of complaints about violations should be instructed to forward them to the chairperson of the audit committee. Upon receipt of a complaint, the chairperson should ensure that it is investigated thoroughly.  If no violation is found, the complainant should be so informed within 120 days after the complaint was made. If a securities violation is found, the bank should decide whether to report the violation to the Securities and Exchange Commission. A report to the SEC should be made within 120 days after the complaint was made.

—Kathleen N. Massey, Dechert LLP

Jonathan-Wegner.jpgBoth public and private banks have potential exposure to Dodd-Frank and Sarbanes-Oxley   whistleblower claims. Therefore, a bank should have proper compliance and anti-retaliation policies in place (reviewed regularly) setting forth behavioral expectations, encouraging reporting, and establishing protocols for handling reports. The bank should also designate a team to investigate and respond to reports. All employees should be thoroughly trained regarding these policies and, in particular, managers should be trained to identify when an employee is reporting and the need to escalate the report within the organization, as many employees do not use “hotlines” or Internet-based reporting mechanisms. Most important, the bank’s senior leadership must lead by example. Senior leadership needs to sincerely and repeatedly promote the virtues of the bank’s compliance, ethics and code of conduct policies.  Reporting questionable conduct, no matter how insignificant, must be genuinely encouraged. And finally, senior leaders must demonstrate integrity in all that they do.

—Jonathan J. Wegner, Baird Holm LLP

Kaslow-Aaron.pngWhistleblower complaints need to be treated seriously. Avoid the temptation to view all whistleblowers as disgruntled employees who are asserting claims against innocent individuals to further their own selfish goals. Failure to promptly address a legitimate complaint will only exacerbate the problem. Regulators look favorably on companies that take prompt action and see them as having strong and effective management. The opposite is true for companies that are unresponsive or hostile to employees’ concerns. Plus, treating whistleblower complaints seriously sends the message that employees will be treated fairly and sets a tone at the top that should foster stronger ethical behavior within the company. The board needs policies and procedures for investigating whistleblower complaints and coordinating corrective action and must communicate them to employees. Doing so will create the conditions necessary for the effective management of whistleblowing.

—Aaron Kaslow , Kilpatrick Townsend & Stockton LLP

Old is New Again: Independence vs. Independent Judgment


thinking.jpgBankers are routinely inundated with “alerts” and “updates” from advisors setting forth current developments in the law as it applies to banks and their business.  As authors and recipients of such updates, we understand your pain, but also believe the information conveyed is critical to making informed decisions. However, every so often (now for instance), it’s important to reevaluate established practices and procedures to make sure we’re not forgetting something important.

As we approach year-end, it’s time to focus on compensation-related matters (yes, it’s that time of year already). In just a few weeks, many of us will be gathering in Chicago for Bank Director’s annual Bank Executive & Board Compensation Conference. No doubt, there will be much discussion surrounding the ever-increasing depth and breadth of laws, rules and regulations applicable to the banking industry generally and, in particular, compensation arrangements for directors and executives. But after a few years of focusing on the concept of risk, in all its glory, it’s likely there will be a fair amount of focus on independence this year. Over the summer, the Securities and Exchange Commission (SEC) announced its rules under the Dodd-Frank Act relating to compensation committee independence and, within the last few weeks, the New York Stock Exchange and NASDAQ OMX issued their own rules on independence as required by the SEC.

Independence and Dodd-Frank

The concept of independence for compensation committees—which underlies Dodd-Frank Act §952—is not a new one. The specific Dodd-Frank Act rules might be new, and will require study and may result in changes to your existing practices and procedures, but the concept of independence is familiar and worth revisiting. The rules will require that compensation committee members be independent and have access to independent advisors. What is left unsaid is that the information garnered from those independent advisors should be the basis for—not the end of—independent thought by independent directors. Independent advisors are not a substitute for independent judgment.

Sarbanes-Oxley Act of 2002 (SOX)

This year marks the 10-year anniversary of the SOX. It was enacted in response to the corporate and accounting scandals that came to light around 2002 (Enron, Tyco and WorldCom, just to note a few).  SOX focused on corporate responsibility and oversight of the accounting industry. At its root, however, were a few familiar ideas, that a public company have an audit committee, all members should be independent, should have access to independent advisors (auditors should be independent) and should exercise independent judgment.

Global Financial Crisis of 2008 & Risk Assessment

Six years after SOX, the world experienced the global financial crisis. One of the congressional reactions to this crisis was the enactment of the Dodd-Frank Act. The Dodd-Frank Act put the focus squarely on risk assessment of compensation plans. Bank regulators and the SEC reminded us that risk assessment in connection with compensation plans was not a new concept. Banks (and other entities) were directed to mitigate unreasonable risk in compensation programs wherever it was found. There was a focus on risk itself, risk mitigation, risk policies, claw-back of incentive compensation (incentive compensation that may have led to excessive risk-taking) and so on.

Lack of independence on the compensation committee was rightly perceived as a potential risk. To mandate the mitigation of this risk, the Dodd-Frank Act directed the SEC to enact rules, through the exchanges, that would require public companies to ensure their compensation committees are independent with uninhibited access to independent advisors to assist them in the discharge of their duties. Again, the rules may be new, but they are focused on a familiar concept—independence.

