Re:Balance -- Jim Peterson

Tired Old Boys' Clubs -- A Lesson on How the Eras End

Can a long-vibrant institution be kept alive – however steeped in tradition and a long history of value to society – when it falls into terminal decay? Should it be? 

My recent travel for the graduations of two young friends, to a city dominated by its colleges and universities, meant a scramble for lodging – eventually solved by scrounging a comfortable but well-worn guest room in an old alumni club.

Regular readers familiar with my concern (see here, here and here) for the survivability of the Big Four’s franchise to deliver audit services to the world’s large companies – an invention of the Victorian era and basically unevolved since – will recognize some lessons in the death spiral of this 19^th century landmark, now fallen to seedy and tattered gentility:

What happens to a resource -- once grand, respected and important -- but now clearly of faded glory and on its last legs?

Designed and purpose-built as a private club by architects of world renown, this institution stood proud witness to the Gilded Age, populated by men of stature and significance:

• Tons of marble, forests of hardwoods and acres of oriental carpet were assembled into brahmin luxury – sadly now dulled, dusty and threadbare testimony to by-gone times.

• Among the eccentric anachronisms in the entrance foyer are carved wooden indian busts, towering grandfather clocks, and the battered bronze gate on the ancient elevator that could have been installed by Otis himself.

• Aside from a bare-bones website, “information technology” consists of reservations hand-written on a stack of file cards.

• The limited “scope of services” reflects unchanged priorities – an unused billiards table in the bar and a tuneless grand piano in the parlor, instead of the demands of today’s young professionals for an exercise room, a swimming pool, and a media center complete with juice bar.

During my stay I had a choice of empty rooms in which to establish a virtual working office. The club has so little cachet that it does not even attract members to post-lunch naps in the deep leather chairs of its reading room.

On a daily basis, dining and meeting venues are ghostly, echoing with the footsteps of a diminished skeleton staff. Friendly as they are, the kitchen is closed on weekends, there is no newspaper delivery, and party leftovers go uncleared until the arrival of the Monday crew.

The club survives not on the custom of its elderly and steadily diminishing membership, but on outsourced catering for wedding receptions and other rituals, for strangers whose ethnic names and lands of distant origin would have meant instant blackballs had their grandfathers been so foolish as to apply for membership.

The club’s contentious struggle over the admission of women came to a formal end decades ago – grudgingly, as shown by their then-required use of the side entrance rather than the front door. Even today, the true degree of gender balance is revealed in its governance: the only board committee listing more than one woman member is Decor.

On the financial side, the members have burdened themselves with a multi-million dollar mortgage on their historic clubhouse – a deadly strangulation of debt that cannot trace to the prosperity of its founding generation. This looming threat to solvency most likely arose from the unavoidable costs of essential if long-deferred maintenance, building code compliance, and the rapidly escalating property taxes in its pricey neighborhood.

As for the future, when the denial finally ends and the doors close on the club’s unsustainable model? Institutional memory will dissipate. The handful of users will disperse to modern alternatives with only a brief spasm of nostalgia. The archives and artifacts will be auctioned off for trivia.

Sale of the building will generate a one-time windfall to be fought over with the passion of the depleted. It will be paid in by an investor looking to a newly-designed future – a twenty-something new-media billionaire or the sovereign fund of an oil sheik – who will overcome furious if futile neighborhood opposition and install an amenity-laden boutique hotel.

The parallels of this poor failing club to the exhausted state of the Big Four audit franchise are many and clear: limited service offerings unchanged since the 19^th century, an obsolete organizational and operating model ill-suited to current competitive demands, and inflexible financial fragility exposed to fatal external shocks. 

With the students in my graduate-level course in Risk Management, I would assign this exercise in extended metaphor as overnight homework. In the academic spirit of the graduation ceremonies that underlay my traveler’s experience, I invite readers here to do that for yourselves.

 

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The PCAOB’s Inspection Reports Nibble at PwC -- A Reader Asks, “Where’s the Beef?”

Food beyond compare

Food beyond belief

Mix it in a mincer

And pretend it's beef

Kidney of a horse

Liver of a cat

Filling up the sausages

With this and that

-- Thénardier, “Master of the House,” Les Misérables

The Public Company Accounting Oversight Board – overseer of the accounting profession in the United States – got in a snit recently, perceiving that PwC was lax in its efforts to remediate the “significant audit performance deficiencies” that the agency asserted in its 2008 and 2009 inspection reports.

Expressing pique as it only could, on March 7, the PCAOB released to an indifferent public the previously undisclosed “Part II” portions of those reports.

Did it arouse the aforesaid public to care? Or even to notice?

A predictable handful of the large accounting firms’ most reliably ardent critics did weigh in (here and here).

Meanwhile a measured comparison comes to mind – the teapot-scale tempest aroused in Britain and Ireland this winter, over the discovery of equine DNA in samples of meatballs and ravioli – not, enforcers emphasized, because of any actual consumer health hazard, but over alleged deficiencies in labeling and transparency.

On which my perspective takes from the attitude of my daughter, a situational vegetarian who, on assignment this last year in Southeast Asia, has extended her palate and appetite to include crickets, dog conch and scorpion.

In the European kerfuffle, a libertarian-oriented omnivore – believing in both cultural differences and regulatory intervention only to the minimum necessary – would favor a simple modified label: “May contain horsemeat”. 

As for the PCAOB, the question has to be asked -- How can an oversight function claim either legitimacy or effectiveness, that:

• Decides for itself how to define and identify not a legal or professional standards failure, but an elusive “significant audit performance deficiency.”

• Keeps score under its own methods and incentives, like a traffic meter maid sent on patrol with a book of tickets and a daily quota.

• Must under cover of confidentiality conceal both the names and the detailed particulars of its self-defined offenses.

• And then in a burst of ill-temper, decides for itself whether the undisclosed substance of a remedial effort is satisfactory within unmeasured and unarticulated standards.

It’s no wonder, for two reasons, that PwC saw no reason to pursue its right of appeal to the Securities and Exchange Commission.

First, because PwC negotiated the ability to append to the PCAOB’s release a pronouncement of its commitment to virtuous conduct, positively radiant with unctuous platitudes.

But second and more especially, because under the current model for compliance with the securities laws, under which there is no available alternative, the Big Four-dominated market for large-company audit services is armor-plated against the PCAOB’s pop-gun arsenal. 

Law enforcement, rules compliance and social norm-setting in general -- in contexts that are controversial, subjective and incomprehensible to the laity -- are subject to credibility challenges and diminution of the authority of their arbiters:

• The Supreme Court’s obscure definition of obscenity, “I know it when I see it” (Stewart, J., Jacobellis v. Ohio, 1964).

• The theological search for distinctions between mortal and venial sins.

• The nuances and complexity of sport, from soccer’s off-side and cricket’s leg-before-wicket to hockey’s high-sticking and baseball’s rules on balks and infield flies.

• The subtleties of line-drawing between shrewd and informed investing and insider trading, or the bribery of officials and accepted business facilitation.

Here -- the mutual hypocrisy in the whole sorry audit regulatory environment is pervasive:

The PCAOB gets to pretend it is engaged in a meaningful exercise, worthy of being taken seriously in the capital marketplace.

The audit firms are obliged to pretend that they take the cost and impositions of the inspection process as something more than the de facto license fee paid as a nuisance to maintain their franchise.

And to the limited extent they really care, financial statement users can only search elsewhere for meaningful assurance, beyond the model unchanged since the Victorian era and long since degraded into obsolescence. 

