If you thought Senate Democrats might take a breather from their political beat down of Wells Fargo and its leadership until after Election Day, you were wrong.
Two new letters build upon critiques of the bank, its executives, its auditors, and the regulators who oversaw its operations. While one of the harshly worded missives demands ougher "clawback rules" from regulators, another demands that KPMG, the bank's one-time independent auditor, explain its "failure to identify illegal activity when it audited the bank's financial statements."
The bank, for those blissfully unaware of recent headlines, was exposed for employees who, to meet unforgiving sales targets, opened millions of accounts and credit cards that were not authorized by customers. Earlier this month, after having nearly $1 million in unvested equity awards clawed back, Chairman and CEO John Stumpf retired from the company and its board of directors.
This week, Senators Bob Menendez (D-N.J.), Tammy Baldwin (D-Wis.), and Al Franken (D-Minn.) led a group of 15 Democratic senators calling on federal financial regulators to strengthen a proposed “clawback” rule pursuant to the Dodd-Frank Act that aims to prohibit executive pay arrangements that promote excessive risk-taking or misconduct in the financial services industry. They emphasized the importance of a stronger incentive-based compensation rule that holds senior executives responsible for implementing programs and designing sales cultures that lead to widespread misconduct.
Citing Wells Fargo’s failure to properly align sales goals with customers’ interests, the senators asked regulators to strengthen requirements so major financial institutions are required to enforce policies that reclaim executive’s compensation connected to misconduct and fraudulent activities.
“Recently, the [Wells Fargo] board of directors acted, belatedly and in the face of intense negative publicity, to reclaim a small fraction of this compensation,” the letter says. “However, it seems clear that without unusual public pressure, high-level Wells Fargo executives would not have been held financially accountable at all and would have received their entire bonuses. In fact, clawback policies are already in place at over 86 percent of S&P 500 companies, yet recouping compensation is extraordinarily rare. Clearly corporate boards are either unwilling or unable to use their authority to enforce clawbacks designed to protect shareholders and other stakeholders from the dangers posed by incentive-based compensation arrangements.”
“This is just the latest example of the lack of executive accountability for illegal activity at a major bank,” the senators added. “ Although tens of billions of dollars in penalties have been levied at big banks for mortgage fraud and other illegal activities related to the financial crisis, key executives have rarely been required to pay back bonuses connected to these activities.”
The letter includes recommendations for improving shortcomings in the proposed clawback rule intended to produce greater accountability for top executives. The letter also expresses concern that “specific weaknesses in the proposed rule could render the new rule ineffective in creating accountability for top executives.”
Among the recommendations: lengthening the bonus deferral period in the rule to ensure that executives are not improperly awarded bonuses before wrongdoing has become apparent; requiring, instead of suggesting, downward pay adjustments and clawbacks if misconduct or inappropriate risk-taking has clearly occurred; and, in the case of misconduct, strengthening the trigger mechanism for clawbacks to ensure senior executives are held accountable if they served in a managerial position and had oversight of the improper activities.
The letter was delivered to the heads of the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Federal Housing Finance Agency, and the Securities and Exchange Commission. Other signatories included Richard Blumenthal (D-Conn.); Barbara Boxer (D-Calif.); Sherrod Brown (D-Ohio); Richard J. Durbin (D-Ill.); Kirsten Gillibrand (D-N.Y.); Patrick Leahy (D-Vt.); Ed Markey (D-Mass.); Jeff Merkley (D-Ore.); Jack Reed (D-R.I.); Elizabeth Warren (D-Mass.); Sheldon Whitehouse (D-R.I.); and Ron Wyden (D-Ore.).
On Oct. 27, a separate letter was delivered to Wells Fargo's independent auditor KPMG, raised questions about KPMG's failure to identify illegal activity when it audited the bank's financial statements from 2011-2015.
The letter was authored and signed by Senators Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), Mazie K. Hirono (D-Hawaii), and Edward J. Markey (D-Mass.)
“KPMG conducted audits assessing Wells Fargo's internal control over its financial statements...But none of KPMG's audits identified any concerns with illegal behavior that resulted in the creation of over two million unauthorized accounts by thousands of employees,” they wrote. “In fact, in each of your audits, your firm concluded that Wells Fargo ‘maintained ... effective internal control over financial reporting.'"
The letter also raises questions about the enforcement and effectiveness of the implementation of the Sarbanes-Oxley Act of 2002 and the Public Company Accounting Oversight Board (PCAOB), which required independent audits of public companies' SEC filings.
“The Sarbanes-Oxley Act of 2002 was passed into law in part to address the problem of companies like Enron whose internal auditors' lack of independence enabled them to produce unreliable public financial reports and obscure problems with their companies,” they wrote. “But your firm's failure to identify the illegal behavior at Wells Fargo raises questions about the quality of your audits and the effectiveness of the implementation of these Sarbanes-Oxley requirements by the Public Company Accounting Oversight Board (PCAOB). "
The letter, addressed to Chairman and CEO Lynne Doughtie, requests that KPMG provide answers to a series of questions.
Was KPMG aware of any of the illegal sales practices committed by Wells Fargo employees from 2011-2015 and addressed in the CFPB settlement?
If yes, did KPMG communicate this knowledge with top executives at Wells Fargo? If so, provide electronic or paper copies of any and all communications.
Did KPMG have any internal discussions about Wells Fargo's illegal sales practices and their potential impact on the company's financial statements and on the outcome of the annual audits? If so, please provide all electronic or paper documents relating to these discussions. If no, provide a detailed explanation of why KPMG failed to contemporaneously identify or otherwise learn of Wells Fargo's illegal activity during your audits.
Did you assess whether Wells Fargo had controls in place to prevent this illegal activity? What was your assessment about the quality of these controls and how well they were executed?
Did any employee of Wells Fargo mislead any employee of KPMG about the extent and impact of the unauthorized account creation addressed in the CFPB settlement during your audits?
Has KPMG conducted any internal reviews, reexaminations, or reassessments of its Wells Fargo audits in light of the information revealed in the settlement?
Has KPMG faced any disciplinary action or queries from the Public Company Accounting Oversight Board (PCAOB) in relation to your audits of Wells Fargo? If so, provide details on these actions or queries.
Based on your present knowledge of the creation of unauthorized accounts at Wells Fargo, does your firm stand by its conclusions from 2011 -2015 that "Wells Fargo maintained, in all material respects, effective internal control over financial reporting?"
The senators requested that they receive KPMG’s responses by Nov. 28.