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Wells Fargo: What Should Have Happened

wells-fargo

When Wells Fargo fired 5,300 employees in September for inappropriate sales practices, then-CEO John Stumpf approached the scandal with an outdated playbook. In response to the $185 million in fines levied by regulators, he first denied any knowledge of the illegitimate accounts. Attempting to mitigate press fallout by distancing the company from a group of “bad eggs” acting independently is not the answer, however. Even if Stumpf had maintained this assertion of innocence, changes in the risk environment over the past few years demand a proactive approach.

Rather than simply deflecting responsibility in these situations, executives must be able to accomplish two things:

• Provide historical evidence of due diligence and risk management (if such a program was actually used)
• Demonstrate how the company is adjusting its policies and/or implementing new policies to ensure a similar incident doesn’t happen in the future

In 2010, the SEC’s Proxy Disclosure Enhancement (rule 33-9089) explicitly made boards of directors responsible for assessing and disclosing risk management effectiveness to shareholders. It mandates the use of risk monitoring systems to demonstrate that existing controls (mitigation activities) are effective. Under this rule, “not knowing” about an activity performed by employees is considered negligence.

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This is a crucial development; negligence carries the same penalty as fraud, but it does not require proof of intent. The Yates Memo (2015) gave the SEC ruling more “teeth” by requiring organizations to provide the Department of Justice with all the facts related to responsible individuals.

As a result, many companies have suffered significant penalties and frequently criminal charges, even though their executives were allegedly unaware of illicit activities. Consider the emissions scandal at Volkswagen and fines paid (to the SEC) by global health science company Nordion Inc. In both instances, deceptions were perpetrated by individuals below the executive level, but senior management’s inability to detect/prevent the incidents came back to bite them.

How to Prevent Risk Management Failures at Your Organization

John Stumpf’s approach should have started with an admission of Wells Fargo’s failure in risk management processes across the enterprise, followed by evidence that a more effective, formal enterprise risk management process is being implemented. For example, risk assessments must cascade from senior management down to the front lines and across all business silos. This ensures that the personnel most familiar with operational risks (and how to mitigate them) can keep the board informed.

In other words, instead of simply apologizing and attempting to provide restitution, Stumpf should have demonstrated that Wells Fargo is taking proactive risk management measures to protect its many stakeholders.

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It is the company’s duty to ensure that something like this never happens again.

The scandal is predictably following the same track as have previous failures in risk management: it starts with regulatory penalties, then leads to punitive damages, class action lawsuits, and finally, criminal charges and individual liability, depending on the particular case.

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The key to this pattern is the absence of adequate risk management, which means negligence under the new enterprise risk management laws, regulations and mandates passed since 2010.

The good news is that avoiding serious, long-term consequences is possible if proper actions are taken. For example, by providing a historical record of risk management practices, Morgan Stanley avoided regulatory penalties when an employee evaded existing internal controls. Other corporations that can provide evidence of an effective risk management program (risk assessments, internal controls that address risks, monitoring activities over these internal controls, and an electronic due-diligence trail) are largely exempt from punitive damages, class-action lawsuits, and possible jail time.

When implemented proactively, effective risk management systems have and will continue to prevent scandals, regulatory fines, litigation and imprisonment. For a more in-depth analysis of the Wells Fargo scandal, read the LogicManager blog post “The Walls Fargo Scandal is a Failure in Risk Management.”

Holding Executives Accountable for Cybersecurity Failures

The average cost of a data breach for companies surveyed has grown to $4 million, a 29% increase since 2013, with the per-record costs continuing to rise, according to the 2016 Ponemon Cost of a Data Breach Study, sponsored by IBM. The average cost hit $158 per record, but they are far more costly in highly regulated industries—in healthcare, for example, businesses are looking at $355 each, a full $100 more than in 2013. These incidents have grown in both volume and sophistication, with 64% more security incidents reported in 2015 than in 2014.

Ponemon wrote:

Leveraging an incident response team was the single biggest factor associated with reducing the cost of a data breach–saving companies nearly $400,000 on average (or $16 per record). In fact, response activities like incident forensics, communications, legal expenditures and regulatory mandates account for 59 percent of the cost of a data breach. Part of these high costs may be linked to the fact that 70 percent of U.S. security executives report they don’t have incident response plans in place.

With so much on the line, more and more companies and consumers continue to search for whom to hold accountable for cybersecurity failures, and the message is becoming clearer: executives need to get serious or watch out.

In a recent report from Bay Dynamics, “How Boards of Directors Really Feel About Cyber Security Reports,” board members expressed a surprising amount of confidence in their abilities to understand and act on cyberrisk threats and indicated there are real risks on the table for IT and security executives. Almost all of those surveyed said that some form of action will be taken should these executives not provide useful and actionable information, with 59% claiming there is a good chance one or more security executives would lose their job over such reporting failures.