Critics of this dysfunctional structure are entitled to their finger-pointing cynicism. But their bile is misplaced – until and unless they unite in advocating an achievable effort to re-engineer the entire system of reporting and assurance that today only fosters ambiguity, inconsequence and disrespect.

Until which, at the foot of each PCAOB inspection report should be appended an adapted version of the suggested European meat label – “May contain horse-sh*t.”

 

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Re-Structuring the Audit Profession: The UK's Competition Commission Hunts the Woozle

 After the United Kingdom’s Competition Commission issued its report on February 22, asserting that the Big-Four-dominated audit services market is non-competitive, I sought to raise a flag of warning that, unless de-railed, its rush to fait accompli would soon inflict mandatory auditor rotation or at least re-tender on global-scale companies.

Diligent digging through the Commission’s augean piles of paperwork makes clear that its ostensibly supportive “research” ranges from the shallow and irrelevant to a results-driven reflection of its confirmation bias.

Comes to mind A.A. Milne’s 1926 fable of Winnie-the-Pooh and his pal Piglet, earnest and naïve, circling their own tracks around a spinney of larch-trees, and befuddled in their speculation that they might be tracking a Woozle.

 

Despite a forthright bias in favor of “auditor switching” – reflected in the finding that “incumbent auditors … face less competition for their ongoing engagements than they would were the company more willing to switch thereby reducing rivalry” -- the Commission fails to elicit any evidence-based impact of auditor tenure on audit quality.

To be sure, the Commission’s inquiry into the rate of “switching” is voluminous – building elaborate calculations in search of relationships among such elements as client size, audit complexity, geographic spread, client evolution from private to listed status, length of tenure at the start of the measured period, etc.

Yet, it does not attempt to examine, much less resolve, these two related but distinct questions:

• With the considerable number of long-tenured auditor-client relationships where the record of non-controversial financial reporting is unbroken, is there any identifiable relationship between the length of auditor tenure and the incidence of diminished quality or “audit failure”?

• As to the extremely small population of actual “audit failures” – compared to the huge number of non-problematic audits – is there any identifiable relationship between the length of auditor tenure and such failures themselves?

Nor is the integrity of the Commission’s history of the profession any better than that of their economic research. Their lengthy discussion of the early audit requirements, evolving from the Joint Stock Companies Act 1844 through to the superseding Act of 1856, omits essential facts:

• First, the terms of the 1844 Act were met by “auditors” chosen from among the company shareholders – non-professional co-investors engaged to examine and report on their company’s results, with interests not independent but precisely aligned economically with their fellows. 

• Second, it was not until the dawn of the next decade that these amateur “auditors” reached out to the nascent profession for assistance – e.g., William Welch Deloitte, then aged 32, joined Messrs. John Dickinson and Richard Atkinson, the shareholder auditors of the Great Western Railway’s accounts for the six months ended December 31, 1849, in the terse opinion dated February 8, 1850 – “Audited and Approved.”

• Third, therefore, by the Act of 1856, developments in the market for independent audit had surged forward, making that legislation essentially reactive, in the same manner as today for government regulators typically late to the party. 

Shortcomings in the Commission’s approach include a rose-tinted survey of the mid-tier firms’ “self appraisals of their capability and willingness to audit FTSE 350 companies” – noting, however, that as of 2010, the Big Four audited 99 companies of the FTSE 100, and 96% by number and 99% by fees of the entire FTSE 350.

In that context, asking a mid-tier business developer about his firm’s capability to audit a global-scale FTSE 100 enterprise would be like asking a sophomore in a fraternity house how he’d like a date with the Sports Illustrated swimsuit cover model. What possible response could be expected?

My graduate-level course in Risk Management uses a reading exercise in what legitimate, non-ideological research ought to look like – drawn from the very Victorian era when independent audit was invented, on whose history the Commission is so dim.

It’s the 1855 diary of physician John Snow, whose meticulous tracking of epidemic cholera cases around the publicly-accessible water pump at Broad Street in central London ranks among the origins of forensic medicine.

Dr. Snow’s techniques made inquiry in both directions: Not only who got sick, after drinking water from the pump – including both residents and casual visitors to the neighborhood. But also, who lived and worked in the vicinity and yet stayed well – such as brewery workers who preferred their own product to pump water, and factory hands in a facility with a separate and independent well.

By so doing, Snow avoided precisely the trap of disregarding the “absent evidence,” into which the Commission’s ends-serving inquiry falls headlong.

Confronted by Christopher Robin’s challenge that they had been chasing their own footsteps, rather than the imaginary Woozle, Pooh had the grace to concede:

"‘I see now,’ said Winnie-the-Pooh.

‘I have been Foolish and Deluded,’ said he, ‘and I am a Bear of No Brain at All.’

…. And then he brightened up suddenly.

‘Anyhow,’ he said, ‘it is nearly Luncheon Time.’

So he went home for it." 

 

Commission group chairman Laura Carstensen and her fellows should do no less.

 

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Mandatory Auditor Rotation: The UK's Competition Commission Stirs the Pot

For a charm of powerful trouble,

Like a hell-broth boil and bubble.

Double, double toil and trouble;

Fire burn, and caldron bubble.

            W. Shakespeare, “MacBeth,” 4.1

The simmering caldron of accountancy regulation was brought to a rolling boil in the United Kingdom on February 22, when the five-strong Audit Investigation Group of the Competition Commission issued its provisional findings.

No less sweeping than its assertion that the supply of statutory audit services to large public companies is rife with adverse effects on competition, the Group's suggested “remedies” would be draconian – among them, mandatory re-tendering for audit engagements every five to seven years, and mandatory rotation of audit firms after seven to fourteen years.

Remarkably, while the UK press treated these landscape-altering proposals as a one-day story (e.g., the Financial Times, BBC and Independent), attention in America beyond minor pick-up from the news services has included not the first word of either reporting or commentary.

Which had better change, and quickly too – not just because the basic impracticality of mandatory rotation is a long-standing barrier to its implementation (here, here and here). It’s because Group Chairman Laura Carstensen and her coven of non-accountants are working to the accelerated timetable of March 21 for comments, and publication of a final report by October 20 of this year.

By then, under the typical regulators’ effects of both momentum and inertia, their “provisional” hell-broth is likely to be fully cooked.

And a toxic brew it is indeed.

The Group did give the market-dominating Big Four tetrapoly a back-handed compliment, by exonerating them from the most malign charges of the profession’s fiercest critics:

“The CC also considered whether the market conditions are conducive to coordination or that Big 4 firms engage in tacit collusion; that they bundle audit and non-audit services together in order to raise barriers to expansion to other firms; that they target the customers of Mid Tier firms with particularly low prices; or that they are able to exercise undue influence over the formation of regulation or on regulatory bodies through their extensive alumni networks. To date, the CC has not identified sufficient evidence to support these other theories of harm.”

Scant comfort, indeed, as they went on to “find” an entire menu of ostensible reasons for a dramatic re-structuring of the audit services market:

            “Companies face significant hurdles in comparing the offerings of an incumbent auditor with those of alternative suppliers other than through a tender process.

            “It is difficult for companies to judge audit quality in advance due to the nature of audit.

            “Companies and firms invest in a relationship of mutual trust and confidence from which neither will lightly walk away as this means the loss of the benefits of continuity stemming from the relationship.

            “Company management face significant opportunity costs in the management time involved in the selection and education of a new auditor.

            “Mid Tier firms face experience and reputational barriers to expansion and selection in the FTSE 350 audit market.

            “Auditors have misaligned incentives, as between shareholders and company management, and so compete to satisfy management rather than shareholder demand, where the demands of executive management and shareholders differ.

