May 19, 2020

How should companies respond to the increasing aggression shown by the FCA and SFO?

Jonathan Pickworth
7 min
Finance and IT Execs to Gather in Dubai for Middle East Banking Innovation Summit

In a speech on 5 November, the Financial Conduct Authority (“FCA”) criticised some firms for letting “legal privilege become an unnecessary barrier” in sharing the output of internal investigations with the FCA. The speech confirmed that the FCA expects firms to share the core product of their investigations – the evidence, which would include witness statements and investigation reports – with it.

This echoes the stance currently taken by the Serious Fraud Office (“SFO”), and highlights the difficulty corporates face in attempting to balance protecting their right to assert privilege against achieving the best outcome possible when liaising with the FCA or SFO in relation to alleged wrongdoing.

By contrast, the Securities and Exchange Commission (“SEC”) and the Department of Justice (“DOJ”) in the US both have policies prohibiting authorities from even making requests for waivers of privilege except in extraordinary circumstances, and cooperation credit cannot depend upon any privilege waiver or lack thereof. Interestingly, the FCA and SFO position is one that was previously taken by the DOJ and SEC, but from which they retracted following protests from companies. First, the DOJ and, subsequently, the SEC modified their procedures to allow enforcers to request that corporates waive privilege only in specific, extraordinary circumstances.

In the UK, communications and/or documents produced during the course of an internal investigation can be protected by one or more of two types of privilege: Legal Advice Privilege and Litigation Privilege.

Legal Advice Privilege

This covers communications between lawyers and clients for the purpose of giving or obtaining legal advice and documents created by lawyers during the course of giving legal advice although not actually delivered to the client. Privilege applies to the advice given by in-house lawyers as well as external lawyers, as long as they are acting in their capacity as lawyers and not in an executive or compliance capacity. Only those employees actually charged with responsibility for instructing the lawyers are considered to be the “client” for purposes of legal advice privilege.

On the same day as the FCA’s comments on privilege, the High Court of England and Wales confirmed in the Property Alliance Group case that, for the purpose of legal advice privilege, legal advice can also include factual briefings where these are given in a relevant legal context.

It was noted that “there is a clear public interest in regulatory investigations being conducted efficiently and in accordance with the law. That public interest will be advanced if the regulators can deal with experienced lawyers who can accurately advise their clients how to respond and cooperate. Such lawyers must be able to give their client candid factual briefings as well as legal advice, secure in the knowledge that any such communications and any record of their discussions and the decisions taken will not subsequently be disclosed without the client’s consent.” The case related to the disclosure of documents prepared during the course of an FCA investigation.

Litigation Privilege

This covers (i) confidential communications between either the lawyer or the client and a third party, or (ii) confidential documents created by or on behalf of the lawyer or his client. These communications or documents must be made for the sole or dominant purpose of litigation (including adversarial government investigations), where litigation is pending, existing, or reasonably contemplated. Legal teams acting for corporates conducting an internal investigation will generally take the view, therefore, that interview notes, investigation reports and other types of “source” material are protected by one or both of the above types of privilege.

The FCA’s recent comments on privilege

In the speech on 5 November on the subject of firms’ internal investigations, Jamie Symington of the FCA stated his disapproval of this approach:

“How an investigation is carried out and recorded can impact on whether the output, or parts of it, are amenable to claims of privileged [sic]. If the output of a report and supporting evidence are not available to the FCA, it devalues the usefulness of the whole exercise. This might require the FCA to undertake additional enquiries. So, we expect to agree in early discussions what will be provided to us. If not, firms are missing an opportunity to gain the full benefits.”

He continued:

“A practice we sometimes see is for the investigation to produce only lawyers' notes of … interviews. No recordings, no notes by others including the interviewee. Then firms will sometimes argue that the notes of the interview are privileged. This sort of approach looks to us like a 'gaming' of the process in order to shroud the output of an investigation in privilege. We find it particularly unhelpful and unwelcome. Similarly, it has sometimes been suggested to us that – in order to avoid waiving privilege – firms would like to read aloud the output from investigations to us in a meeting, rather than to commit material into document form. It seems to me that this is an absurd way to suggest that [sic] public authority should operate… Let me be clear: where firms propose to carry out or commission an internal investigation themselves – the starting point is that we expect them to share the core product of their investigation – i.e. the evidence – with us.”

Symington ended his speech by stating that the FCA has no interest in “deliberately undermining confidentiality or legal privilege”. It is difficult to see how this tallies with his expectation that all of the evidence produced in an internal investigation be shared with the FCA, especially given the very recent ruling in the Property Alliance Group case (noted above). The fact that the ruling was given on the same day as the FCA’s speech highlights the gulf between the current law and the attitude of the FCA.

Increased pressure on corporates

The FCA’s comments on privilege in internal investigations are in line with the SFO’s current stance on the matter.

Disclosure of witness accounts appears to be a pre-requisite to qualifying for an invitation to enter into negotiations for a Deferred Prosecution Agreement (“DPA”). In the Deferred Prosecution Agreements Code of Practice, co-operation is listed as a public interest factor against prosecution (and therefore in favour of a DPA). The Code states that “Considerable weight may be given to a genuinely proactive approach…Cooperation will include identifying relevant witnesses, disclosing their accounts and the documents shown to them…It will further include providing a report in respect of any internal investigation including source documents”.

Representatives of the SFO have spoken publically a number of times on the issue of privilege over documents produced during an internal investigation, but most recently Ben Morgan stated in relation to witness interviews:

“You had a choice about whether to conduct those interviews in such a way as to create claims to privilege, but also having done so, a choice whether to assert those claims over the factual content. The way you deal with both of these decisions is something we will consider carefully in the context of your cooperation.”