This brings us back to the alerts, updates, conferences, seminars and the seemingly infinite sources of industry information. All of the information you obtain, regardless of the source, is of no use unless it’s put to work in an independent decision-making process. Advisors will help to educate you, but it’s up to your board members to exercise independent judgment.

Focusing on What’s Important to the Audit Committee: Three Things That Should Be on Everyone’s Mind


magnifying.jpgAfter the passage of the Sarbanes-Oxley Act, audit committee members experienced an increase in the intensity of the spotlight the public and regulators placed on them—and the focus didn’t just affect public companies. The current financial crisis again has put a spotlight on the responsibilities that all boards and audit committee members face. Although audit committees are actively engaged with their management teams and internal and external auditors, it can be difficult to know what should be the focus of those ongoing discussions.

So what are the things that audit committees should be thinking about today? Highlighted here are three of the critical risk areas that audit committees should have on their minds.

1. Earnings and Growth Plans: Early Assessments of the Risks

The credit challenges and related complications of the financial crisis are improving for many banks. Management teams are focused on returning to sustainable profits. Lending groups are actively looking to build their portfolios, and management teams are considering new products and services and expanding existing programs.

Audit committees need to be aware of the strategies their organizations are considering and of the associated risks. Internal audit should be auditing those risks. Whether a bank is considering resurrecting an old lending strategy or launching a new product or service, early action by the audit committee and internal audit will safeguard the organization. Audit committees and internal audit should work to understand their organization’s initiatives, limits and controls, and understand the risk monitoring that exists at their institutions.

2. Compliance: Effective, Efficient, and Critical for Survival

Compliance doesn’t always seem like the most strategic topic, but a lack of compliance can have consequences that quickly become strategic. Consumer regulations have changed significantly over the past few years, and more changes are on the horizon as the regulatory focus on consumer compliance has increased noticeably.

Audit committees should understand not just the details of compliance for individual regulations, but the compliance program itself. Having a robust system in place to identify changes, assess the enterprise-wide effects, and respond effectively is the only way that ongoing compliance can be achieved. Internal audit cannot just rely on management monitoring systems; it must perform independent testing of the compliance program and of compliance risks. Audit committees should understand the risk assessment process and internal audit’s coverage approach with respect to consumer compliance, and they should be comfortable that the compliance program will produce consistent and efficient results across all regulations and lines of business.

3. Enterprise Risk Management: Present, Comprehensive, and Insightful

Enterprise risk management (ERM) has been a topic of conversation for many years, but the level of discussion within banks and regulatory examinations is greater today in light of the financial crisis. Companies need an ERM process that is designed to address all risks across an organization and that provides meaningful information to executive management and the board. In addition, in response to the Dodd-Frank Wall Street Reform and Consumer Protection Act, which requires a board-level risk committee for firms with more than $10 billion in consolidated assets, examiners sometimes are asking much smaller organizations to put programs in place that include board-level oversight.

Audit committees should understand their bank’s ERM program, and internal audit should evaluate its effectiveness. Questions to consider include: Does a program already exist, and, if so, who owns the program? Are the right people involved? Do the results prompt the right discussions (are the company’s biggest risks part of the conversation)? Do the board and executive management support the process and the outcomes?

The goal of ERM is not to simply to comply with a regulatory mandate, but to establish a disciplined process whereby the most significant risks are summarized for insightful discussion and response. As it does with all critical areas of its bank, an audit committee must make sure that the ERM function exists and that it is operating as intended.

Having confidence in the quality and scope of the internal audit function should be a priority for any bank’s audit committee. Though the three critical areas discussed above are not exhaustive, they represent some of the larger issues facing banks today. Ongoing changes are inevitable. Adding specific consideration of changing risks—and potential changes to audit plans—could be a useful topic for audit committees to add to their agendas.

Whatever happened to the small-cap IPO? Capital Markets and the Impact on Community Banks


dead-king.jpgFor decades in this country, the vast majority of Initial Public Offerings (IPOs) were for companies raising $50 million or less.  Smaller public companies, including community banks, could thrive in the public markets, with equity research coverage and retail brokers driving investor interest in growth-stage companies.  However, in recent years, the market structure changed and the public markets became inhospitable to smaller public companies.

Today, thousands of public companies—including many community banks—are simply ignored by investors in the public markets.  Investors in these companies have discovered that the stock rarely trades or simply does not trade.  These companies essentially endure all of the costs and burdens associated with the public markets without experiencing the benefits. 

So what happened?  Industry observers point to a series of events over the past 15 years that have effectively killed the small company IPO:   

Sarbanes-Oxley Act – The legislation is a popular punching bag in Washington and often blamed for the lack of IPOs; however, many observers believe it is not the most significant factor in companies electing to remain private.  Nonetheless, corporate compliance with the Sarbanes-Oxley Act has certainly increased costs for public companies, particularly smaller ones. 