              “Auditors face barriers to the provision of information that shareholders demand (in particular, from the reluctance of company management to permit further disclosure)."

Beyond these mostly unexceptional characteristics of a properly-functioning market for specialized professional services, of course, the unresolved and gaping logical gap in the Group’s entire approach is two-fold:

• First, Big Four dominance of large-company audit is a natural-market result of client demands for scale in geographic coverage, expertise and exposure tolerance – all of which are beyond the capabilities of the smaller firms.
• Second, at the same time, the widely-shared dissatisfaction of the user community -- that the standard and commoditized auditor’s report is grievously obsolete and provides no value -- is destined to be unrealized by the attempted re-engineering initiatives of such standard-setters as the PCAOB or the IAASB.

Nor is either of these root difficulties touched at all by the asserted but unsubstantiated claims of benefit to audit quality to be wrought by mandatory tendering or rotation.

Instead, within what the FT described last fall as the Commission’s “sheaves of working papers,” there is not a single research under-taking, much less a scintilla of evidence, showing an actual link between the length of an auditor’s tenure and the quality of either its audit work or its client’s financial reporting.   

Put in summary, the fundamental dysfunctionalities in the reporting and assurance models are untouchable by the “solutions” urged by those having the authority (if not the evidentiary basis) for their mischief-making, while mandatory re-tendering and rotation remain as “remedies” in search of problems yet to be grounded in reality.

But if not stopped, the Competition Commission is likely to work its will.

A regulator on a results-oriented mission is dangerous enough. But undiluted by the flavoring effects of the facts, the Commission’s recipe for a reconstituted audit structure will leave a foul taste all around.

Those obliged to sup at this devil’s banquet are advised to bring very long-handled spoons.

 

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Standard & Poor's in the Gunsights: High Noon at the Triple-A Corral

The United States Justice Department filed a five billion dollar lawsuit on February 3 against credit-ratings agency Standard & Poor’s, over its ratings of mortgage-backed collateralized debt obligations lying at the heart of the last decade’s financial crisis (see here and here). 

Settlement talks had broken down, over S&P’s reluctance to admit to fraud charges. But the wager here is not the over/under on S&P’s eventual and inevitable settlement. Before that, there will be much posturing and a long way to run.

For sure, McGraw-Hill subsidiary S&P has lawyered up for the battle, adding to its team the trial capability of über-barrister John Keker – advocate for such luminaries of civic virtue as Enron’s Andy Fastow, Credit Suisse’s Frank Quattrone, Lance Armstrong, Eldridge Cleaver and de-frocked king of the securities class action bar Bill Lerach. 

Of concern, rather, is the longer-term impact on the roles, relationships and exposures of the various gate-keepers, ambiguously deemed critical by society to the global capital markets.

The New York Times’s Floyd Norris scratched the surface of this issue – here – but beneath lies much more.

Consider this menu of common attributes:

• A standard, commoditized report, without which financial products cannot be brought to the investor market.

• Providers not engaged by or in direct contact with investors, but competing to be engaged and paid directly by the issuers.

• Despite which, elaborate assertions of “independence” – widely criticized as resting on the intellectually shaky platform of “appearance.”

• Severely constrained choice among providers to large issuers, from a number of players limited to the low single-digits.

• Barriers to new competitive entry based on market demands for global scale, competence and resources – although tightly regulated, the provider cartel is not constrained by limits on government licenses or other franchise restrictions.

• Claims that, broadly speaking, the reports reasonably reflect reality, most of the time – except under highly stressed conditions, when they do not – a position not unlike the claim that the Boeing 787’s lithium-ion batteries work reasonably well, most of the time -- except when they catch fire.

• Provider claims to have adjusted and improved methodologies and process in light of recent criticisms – proclamations echoing those of my college era, before political correctness, that “Vassar girls don’t do those things -- and besides, the grass was wet.”

• Finally, the standard document noted at the head of this list, explicitly couched in the language of an “opinion” – as if, despite the construction of an elaborate and expensive pyramid of supportive analysis and procedures, the result were intended as a Zagats review or a “like” on Facebook.

Up to the last, this list of attributes would apply equally to the three dominant ratings agencies – S&P, Moody’s and Fitch – as to the accounting tetrapoly of Deloitte, E&Y, KPMG and PwC.

Except for the dissonance at the expectations gap, where the global accounting networks face existential litigation exposure for each large-company audit report they sign, while the ratings agencies have – until now – successfully wrapped themselves in the armored blanket of the First Amendment.

Does the government’s suit against S&P portend a realignment of the exposure realities? S&P’s free-speech advocate Floyd Abrams has forsworn a First Amendment defense (here), so a new era of litigation risk may confront S&P as well as its brethren.

From the audit firms’ perspective, though, any temptation to schadenfreude is hazardous – because of the speed and vigor with which the slightly guilty pleasure taken at another’s misfortune can turn to ashes.

Especially if there should be a contagion effect.

 

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Auditor Liability for the Dixon Fraud - Scape-Goat Hunting in the Courthouse

A nightmare of auditor litigation was predictable, when the news broke last May that the comptroller of bucolic Dixon, Illinois, had helped herself to $ 53 million dollars of city funds (here). 

Having financed her luxury-level hobby horses on an apparently modest five-figure city salary, revealed as supplanted by twenty years of hand-over-fist embezzlement, Rita Crundwell now faces twenty years of federal prison time (here).

As of December, the town added Midwestern regional accounting firm CliftonLarsonAllen as a litigation target (here) – liability being asserted for its multiple roles including Crundwell’s own tax return preparer and keeper of the city ledger, as well as auditor of the town’s financial statements until 2006 when it dialed back to “compilation services.”

A full-out courtroom scuffle would be interesting. On the one hand, the accountability of Dixon’s own city fathers over the extended looting of an annual budget of only $ 8 to $ 9 million implicates their guardianship of the municipal barn door through which Crundwell cantered away with her bags of stolen loot.

But as I wrote at the time: 

“The accounting profession, mistakenly relying on disclosure of the limits on what a compilation report does or does not say, has traditionally looked on (compilation) work as low risk – which it mostly is. But consider the environment, and the typical level and quality of competence, governance and integrity in municipal government. What level of confidence should with safety be routinely reposed in those entrusted with management of a small city’s financial resources?” 

  On the recent reporting, the Clifton firm’s reliance on the limited duties associated with a compilation is exposed to collateral arguments about its deeper involvement: emails continuing to refer to “audits,” alleged working-paper support to the local sole practitioner putting his name to the opinions, and maintenance of a steady-to-increasing stream of fees even with the reduction in its stated scope of responsibilities. 

Limited as compilation work requirements may be, they continue to require fulfillment of professional standards of quality control, ethical principles of integrity, objectivity competence and due care.

And by way of reinforcement, commentators and standard-setters continue to press the importance of skepticism in oversight (here and here) – difficult enough to achieve, and hostage to fortune whenever tested under the harsh glare of hindsight.

However -- those expecting a shoot-out at the Dixon corral should prepare for a damp squib instead -- mainly because the prospect of an actual trial rather than an out-of-court settlement is so slight.

That’s because the Clifton firm’s exposure is life-threatening, and so unlikely to be tested in a trial.

Which is despite the fact that Dixon’s outside lawyers hold themselves out as personal injury lawyers, who do not publicize accountancy litigation as a practice area. So they are unconstrained outsiders to the culture of the traditional accountancy plaintiffs’ bar, which has long calibrated its high-end demands so as to wring only enough from the flock of Big Firm geese to enrich themselves while sustaining the steady supply of golden eggs.