More board members (26%) ranked cybersecurity risk as their highest corporate priority than any other risk, including financial, legal, regulatory and competitive risks, and 89% said they are “very involved” in making cybersecurity decisions.

Following the typical presentations from IT and security executives, more than three in five board members are both significantly or very “satisfied” (64%) and “inspired” (65%), but 32% are significantly or very “worried,” and 19% are significantly or very “confused” and “angry.”

According to the report:

Of the information provided to them during these presentations, the majority of board members (97%) say they know exactly what to do or have a good idea of what to do with the information. This statistic, however, does conflict with IT and security executives’ thoughts on the information they present. Based on our December 2015 survey, only 40% of IT and security executives believe the information they provide the board is actionable. There is a clear disconnect here between what the board perceives is actionable information, and what IT and security executives define as data that can be used to make informed decisions.

“IT and security executives are focusing on what they believe are the most impactful issues: a) forward-looking information about known vulnerabilities that could potentially harm the company in the future, b) specifics about data that was lost as a result of known infiltrations and data breaches, and c) the impact of these infiltrations and breaches,” Bay reports. “Interestingly, while information about how much is spent to address cyber risk is reported by IT and security executives in less than one-half of the companies surveyed, this was the most commonly cited information that board members said they needed to make investments for cyber risk planning and expenditures.”

Bay also pointed to a critical challenge in the education gap of many board members and the reliance upon information security executives: a large portion of the education board members have on infosec is from the organization’s IT and security executives, and “when the person education you on cybersecurity is the same individual tasted with measuring and reducing cyberrisk, there’s a fundamental disconnect.” It is extremely difficult for board members to understand what they are missing without education of their own and a third-party audit in place.

As cyberrisk continues to become a top enterprise risk priority, the consequences of failure may impact more of the C-suite than just chief information security officers or top IT executives. In May, following a social engineering fraud case that resulted in a wire transfer of 50 million euros, Austrian aircraft parts manufacturer FACC fired its chief executive of 17 years. Some regulators also want to start holding chief executives accountable in a way that truly speaks to them: their paychecks.

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According to a report from members of parliament on the British Culture, Media and Sport Select Committee, Britain’s status as the leading internet economy in the G20 is under threat from a combination of increasing reliance on digital infrastructure, and inadequate protection of it. To address the issue, they suggest that chief executives who fail to prevent cybersecurity breaches have a portion of their pay docked.

Such was the case with Baroness Harding, the chief executive of TalkTalk, Britain’s fourth-largest broadband provider, which suffered a high-profile cyberattack recently.

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Her performance bonus was slashed by more than a third as a result of the company’s security failings.

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“Companies must have robust strategies and processes in place, backed by adequate resources and clear lines of accountability, to stay one step ahead in a sophisticated and rapidly evolving environment,” said Jesse Norman, chairman of the committee. “Failure to prepare for or learn from cyber-attacks, and failure to inform and protect consumers, must draw sanctions serious enough to act as a real incentive and deterrent.”

Captive Growth Increases Need for Insurance-Experienced Board

The current climate for captive insurers is gravitating toward encouraging captives—including single-parent, association and agent-owned—to appoint experienced, independent directors to their boards. Regulators (National Association of Insurance Commissioners and Bermuda Monetary Authority) and rating organizations (A.M. Best and Standard & Poor’s) have all come out in favor of the appointment of independent directors. They believe that independent directors add value by providing independent, experienced guidance to captive owners that is separate and distinct from a captive’s other advisers, including as managers, lawyers and accountants.

Their appointment could also help a company avoid a lawsuit. Independent directors do not have conflicts of interest, can provide experience that is different from others on the board and usually have a broad captive insurance perspective.

Another point worth considering is that some captive managers may have other interests, such as brokerages, reinsurance brokerages, actuarial, claims, asset investments. Some may even provide leads for a possible fee for premium financing. Furthermore, captive owners can mistakenly believe they get all the advice they need from their current advisers.

Independents on the Horizon

In the coming months, expect to see captive owners reaching out to independent directors, both because of their value-added consulting expertise and because regulators and possibly rating agencies will require it. This practice already exists in some overseas jurisdictions, and with Solvency II, it could become more important as it may ultimately apply here in the U.S.