Online Brokers – Although the introduction of online brokerages helped to make trading less expensive, these online brokers replaced retail brokers who helped buy, sell and market small-cap public companies to investors.  Stockbrokers collectively made hundreds of thousands of calls per day to their clients to discuss under-the-radar small-cap equity opportunities.    

Decimalization – Stock prices used to be quoted in fractions (e.g., the price of Company A was 10¼ or 10½).  The difference between fractions created profit for firms providing market making, research and sales support.  When the markets began quoting prices in dollars and cents, trading spreads were reduced and profits were significantly cut.  It became unprofitable to cover small-cap equity because there was inadequate trading volume in the small-cap companies. 

Global Research Settlement – After decimalization began, in an effort to continue writing research reports, Wall Street began funding research with investment banking profits.  Not surprisingly, conflicts of interest emerged and positive equity reports began to be written for undesirable companies.  State attorneys general got involved and ruled that investment banking divisions could not pay research analysts.  The result was that it once again became unprofitable to cover small-cap companies and research reports stopped being written.

High-Frequency Trading – Although high-frequency traders bring significant liquidity to the public markets, they require the volume and velocity that can only be found in trading stock of larger public companies.  As a result, high-frequency traders essentially ignore small-cap companies because there is insufficient liquidity in small companies to support high-frequency trading objectives. This trend is particularly damaging as a recent report stated that high-frequency traders conduct nearly 75 percent of the trades in the U.S. equity market– thus three-quarters of the public markets ignore small-cap companies.  

Taken in the aggregate, these (and other) factors have made the public markets undesirable, even hostile, for small companies

As a result, the public markets no longer provide the solution for investors who need liquidity, and the systemic failure of the U.S. capital markets to support healthy IPOs inhibits our economy’s ability to create jobs, innovate and grow.  For community banks, it has a significant impact on their ability to attract capital and lend money to small businesses which, over time, will disadvantage these banks and damage their local communities.   

Clearly, a new, stronger growth market must emerge.

We’ve been through this before: Corporate governance ratings don’t work


Following the S&L crisis twenty years ago, a number of banking trade organizations, usually in association with a directors and officers liability (D&O) insurance company, trotted out the idea that directors should be accredited. Banks were told that if they sent their boards to special programs on corporate governance, the directors would be accredited and this would save the bank money on D&O policies. The organizations then offered the accreditation programs and made money on them. And if the D&O was placed with the preferred insurance company, the association made a finder’s fee.

However, D&O insurance is a hand written policy, so a discount on your policy is not transparent. It is like getting a discount on a house or a used car. In a negotiated process, how would you be able to tell what kind of discount you actually got?

D&O prices are determined by an underwriter who tries to anticipate how likely it is that you or your bank will be sued. If your bank recently merged, had its CAMELS rating take a beating or saw an ugly drop in the value of its shares, the underwriter either will not write it or charge a great deal of money to cover you. The board’s accreditation won’t affect the price.

The accreditation and corporate governance rating concept was recycled right after Sarbanes Oxley passed in 2002 when Institutional Shareholder Services (ISS, which is now part of MSCI) created a corporate governance rating for publicly traded companies.  ISS then asked the same companies to pay them a consulting fee through its RiskMetrics brand to figure out how to improve their corporate governance. Since ISS voted a great number of shares for institutional investors, companies paid more often than they would publicly admit.

MSCI is changing this business model because it failed to have predictive value in the latest crisis. In fact, as reported by the Huffington Post: “Exactly fourteen days before Lehman Brothers Holding[s], Inc. filed for bankruptcy in September 2008, ISS gave Lehman a corporate governance rating of 87.6 percent, meaning that Lehman’s corporate governance in ISS’ view was better than 87.6% of other diversified financial companies. ISS also doled out generous ratings to other ailing financial companies such as Washington Mutual, which was rated by ISS as being ‘better than 44.3% of S&P 500 companies and 95.6% of [b]ank companies’  just weeks before it’s [sic] undoing. And if that was not enough, a few days before AIG scurried to put together an emergency loan, ISS rated AIG as being ‘better than 97.9% of S&P 500 companies and 99.2% of [i]nsurance companies.’”

Our partner Bill Seidman used to say: “When the tide goes out you get to see who was swimming without their shorts on.” The tide went out and corporate governance ratings took a beating.

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There is a big difference between accreditation and education. Educated boards are stronger boards.

Right now, if I were serving on a bank board I would be drilling into the issues that really affect the health of the bank. I would be asking about our strategic plan around the coming wave of M&A and if we had a firm idea of what the bank was worth. I’d want to hear what the regulators are saying about our bank and how the Dodd-Frank Act might affect our institution. I would focus on how we pay our people, especially the CEO and the top five key leaders, and how we are developing our bench. I would want to hear about pockets of opportunity for lending and how much we know about our customers. I would attend highly focused programs, talk to my director peers and talk to auditors, lawyers and consultants that work with banks regularly to identify the coming challenges and opportunities. And of course I would read Bank Director. (Yes, that is a plug for our magazine).

I think that a toolbox of information for a board is far better that a one-time, one-size-fits-all accreditation process that focuses on corporate governance in a traditional sense.