Instead, using the model on which I have previously explored the shockingly small size of a litigation threat that would disintegrate a global-scale accounting firm (here), the Clifton firm’s reported $ 570 million of annual revenue is a fragile base from which to defend against a worst-case impact on the order of $ 53 million. [1]  

No management has the fortitude, much less the confidence – except under the most extreme duress -- willingly to submit the quality of its work to a civil jury for such a price.

Existential threats from litigation are an unconfronted daily reality for the Big Four firms (here). But no less for their smaller brethren, where the threat is on a “one-and-done” basis. BDO’s ability to withstand the adverse jury verdict in the Bankest case in Florida was a fortuitous combination of persistence, favorable court rulings and an eventual settlement – still not publicly disclosed (here and here). And the Baker Tilly firm’s $ 50 adverse verdict in Wisconsin in the Aqua Finance matter – unhappily including a coverage dispute with its insurance carrier (here) – surpasses its resources on a worst-case basis as well.

None of which bodes well for the strength, sustainability or long-term future of the assurance function – professed to be important to society’s ability to rely on audited financial statements.

Instead, the clock of doom ticks toward midnight.

 

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---

[1] Write me for the details if interested. My pencil pushing suggests a break point of around $ 50 million, but precision is impossible. Insurance coverage and deductibles have relevance, but only as a measure of the pain that might be inflicted on future generations of Clifton partners.

Happy New Year -- What's On the Accounting and Assurance "Worry List" for 2013?

For the financial information community – issuers, users and gate-keepers -- what looms ahead for 2013? Now that we have survived the end of the Mayan calendar, crawled back from the edge of the year-end fiscal cliff, dodged briefly the threat Greece poses against the Euro, and crowned Alabama as the champions of college football? 

For starters, in a very target-rich environment, three potentially malign influences may be in retreat:

First, on the everlasting postponement of converged international accounting standards, the combination of political antagonism and absence of a sensible rationale desirably signals the end of the endless charade.

IASB chairman Hans Hoogervorst did temper his usual bellicosity at the AICPA’s annual December knees-up with the SEC and the PCAOB – not that his sabre-rattling had ever done the cause any good. The SEC lacks a head cheerleader, being populated these days by lame ducks, ghosts and placeholders – so with newly-designated chief accountant Paul Beswick’s deputy Julie Erhardt the nearest to a champion, the diffidence in her understatement amounted to a punt from the regulatory end zone.

While across the Atlantic (see the always-informative Edith Orenstein for the FEI), the ICAEW in the UK bailed out. Its report, The Future of IFRS, calls for non-adopters with “strong national GAAP” to take their own convergence “option” – an unmistakable message to the US to go its own way.

Second -- if finally game-over for convergence, it’s no less so for mandatory auditor rotation – never more than an unachievable notion in futile search for evidentiary support (here). Reality has taken hold in Europe in a climb-down from proposed six-year rotations and “audit-only” firms, despite a fervid pro-rotation residue unrelieved by the complete lack of factual basis. And an important voice of reason is heard in the US -- PCAOB member Jay Hanson – conceding at the AICPA conference that he “doesn’t know” what a “reliable study … would conclude with respect to audit tenure’s effects on audit failures and deficiencies…” and expressing skepticism “as to whether we would ever be able to make that connection.”

Third – the always-fraught issue of auditor liability remains challenging, if unlikely to be existential.

The manipulators of short-term statistics did nobody a favor by asserting in December that “things have changed” for the better from the post-Enron wave of auditor liability claims – a hostage to fortune disprovable at the time and subject to immediate invalidation (see below).

On the contrary, the Big Four in the UK fell all over themselves to emphasize their litigation exposure, in resisting the Competition Authority’s suggestion of a benign environment. True enough, that official proposition dangles from two illusory hooks – that short-term calm portends a longer-lasting trend, and that the large firms have available insurance remotely adequate against potential claims measured in the billions – neither of which is sustainable.

The real problem is that the large firms have never succeeded in carrying the burden of their message – dating back to 2008 and the embarrassing inability of the US Treasury’s fractious Advisory Committee on the Audit Profession even to agree that life-threatening litigation was an issue.       

In this tangle among the confused, the perplexed and the unpersuasive, three recent items are informative:

First, Ernst & Young’s agreement to pay C$ 117 million to settle civil litigation in Canada relating to its work for the failed Chinese company, Sino-Forest, does not approach the calculable limit of E&Y’s financial tolerance. But it is amply big enough to exceed either E&Y’s local Canadian resources or its global-scale nuisance value. And an upward re-set of the liability record in any developed economy cannot bode well in the hands of aspirational plaintiffs’ lawyers.

Second, the slow-moving litigation machinery in Iceland has ground out not only prosecutions and now jail sentences for senior members of its renegade banking sector, but also new claims against PwC in both Iceland and the UK, on the non-trivial order of $ 490 million, relating to its audits of Landsbanki, added to a prior claim for $ 2 billion over its work for Glitnir Bank, commenced against the firm in the US in 2010 and re-started in Iceland in 2012 (here).

Third, the HP-Autonomy fiasco in the UK saddles the Deloitte firm with years of runaway defense costs and disruptive diversion of senior management. Even if Autonomy CEO Mike Lynch’s robust defense of his company’s accounting proves entirely vaporous, however, or substance emerges in the announced investigation by the US Justice Department, Deloitte’s exposure is wrapped in several layers of insulation:

• The reluctance of the UK system to impose death-threat damages.
• HP’s reluctance to proceed adversely against its own alliance partner.
• The high threshold facing HP shareholders attempting to sue Deloittte derivatively in the company’s name.
• And the hostility of American courts to claims having a foreign nexus and one step removed from HP’s own financial reporting.

Auditor regulators in the United Kingdom not having a record of aggression, timeliness or ferocity, the Autonomy debacle is unlikely to tar Deloitte, either at all or at least within a time span occupied by anyone currently in positions of authority or responsibility.

So much for what may pass as good news. There’s a good deal more of concern, in this new year – but not today – so please watch this space.

 

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Ratings Agency Liability -- The Aussies Turn the World Upside Down

The litigation exposure of the Big Four accounting firms has not been made easier. 

The global networks should take no satisfaction from the field-leveling decision of Judge Jayne Jagot of the Federal Court of Australia, who on November 5 found ratings agency Standard & Poor’s (S&P) negligently liable to the purchasers of “grotesquely complicated” derivatives, designed and sold by ABN Amro. 

Schadenfreude would be wrong – and not just because it’s too hard to spell.

Consider the cries for accountability, during the recent years of financial calamity, by the auditors and the ratings agencies (e.g., here and here) – both of them, depending on one’s perspective, either vital gate-keepers to the markets, or aiders and abettors of the malefactors.

When their roles are compared, the guilty shiver of pleasure at another’s troubles would under-estimate the potential spreading of exposure. Consider the similarities: 

• Both have come to be viewed as essential functions in the world’s capital raising – chiefly by their regulatory authorities, to whom self-preservation and continuing existence are their own primary raison d’être.   

• Both are engaged and paid by their clients, upon which direct financial relationship they construct an elaborate edifice in illusory support of the intellectually unsatisfactory concept of an “appearance of independence.”

• Both seek to advance credible arguments that there is legitimate competition in their sector, despite effective barriers to entry that maintain their pass-the-parcel hegemony and an ever-tightening dominance by their respective global cartels.

• Their core products – the standard audit report and the three-letter rating – are delivered to users in prescribed and commoditized language – of which the source is a matter of consumer indifference and authorship would not be obvious absent a letterhead. 

• And finally, both couch their language in the qualified language of “opinions” and “judgment. ”

As to the last, however, the critical survivability difference emerges.