What is often overlooked is the value-added experience independents offer. Here is a partial list of services normally expected of experienced independent directors:

  • Help in selecting the reinsurance interme­diary. They provide an independent per­spective separate from the reinsurance broker or risk manager.
  • Advise on acquisition opportunities of the captive, if any, such as buying a third-party administrator, a licensed admitted insur­ance company, or an investment in a new start-up retail brokerage firm. These sophis­ticated ideas are an expansion of most cap­tives’ business plans and need to be consid­ered carefully given the risks they present. Keep in mind, however, that the captive landscape from the 1970s is littered with the carcasses of captives that ventured ill-advised into such businesses.
  • Help in evaluating a reinsurance program’s structure and economics.
  • Attend and advise on the rating process with outside rating agencies, such as A.M. Best.
  • Attend meetings with insurance regulators, especially if there is a regulatory concern.

Independent directors are also asked to vote on many issues, including:

  • Should the captive change fronting companies?
  • Should the captive make a large dividend payment to the parent corporation, or should it return capital to its owners?
  • Should the captive write direct procure­ment policies for the parent corporation?
  • What law firm should handle uncollectible reinsurance?
  • Should the captive litigate or arbitrate certain claims?
  • Should it change asset investment managers?
  • Should the captive expand into other lines of business, such as writing third-party reinsurance business?
  • Should it move from an offshore domicile to a domestic domicile?
  • How can the captive reduce the cost of its reinsurance program?
  • How does a captive evaluate its various service providers?
  • What are the consequences of executing reinsurance or fronting agreements?

How Cybersecure is Your Company?

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It should come as no surprise that security has moved from an afterthought at global organizations to a front-and-center consideration, often involving the CEO and board of directors. Headlines of the world’s largest companies involved in breaches are rampant, and will only increase as organizations accelerate their digital transformation plans and in doing so create lucrative opportunities for bad actors to steal valuable assets. Businesses are inherently interested in making money, and cybersecurity crimes have a significant impact on their bottom line. In fact, it is estimated that cybercrime will cost $2.1 trillion by 2019, according to Juniper Research.

For C-level execs and board members alike, their real understanding of cyber-exposure is too often binary: Are we on the front page of the Wall St. Journal or Not? While this may be an unfair over-generalization for tech-savvy board members, it is clear that cybersecurity is now included in their “fiduciary duties.” With increasing investments going to security software, consultants, and now cyber-insurance, executives and officers must know the risk profile of their digital systems and security service level agreements (SSLAs).

Organizations looking to maintain their competitive edge will take a new approach to security from the first line defenders in the IT department to the boardroom. The quickest and simplest step in moving the right direction must be to answer “How secure are we as an organization?”

The Best Defense is a Good Offense

Forward thinking organizations are appointing board members that have recognized this security paradigm shift and are moving from a defensive to an offensive mindset when it comes to protecting their assets. Some companies, like AIG, Blackberry, General Motors and Wells Fargo are even going so far as to appoint board members with cybersecurity expertise. While it isn’t mandatory that organizations have cybersecurity experts on their boards, the reality is that no board can escape responsibility, and digital threats will only become more a part of daily business life.

Ask the Right Questions

Beyond asking “How secure are we?” board members should ask their CISOs and security professionals whether their resources and budgets are appropriate. While CISOs will likely always ask for more, they need to be able to demonstrate specific holes and needs or anticipate pending regulatory changes specific to their industries. It would also be wise to regularly ask what internal changes have been made in light of developments in the industry. Additional questions that should be asked include:

  • How are you designing a security posture that does not slow down business operations?
  • How do we know that data/IP systems not in our control are safe and secure, such as internet of things (IoT) and cloud?
  • How do we ensure that we are ahead of new regulatory requirements coming down the pike?
  • Who is responsible for security—CISO, CIO or risk & compliance officer?
  • What is our risk score matrix?

Establish a Seat at the Table

For CISOs, this new attention can be a double-edged sword; while the increased visibility of their position could be beneficial to their own importance to the company, their performance will be scrutinized by the highest levels of management.

CISOs and their security equivalents presenting to the board require a persistent seat at the table. Bringing them in just for an annual report will leave many questions unanswered and does not paint an accurate picture of the organization’s risk profile. Continual updates should include both positive and negative developments, which will make budget increase requests more likely when needed.

These experts should also be expected to provide detailed analytics and a tailored executive dashboard that demonstrates the progress made against goals and benchmarks. The sophistication of these dashboards will depend on the board’s expertise but educating these members should be included in any presentation.

Put a Price on it

When taking these steps and bringing security to the forefront of business planning, each board presentation will allow organizations to make security a marketable attribute. Consumers are becoming increasingly fickle about doing business with organizations that have been breached and as a result are looking for assurance that they and their data will be secured. Promoting your organization’s commitment to security can be a valuable asset to the company’s bottom line. Board members can play a significant role in shifting perception and reality in the marketplace and would be wise to ask more questions to get closer to answering “How secure are we?”