SEC’s anti-investor vote a disservice to shareholders
December 2nd, 2007NEW YORK: In recent months, owners of many financial stocks have lost billions because the directors who represent them were clueless about risky mortgage operations or toxic loans held by their companies. Then last week, shareholders lost the only shot they had at firing incompetent directors when the Securities and Exchange Commission voted to prevent investors from nominating their own board candidates.
After the SECs vote, shareholders of Merrill Lynch, Bear Stearns, E*Trade Financial and others will have the same directors at the wheel who drove them off the cliff this year.
The anti-investor vote took place Wednesday. The SECs board is supposed to be nonpartisan; two commissioners represent Republicans and two represent Democrats. (The chairman is appointed by the president.) One Democratic seat is vacant.
The two Republican appointees - Paul Atkins and Kathleen Casey - voted with the Business Roundtable and the U.S. Chamber of Commerce on the issue. The lone Democratic commissioner - Annette Nazareth - opposed the move to keep owners from choosing board representatives. Sadly, she has announced plans to leave the commission.
Nazareth did not mince words last week. “I do not see a principled way to vote for the non-access release and claim to be supportive of shareholder rights in the longer term,” she said when the vote was announced.
Christopher Cox, the SEC chairman, could have supported shareholders as well, ensuring a tie vote that would have meant no action at all. That would have allowed shareholders to nominate directors through proxy proposals, as they have been able to do this year after a 2006 appellate court ruling in a case involving the American International Group and the American Federation of State, County and Municipal Employees pension fund.
The only way owners could nominate corporate directors before the AIG ruling was to mount costly proxy battles.
Politician that he is, Cox maintained that the vote was a temporary measure and that the commission would revisit the issue. The argument found few buyers.
“Chairman Cox has shown his true colors; he is not looking out for the investor,” said Richard Moore, the treasurer of North Carolina, who oversees pension funds with $87 billion invested.
Certainly the losses generated over the past few months by major financial firms indicate that something is very wrong with the boards of these companies. These directors either knew of the risks their managers were taking and blessed them, did not know of them at all or were advised of them and were unable to rein in the executives in charge.
Moore noted that these boards happily paid enormous sums to executives when mortgage desks were coining money.
“This is post-Enron, when boards should have understood that you cannot base compensation on short-term profits alone, and yet they continued to sign executive employment agreements with no claw-back provisions,” he said. “That to me is a per se breach of fiduciary duty.”
A look at boards of companies with some of the biggest write-downs shows few members with expertise in mortgage trading or even in the securities business.
Outside directors at Bear Stearns include two university presidents, a former Toys “R” Us chief executive, a former Verizon chief financial officer, private investors, a former law partner and an oil company executive.
A Bear Stearns spokesman said: “Like most boards, we have a whole range of expertise - business, finance, trading, accounting, legal, charitable - and where necessary we bring in both internal and external experts to discuss company issues.”
At E*Trade, Michael Parks, managing director of the leveraged finance unit of Trust Company of the West, must have had a grasp of the risk in its mortgage business, as may have been true for Ronald Fisher, vice chairman of Softbank Holdings.
C. Cathleen Raffaeli, a managing partner of a business development advisory firm, was also a director of American Home Mortgage Holdings; it filed for bankruptcy in August.
But alongside those directors were Krispy Kremes chief executive; a private investor; the chief executive of Flamel Technologies; the chairman of MxSecure, an Internet-based health care technology company; and a partner at a consulting firm.
An E*Trade official did not respond to requests for comment.
Frederick Rowe Jr., money manager at Greenbrier Partners in Dallas and president of Investors for Director Accountability, said the Merrill board is diverse and politically correct but lacks the experience for the complex financial world. Outside directors include Chubbs chief executive, a former U.S. ambassador to China and a co-founder of the Center for Adoption Policy.

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