Namely, while S&P and its brethren have succeeded in wrapping themselves in the fuzzy if heretofore liability-proof blanket of the First Amendment’s free-speech protection, the auditors have long skirted disaster at the hands of a hindsight jurisprudence that threatens damages far beyond the limits of their financial tolerance or capacity. 

For the detail geeks, ABN Amro’s eye-crossingly complex derivatives, code-named “Rembrandt,” and the model-gaming involved in the rating process are laid out in overwhelming detail in the summary of Judge Jagot’s massive decision, and are thoroughly and colorfully discussed elsewhere – here and here.

The result threatens to turn topsy-turvy the ratings agencies’ comfortably protected world. Her Antipodean perspective is that S&P’s triple-A ratings were “misleading and deceptive,” involved “publication of information or statements false in material particulars,” and could not have been given by “a reasonably competent ratings agency.

For the ratings agencies themselves, the threat of worldwide contagion after the Rembrandt decision may be mitigated by both the availability of continuing scorched-earth defense strategies and the likely expiration of statutes of limitations to shield them from crisis-era claims.

For the auditors, who as noted are already far more exposed, it may be otherwise. Because -- taking cautionary note that the Rembrandt investor plaintiffs were supported by a publicly-listed company whose business is the funding and financing of large-scale class action securities litigation (here) – the investor-protection bar is a ruthlessly effective learning organism – to which the Judge’s liability language will operate like a blood-soaked invitation into a shark tank.

Even if not in the already-fraught American litigation market, should her process of hindsight negligence analysis gain traction in the courtrooms of Europe and elsewhere, the large accounting firms will find no ready firewall against the spreading conflagration.

 

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Dewey Survive? If Not, Do We Learn?

The death spiral has tightened for the Dewey LeBoeuf law firm. The cascade of partner defections and other bad news since its erosion began in January has accelerated day-by-day. Official lay-off warnings have been announced, and the end was foretold over the weekend with the casual insouciance and indignity of a Twitter message.

Briefly among the top-20 US-based firms, with nearly 1300 lawyers, the terminally-ill Dewey has shown again the instability of a business model based on the recruitment of over-priced superstars into its bloated 2007 post-merger structure, and the inability to handle the demands of big-ticket partner guarantees, issued without internal transparency and conflicted with declining levels of recession-era business.

Anyone surprised? Not with any memory, decade-by-decade, of Finley Kumble (RIP 1987), Mudge Rose (1995) or Altheimer & Gray (2003).

Put more plainly, the drug-like attraction of a hot lawyer’s addictive book of business leaves behind the nastiness of overdose and withdrawal when the revenues prove just as hot by rushing out the door.

The global market for legal services will digest Dewey’s disintegration without a hiccup of regret. The notion can be dismissed as fancy, that a law firm should be “too big to fail,” or that clients will be deprived even momentarily of immediate and costly attention.

Not so, the parallel issue of continued access to global scale audit services, if a Big Four accounting firm reaches the same crisis point.

The fragility of the Big Four has been a matter of on-going concern in these precincts, because of their calculable financial inability to withstand the existential shock of a worst-case performance failure (here), and the complete absence of viable strategies for their survival (here). The collapse of the Dewey firm makes it of pressing interest that nobody is asking this question: 

Can a large professional services partnership be saved by reorganization, a “living will” or some other contingent failure-preventive? 

In Dewey’s context, commentators would find the question foolish, as the firm's collapse displays yet again that high-cost lawyers can be as fickle and unready to be loyal colleagues as they are to be competent strategists and managers.

It is risible to suggest that a collection of leading counselors to clients in the global economies could be reorganized with stability in bankruptcy, when a firm’s lawyers flee like cockroaches under the harsh light of financial distress. It is no less impossible to conceive that the personnel of a Big Four firm, similarly pressured, could be persuaded to suspend their self-interest and hang around to be caught up in a culture of failure as the last rats on a sinking ship.

It is fair to observe, on one hand, that the large accounting networks are less dependent on the individual egos of their leaders, or that their mega-engagements would be as mobile as a lawyer’s prima donna attitude. But, on the other, it is also the case that those networks are larger in headcount and global locations and complexity by several orders of magnitude than the BigLaw firms, making even less feasible the possibility of resuscitation of a patient in intensive care. 

Yet the accounting regulators continue to avoid the reality and to advance the impossible – legacy of the loopy idea advanced in 2008 by Paul Volcker as part of Bush-era Treasury Secretary Paulson’s Advisory Committee on the Auditing Profession, that accounting firm leadership replacement or a pre-packed failure-management strategy would have the least chance of credibility or success.

Examples:

• Last fall’s “reform” proposals of EU markets commissioner Michel Barnier purported to recognize the “systemic risk if one of the Big Four… collapses” -- without a credible suggestion how to accomplish the oxymoron of an “orderly failure” (here).

• In the spring of 2011 the House of Lords in London tossed out the idea of “living wills,” drawing on the thoroughly inapplicable model of the troubled financial institutions (here).

• And the marathon attention given by the PCAOB to possibly mandated auditor rotation included hundreds of comment letters and three full days of hearings (here), without a shred of attention to the survivability issue.

To believe that the fate befalling Dewey simply “can’t happen” to the much larger, therefore more clumsy and inflexible accounting firms, reflects some mix of denial, hubris and naïveté.

But it will be the consequence of the disintegration of the global audit franchise, as with the rubble that was once Dewey LeBoeuf, that -- as put by the poet Percy Shelley -- “nothing besides remains.”

 

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The Big Four Accounting Firms' Financial Tipping Point -- Time for a Fresh Look

How quickly time does fly. It’s been three long years since my last review of the litigation “tipping point” that would disintegrate the fragile business models of the Big Four accounting networks. 

It’s time again. And not just because of the regulators’ threatened imposition of mandatory auditor rotation and other limitations sure to impair the quality of audits -- both PCAOB Chairman James Doty and EU markets commissioner Michel Barnier (see his November 30 press release, FAQ’s and provisional directive).

Those worrying about the incomprehensibility of Barnier’s financial and market thresholds for splitting off the non-audit practices of the European networks or injecting second-firm auditors (here) are looking in the wrong place.

That’s because the inventory of multi-billion dollar financial scandals in the firms’ client lists is constantly refreshed: revelations this fall alone include Kweku Adoboli’s roguish trading at UBS, the $1.2 billion shortfall in customer accounts at MF Global, and the decades of under-performance at Olympus concealed by dubious advisors’ fees.

Back in September 2006 – to re-set, and for new readers -- a report by the consulting firm London Economics to then-EU markets commissioner Charlie McCreevy (here) modeled the threshold limits of financial pain that would be tolerable to a Big Four UK partnership, before its owners would withdraw their loyalty and their capital and vote with their feet[1] – a process that would, unfortunately, lead to the rapid disintegration of the entire franchise of privately-provided assurance to the world’s large public companies.

I applied the London methodology to the global financial results published by the Big Four, in December 2006 and again in October 2008 – yielding calculations that, however ominous, were never disputed, nor have they been displaced by alternate models or methods.

It is poorly appreciated, if at all, that the private partnerships comprising the large international accounting networks operate with razor-thin levels of capital, for three reasons:

• Their major working capital needs – employee salaries, space costs and technology and methodology investments – are financed out of the fire-hose cash stream of client-derived revenues.

• The tax codes of the largest economies are cash-based for partnerships, creating a powerful incentive for the firms to distribute current income out to the partners to match with their tax liabilities.

• And, there being no alternatively valuable need or opportunity for the deployment of excess capital under the firms’ current business models, idle cash would serve only to whet the appetites of the litigation sharks circling in the feeding pens.

Latest available figures for the Big Four indicate total annual global revenues of some $ 102 billion.[2]

Applied to those figures, the model indicates that the break-up threshold for any one of the Big Four firm’s litigation “worst-cases” would be in the range from a maximum of $ 6 billion down to $ 2.2 billion, if viewed at the global level.

That is a considerable increase from the earlier numbers, owing to the great leap in total big-firm revenues in the intervening years.

But cautions remain. Most importantly, cohesion of the international networks under the strain of death-threat litigation, or the extended availability of collegial cross-border financial support, cannot be assumed. Arthur Andersen’s rapid disintegration in 2002 with the flight of its non-US member firms is illustrative.

So it is necessary to look at the bust-up range based on figures alone from the Americas, the most hazardous region. If left to their local resources, as was Andersen’s US firm, the disintegration range shrinks, from a maximum of less than $ 3 billion down to a truly frightening $ 675 million.

Amounts at that level compare ominously with the litigation settlements recently extracted from the larger debacles of the last decade – examples led by Bank of America’s post-Countrywide mortgage-securities settlement of $8.5 billion (here) and including such investor settlements as Enron ($7.2 billion), WorldCom ($6.2 billion) and Tyco ($3.2 billion) (here).

But those amounts were only available because inflicted on the investor-funded balance sheets of the corporations contributing to the settlements – resources not available to the private accounting partnerships. And they are even more darkly comparable with the exposures looming in the pending claims inventory.

True, in recent months the large accounting firms have enjoyed remarkable success in disposing of large litigations for modest sums – examples include KPMG resolving Countrywide for $ 24 million (here) and New Century for $ 45 million (here), and Deloitte settling Washington Mutual for $ 18.5 million (here).

However, hope for the indefinite continuation of such forbearance on the part of the plaintiffs is not a strategy, but only a wish.

As the catastrophic impact of “black swan” events makes clear, it only takes one. And at that tipping point, all the marginal fiddling by Barnier, Doty and their ilk becomes academic.

 

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[1] To summarize the model, as I wrote previously, “The original London study assumed that, in a highly-charged crisis environment dominated by the pressure and publicity of a massive adverse litigation result, critical numbers of partners would defect, so as to put a firm into a death spiral, if faced with a profit reduction of from 15 to 20 percent and extending over three or four years.”

[2] Deloitte, as of May 31, 2011: Global revenue $ 28.8, Americas $ 14.3 (here).

   Ernst & Young, as of June 30, 2011: Global revenue $ 22.9, Americas $ 8.9 (here).

   KPMG, as of September 30, 2010: Global revenue $ 20.6, Americas $ 6.4 (here).

   PwC, as of June 30, 2011: Global revenue $ 29.2, Americas $14.1 (here).           

 

 

 

A Lesson from the PCAOB's Inspection Reports -- Never Wrestle with a Pig

The October 17 release by the Public Company Accounting Oversight Board of previously-undisclosed portions of its 2008 inspection report on the Deloitte firm generated predictable bursts of umbrage from the usual suspects --  e.g.,  here, here and here.

The cottage industry of the professions’ critics may be satisfied with nothing less than the collapse of the large accounting firms’ business model and the entire franchise of privately-provided assurance. But because self-interest requires a steady supply of stones on which to grind their axes, the sniff of sanctimony resembles Captain Renault’s “shock” at the discovery of gambling at Rick’s Casablanca nightclub.

From its press release, the Board:

“takes very seriously the importance of firms making sufficient progress on quality control issues identified in an inspection report in the 12 months following the report. …The Board can and does make the relevant criticisms public when a firm has failed to do so." 

Flawed, opaque and ineffectual the PCAOB’s inspection and reporting process surely is – measured by its failure to achieve public credibility as a constructive force for improved financial reporting quality, even as it adds to the lives of auditors only added stress and box-ticking.  

That said, here is a message for the large firms: there are at least two grounds on which to question the reflexive approach taken by Deloitte, to fight off the inspection process by repeating the theme that:

“Professional judgments of reasonable and highly competent people may differ as to the nature and extent of necessary auditing procedures, conclusions reached and required documentation. We believe that reasonable judgments should not be second guessed and, therefore, disagree with a number of comments as indicated below."

The first is simply that it is bad form to convey to a regulator a tone of unvaryingly stubborn antagonism – a lesson that Arthur Andersen’s death spiral should have etched in memory. Having neither competence nor authority to act on a preventive basis, the PCAOB’s only tool is deployment of its functionaries to use their hindsight after the fact. So its minions must feel the hostility of disrespect, when challenged in their very raison d’être. 

Or as my grandfather would say, back on the farm, “Don’t wrestle with a pig. You get covered with pig-sh*t, and the pig actually likes it.”

Second and more nuanced – the accounting profession’s on-going and unsuccessful struggle with the public expectation of “zero defects” performance is not aided by the futile repetition of arguments that all judgment calls should go its way.

Instead, successful improvement strategies involve the candid recognition that performance shortcomings present learning opportunities, however unpleasant. The fields of engineering, air traffic safety and hospital ER techniques are exemplary – whereas the auditing profession has never acknowledged or embraced the utility of an effective forum for “failure study.”

“Close calls,” when rationalized away, are not problems fully diagnosed or properly solved, but rather are only buried hostages to fortune, lurking and growing and waiting to erupt.

So a mindset at senior levels, that outsiders’ criticism is to be deflected as nuisance and distraction, is at least an impediment to improvement, and perhaps an invitation to disaster. Examples range from the NASA management’s over-ride and launch of the doomed shuttle Challenger in 1986, to the chain of multi-level risk assessment faults leading to the BP oil well blow-out, to the SEC’s blinkered refusal to credit the warnings around Bernie Madoff.

None of this is to single out Deloittes – not least because, frisky as he is acting these days, it’s a sure bet that PCAOB chairman Doty has a stack of other Big Four reports ready for near-term release on a slow news day, when the others will suffer in their turn.[1]   

It is rather to suggest – in terms my Risk Management classes address every week – that it is impossible to achieve improvement if you can’t really measure how good you are. 

That realization comes hard – especially when served up by a crude and intrusive regulator – but it still offers a pathway to wisdom.     

 

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[1] And worth noting -- my own dedication to the importance of professionally-provided accounting and assurance – services as old as human commerce – extends back to my first two experiences, decades ago – involving massive problems for Deloitte’s US firm, Haskins & Sells as it then was, each of which led to changes in accepted auditing standards. And sharp-eyed readers have observed the homage on this blog’s banner -- the report issued by Mr. Deloitte himself in 1850 – the first, by my research, and unarguably truly significant, by an independent auditor on a large public company.  

A Prescription for What Ails Large-Company Audit: Real Medicine, for a Change

“Reality must take precedence over public relations, for nature cannot be fooled.”

            -- Physicist Richard Feynman's appendix to the Rogers Commission Report on the space shuttle Challenger disaster, January 28, 1986   

 A reader of my July 17 post acknowledged the continuing sterility of the dialog among the community of financial statement users, about the degraded status of the standard auditors’ report and the deep illness threatening the survival of the large accounting firms. But he chided me for offering only “bromides” rather than my own substantive prescription.

I felt the point of that needle – even though potential solutions have figured for the nearly ten years since this blog’s predecessor, my column "Balance Sheet," launched in the International Herald Tribune.

After the Enron debacle, the politicians’ infliction of Sarbanes/Oxley, and the many-faceted and still-unfolding events of the financial crisis, book-length treatment is surely called for -- despite the discouraging message from authors’ agents and publishers, that while the topic is worthy, the size of the interested audience would not support their investment.

Faute de mieux, I have stayed this course, appreciating the interest and support of a readership well prepared to share suggestions and criticisms.

It is a challenge to address the complex issues, within both column-length constraints and a comprehensive “holistic approach,” such as called for in June by PCAOB chairman James Doty (here), who himself lacks the vision, authority or resources to achieve it.

But by way of synthesis, a snapshot is possible of a sustainable future, using links back to the archives for detail.

First, a few background assumptions:

• A forthright reading of the projects to re-consider the scope and language of the standard auditors’ report, by the PCAOB and the IAASB among others, confirms an emerging consensus that the current “pass/fail” report is obsolete, serves no purpose other than securities laws compliance, and should be supplanted by assurance of real value.

• The existential threat hanging over the Big Four firms’ complete dominance of the large-company audit market -- the “supply side” – is simply not addressed by any of the so-called “solutions” addressed to market concentration – whether mandatory rotation, break-up or new entries, liability reforms, audit catastrophe insurance or bonds, living wills, leadership replacement, etc., etc., blah, blah, blah. As the first head of the PCAOB confirmed, regulators “don’t have a clue” – a widely shared and unchanged attitude of denial.

• There is no credible case for government-controlled delivery of audits worth the effort and expense – whether by direct execution, engagement assignments or otherwise. The output of the artificial and pathetic “profession” that would exist under such regimes would be inferior even to today’s devalued state, much less to the evolved conditions now called for.  

• And, it is time to acknowledge, the entire intellectually fragile structure of auditor independence is anachronistic, ill-suited to today’s conditions, and deleterious to both performance quality and the potential for useful change – a sacred cow that should be taken out and put to a quick and humane end (here and here).

So, now what? 

A framework does exist for regulators to license or charter sustainable audit-only firms (here). But – if and only if – a reconfigured legal and regulatory environment both permits, invites and encourages: 

• Full-service relationships between auditors and providers of other services.
• The attraction and deployment of outside capital, as would be required to support such new multi-service providers, with corresponding changes in permissible ownership structures.
• The appropriate involvement of meaningful regulatory oversight, quality enforcement and investor rights recognition.
• The emergence of geographic and industry-based new competitors.
• And, perhaps, even the return of today’s understandably reluctant insurance industry. 

Under such a fundamentally re-engineered regime, truly new and valuable forms of reporting could be designed and delivered (here and here).

These could be responsive to the needs of financial management and audit committees, welcomed by both executive teams and directors alike, and subscribed to by users under sustainable liability terms). They could be, at the same time, respectful of the value perceived by shareholders and others of the influential presence of “outside experts.” 

Simultaneous attention to all aspects of this framework is essential, however, because until then – as today’s impasse shows -- neither issuers nor auditors have any incentive to take on the increases in both cost and liability imposed under today’s exposed conditions.

I have been calling for years for an adult dialog among the inter-locking and antagonistic interests, who today are only wasting their energy in paralysis and finger-pointing. Without seeking endorsement or even agreement, I suggest that there is much more available here than “bromides.” 

Be the judges – and please let me know.   

 

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The "Independent" Auditor's Real Client? Time to Re-Assess, I Kid You Not

 "Ahh, but the strawberries -- that's where I had them. They laughed at me and made jokes, but I proved beyond the shadow of a doubt and with geometric logic that a duplicate key to the wardroom icebox did exist, and I'd have produced that key if they hadn't pulled the Caine out of action"

    --Capt. Philip Francis Queeg, 1954

Comprehensive review of the scope and language of the standard auditors’ report has been long overdue. So with measured enthusiasm (here and here), the initiatives of both the Public Company Accounting Oversight Board and the International Auditing and Assurance Standards Board are welcome.

High on the list of barriers to clear thinking and potentially constructive evolution, however, is the persistent canard, renewed by PCAOB member Steven Harris at its June 21 public meeting (here), that auditors “must fully embrace the concept that the company paying their fee is not their client.”

This proposition is confusing in logic, wrong in history, and malign in its influence. Until snuffed out once for all, it will continue to deflect and distract from the achievable task of re-engineering a role for outside auditors that brings real value to the community of financial statement users.

Since the middle of the 19^th century, when Mr. Deloitte and his pioneering colleagues were first engaged to assist the “auditors” of Victorian-era public companies – themselves selected from among the body of corporate shareholders, to advise their fellows in their shared financial interests – the auditor/client relationship has been contractual, consensual and private.

The appliqué of “public interest” has been allowed not only to stick, but to become an incrustation on the auditors’ appropriate functions. Fostered since its infancy by the newly-invented profession itself, to its discredit and lately to its mortal threat, the label did fend off – if only temporarily – the prospect of government-provided assurance – but at high cost and under the now-realized hazard of exaggeration and misapprehension of its capacities.

The shaky structure on which Harris bases his claim, that “the ultimate client of an auditor of any publicly traded company must be investors” is the 1984 case of United States v. Arthur Young. There, perpetuating the unfortunately long tradition of judicial malappreciation of the auditors’ role, Chief Justice Burger invoked the inapposite image of the “public watchdog” -- that “the accountant maintain total independence from the client at all times and requires complete fidelity to the public trust.”

As a matter of jurisprudence, Burger’s gratuitous dictum was unnecessary to the Court’s holding that tax accrual working papers could be reached by IRS subpoena.

And as a matter of unexamined rhetoric, Burger defied the logic of canine behavior, by expecting even the most vigilant watchdog to bite the very hand that feeds it.  

Events have now shown that on such a tenuous rationale, the bulky but fragile edifice of constrained client service and “appearance of independence” cannot stand. 

Critics such as Harris of the “pass/fail” audit report model have much to complain of – but there will be no solutions in shooting at the messengers, for continuing to deliver this outdated and devalued commodity product. 

Instead, history provides many examples of the dangers that lurk in broadening the distance that separates the payor of fees or benefits from the subsidized interests ostensibly served:

• Raising the limits on depositors’ insurance incentivized the reckless behavior of the American savings and loan institutions in the 1980’s, underlying their ruinous boom-and-bust.

• Lodging the management of health care cost reimbursement decisions with self-interested insurers has opened the doors to the waste, abuse and mis-allocations in the pricing and delivery of medical services.

• And most recently, requiring an issuer-paid rating agency’s report as a “green light” to sell complex derivatives was a central element in the inflation of the subprime-mortgage driven crisis that has plagued the financial markets for four years and counting.

None of which is to say that the “agency problem” of close auditor relationships with corporate boards and managements can be addressed successfully by the further intrusion of government. The prospect that an audit regulator could take on and satisfy the task of providing even today’s out-dated “pass/fail” assurance is beyond Panglossian fantasy or imagination. 

Rather, hope for progress lies in a realistic re-framing of the results that can reasonably be expected from the auditors, in an environment where legitimate and valuable new forms of assurance can be designed and delivered.

Which requires putting aside inflated language, moderating unrealistic expectations, and nurturing the profession’s acknowledged and considerable expertise.

 

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The Role and Relevance of Audits: PCAOB Chairman Doty Creates His Own Expectations Gap

 There are at least two positive reasons for attention to the New York speech delivered on May 5 by the PCAOB’s newbie chairman James Doty – here.

Although no rhetorical threat to the real wordsmiths of the Beltway, Doty has the ability to turn an adult phrase -- finally re-writing the agency’s longstanding pattern of turgid language and opaque vision.

As can be seen, first, in his readiness to reject the “structural alternatives such as a third-party payor or insurance-based system,” or to see the trial balloons floated in the UK or in Brussels to break up the Big Four – properly “the bailiwick of competition authorities” – as having a “negative effect on audit quality.”

Modest applause – these diversionary detours being long since exposed as dead ends (see here and here). 

Second, Doty offers relief at last – although perhaps inadvertently -- from the otherwise reluctant but compelling conclusion that since passage of the Sarbanes-Oxley law in 2002, the PCAOB has managed to pass from immature ineffectiveness directly to self-perpetuating inertia without ever achieving a record of real accomplishment.

Namely, a healthy admission of the agency's inward focus is at least implicit in Doty’s acknowledgement that auditor oversight and quality enforcement are shrouded in PCAOB confidentiality and concealed from public transparency and deterrent impact. The same inference is recognizable in Doty’s reference to recently commenced “joint inspections with U.K. and Swiss authorities” – surely two of the lowest-hanging fruits dangling from the limbs of cross-border enforcement – only showing the glacial pace of progress over nine years.

Meanwhile for candor and completeness, his concession of an inability “to inspect a registered firm’s work” in context of the “growth in the number and size of Chinese companies seeking access to capital in U.S. securities markets” requires acknowledgement of this year’s outbreak of litigation claims against Chinese issuers – catalogued by the ever-informative Kevin LaCroix’s D&O Diary, and the risk-based subtext of the PCAOB’s own March-dated research note.  

Credit as due for these positions, but the Chairman ventures onto even riskier ground.

To start, his cheerleading that the auditors’ “lofty status” as “guardian of a cultural value” is akin in importance to electricity or water, presumes to invoke the name and record of the late chief accountant of the SEC. But the legacy of Sandy Burton’s 1980’s advocacy for greater auditor responsibility only highlights the absence of substantive change over the span of an entire generation. 

Likewise, Doty’s critique of the payment model by which “the auditor is hired and paid by the company itself” is devoid of vision for change in a structure embraced since the emergence of independent assurance to assist shareholders in the Victorian era of the 1850’s.

The market's vote for persistence of “client pays” does not fault the limited influence of audit committees on economic relationships having 150 years of history, pace Doty’s slap at their lack of impact. The durability of that model and the absence of viable alternatives only expose, instead, the intellectual fragility of the entire cosmetic attempt to regulate “appearances of independence” and the richly-deserving consignment of that sacred cow to a decent burial (as I have written for years – see here and here). 

Rather, it is the narrow and anachronistic language of the current compliance-oriented audit report itself – a document having value in today’s environment not by the free choice of issuers or users but only because required by the fraternity of regulators to which Doty himself belongs – that operates as a shackle on innovation.

Here Doty stands exposed. Correctly recognizing that “auditors don’t have a natural incentive to evolve their reports to what investors want” – a position long argued (e.g., here, here and here) – Doty has put down a major marker: He promises a “concept release” for early summer, to consider “how the auditor’s report can be changed to provide more useful, relevant and timely information.”

Can the Chairman really mean it? And how, without conceding that his own agency (along with the SEC) holds the keys to the lock?

He avows that “there is no silver bullet to address these challenges.”

But in this he is wrong. That bullet today is loaded in the deadly weapon of litigation roulette, which aims existential exposure at the large firms for their issuance of the very reports Doty purports to recognize as failing to deliver value to users.

To disarm that weapon – to create and nourish an environment in which real innovation in assurance and investor value can be brought forth – will require a leader's brave step, up to now unimaginable: scrap as worn-out and useless the obsolete one-page compliance report, along with the devastating machinery of liability that has grown to encage it, and start with fresh and creative authorship, written on an entirely blank page.

The first PCAOB chairman left office with the admission that regulators “don’t have a clue”(here). Today's occupant not only has the opportunity to show otherwise. Doty's speech makes hostage to fortune and accountability in office his own readiness to act.

 

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The PCAOB Settlement in Satyam: PwC Agrees to Fall on its Pen-Knife

“Two aristocrats challenge each other to see which can come up with the larger number. The second agrees to the contest, concentrates for a few minutes, and proudly announces, “Three.” The proposer of the game is quiet for half an hour, then finally shrugs and concedes defeat.”

-- John Allen Paulos, “Innumeracy,” 1988

 

 The PCAOB’s April 5 settlement with the Indian firms of the PwC network, over the billion-dollar fraud at Satyam Computer Services Limited, adds a $1.5 million fine to the six million dollars the auditors also agreed to cough up to the SEC.

(Statements from the agencies are here and here; see Going Concern for the orders; and the NYT for statements from PwC.)

The amount compares to the aggregate salary of the five PCAOB members of $2,366,000. It would be a small fraction of either the annual compensation of PwC’s global chief Dennis Nally, or the firm’s legal fees on Satyam to date. And even measured by the $ 550 million ponied up by Goldman Sachs under its August 2010 SEC settlement of its one-issue dispute over the “Abacus” derivative peddled by its fabulous Fabrice Tourre (here), the amount is derisory. 

The Big Four giant is still facing on-going investor claims, to be sure. But the exposure is well-fenced; the Supreme Court’s June 2010 decision in Morrison closed the doors of the American courts to foreign securities claimants who bought their shares abroad, and the inexperienced Indian judicial system lacks the competence to be an attractive plaintiffs’ venue.

Consider the motives from the regulatory perspective. The settlement timing ahead of the April 6 hearing of the Senate Finance Committee on the role of the accounting profession in the financial crisis (here) gave senior officials a public forum. And the media coverage allowed the SEC’s enforcement head Bob Khuzami and FCPA unit chief Cheryl Scarboro, and the PCAOB’s chairman Jim Doty and his enforcement head Claudius Modesti, all to strut their achievement against foreign auditors – even while avoiding the obligation actually to try their case across international borders.

From the PwC perspective, meanwhile, the chance for a cheap exit from a major problem would have been a no-brainer. Consider:

First, an enforcement ding on the Satyam engagements had to be coming, sooner or later. From the PCAOB’s order – which PwC agreed not to contest – the Indian engagement teams on the audits from 2005 through 2008 basically did not:

• Adequately audit the company’s cash positions
• Control the confirmation process on bank balances or accounts receivable
• Pursue indications of inconsistent information or control weaknesses
• Follow PwC global directives on audit execution
• Inform or advise higher-level quality oversight personnel
• Document the work actually done (or not) in the work-papers, until subsequent back-dating while already under regulatory scrutiny

So a strategic decision not to defend the indefensible indicates early recognition of a step toward sustainable credibility. 

As for the sanctions – PwC’s undertakings on future practice quality, staffing, training and internal oversight are no more than necessary for an enterprise with aspirations to professionalism; the two-year presence of an outside monitor only adds one more stranger to the list of foreign intruders imposed on its Indian practice; and the six-month restraint on new SEC clients runs only to the settling Indian firms, so does not inhibit either the global network or its other Indian affiliates.

And, lastly, the financial impact of the fines on the massive PwC network is no more than a dime added to a roll of nickels.

For good measure, with the week’s news cycle dominated by military activities in Libya and a threatened government shut-down in Washington, and subsidiary attention to post-earthquake Japan’s nuclear hazards and Silvio Berlusconi’s “bunga bunga” trial, the entire story will drop off the media screen in less than no time.

Predictably, critics of the accounting profession who are unwilling to settle for less than the scalps of the Big Four leaders nailed to an enforcer’s door will make their outrage known.

But they will fail to acknowledge that both the regulators and PwC itself are only acting in full accordance with their respective DNA.

So once again, this settlement points up the challenge to the long-term achievability of a valuable, sustainable assurance function, to serve the issuers and users of the financial information of global-scale companies: the terms of the discourse are revealed as hopelessly inadequate.

 

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