The difficulty for corporates is that both the FCA and the SFO are requiring them to take a leap of faith and hand over privileged documents with no assurance that this will improve their prospects of obtaining a satisfactory resolution in the circumstances. For example, a corporate could hand over witness accounts to the SFO in the hope of obtaining a DPA but still end up being prosecuted whilst the SFO has been assisted by the waiver of the corporate’s privilege rights.

An additional challenge is posed for corporates under investigation in both the U.S. and the U.K., as privilege restrictions that are respected for a co-operating company in the U.S. might not be respected in the U.K. Where the two countries are cooperating in an investigation, this could lead to an “end run” around the U.S. privilege, as the SFO and FCA can share information derived from their investigation with their counterparts in the DOJ and SEC, if it is deemed in the public interest to do so. Under the “silver platter doctrine”, the U.S. authorities may use any evidence lawfully obtained by authorities in other countries, even if they would not have been able to secure the evidence directly themselves.

This can pose significant difficulties not only for U.S. companies who rely on stringent protections of privilege, but also for their counsel, who may be facing demands from UK authorities for information that ethically they cannot provide. This occurred with the SFO’s attempt to force the testimony of attorneys from the U.S. firm Akin Gump in the trial of Victor Dadaleh. In that case, after the attorneys hastily returned to the U.S. to be outside the reach of U.K. process, the court ultimately recognized the ethical obligations of the attorneys and did not force their testimony, which led to the collapse of the U.K. prosecution.

Tough Calls

The FCA’s recent comments seem to reflect a general shift by UK regulators towards either challenging or using their positions of power to side-step claims of privilege over source documents in internal investigations. Waiving privilege over such documents is a difficult decision to make, and one that needs to be considered carefully, particularly where an investigation may touch on multiple jurisdictions where privilege protections differ significantly. It is important to seek specialist advice right from the outset of an internal investigation to ensure that privilege rights are preserved and protected, and only waived after a careful and considered analysis of the potential benefits and pitfalls.

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Jun 13, 2021

Why we need more female CFOs (and how to reach that goal)

CFO
Finance
Executives
women
Kate Birch
12 min
Four female global financial experts weigh in on why there are so few female CFOs, and what organisations can do to redress the boardroom gender imbalance

The number of women in CFO positions in Fortune 500 companies reached a record high late last year, hitting 90, up from 65 just a few years ago. It’s not surprising given the increased focus in recent years on C-suite and board parity by investors such as Blackrock, as well as other institutions including the Nasdaq, which recently stated that companies listed on its US exchange will need to have a minimum of two non-white or female Board members. And if they do not, they must publicise the reasons as to why.

The picture is similar in the UK. According to Julia van den Bosch Wazen, CFO Practice consultant at Odgers Berndtson, The Financial Conduct Authority in the UK is now looking to the London Stock Exchange listings framework as to whether similar measures ought to be implemented, while for City firms, “there are already ongoing discussions about potentially using wider FCA powers, such as denying regulatory approves to drive diversity on Boards”.

But while there’s certainly been improvement, the under-representation of women in executive finance positions remains less than rosy, with van den Bosch Wazen admitting that “whilst much has been done, we are still of the view that progress is too slow”.

Still too few women make CFO

According to the government-backed Hampton-Alexander Review, of which Odgers Berndtson are active contributors, while women now make up one third of all board positions in the UK’s FTSE 100 companies, up from 12.5% less than a decade ago, there remains a concerning lack of female representation in senior leadership and key executive roles in FTSE companies, with just 15% of finance directors bring women.

“One of the Big Four partners informed me that their annual graduate intake split is around 52% women, 48% men. By the time this age group reaches their early thirties, the number goes down to 34% women,” explains van den Bosch Wazen. “Since many CFOs of listed businesses in the UK take the audit route, before moving into industry, the disparity of diverse talent coming into the market starts early and is not able to catch up later.”

Recent McKinsey research for its Women in the Workplace report for North America backs this up. While research shows that women and men in financial services begin their careers making up roughly equal portions of entry-level staff, once you get higher up the ladder, women account for only 19% (one in five) of positions in the C-suite.

The research suggests that as women advance through their careers, they steadily lose ground to their male peers at every stage, suggesting the pathway to the CFOs office is not as clearly illuminated for female candidates.

Why women make good CFOs

And yet the evidence suggests that when women do make it to CFO, the payoff for organisations is positive. Companies with female CFOs and CEOs prove more profitable than those led by men, with women-led firms generating US$1.8 trillion more in gross profit than the sector average, according to a report by S&P Global.

Furthermore, as van den Bosch Wazen points out, according to McKinsey’s latest Diversity Wins report, companies with more than 30% of women executives are more likely to outperform companies where this percentage ranged from 10-30%.

“The benefits speak for themselves and I’m thrilled that investors are pushing harder for this,” states van den Bosch Wazen. “The more diverse your management team, the more engaged your workforce, and the better your customers are looked after. You are better informed of the world, you tend not to miss trends, making your balance sheet strong and your organisation run more efficiently.”

Cristina Catania, Partner at McKinsey & Company agrees that gender diversity “enriches decision-making and so has a positive impact on companies’ performance and sustainability”, however more specifically, and in the context of the finance function, she points out that studies have found that “women have higher risk aversion than men and that can be a good thing”.

Maggie Xu, Principal of Greater China Financial Services Practice at Oliver Wyman, agrees suggesting research shows that female CFOs are more risk averse and tend to adopt more conservative accounting policies. And for “those companies/industries with higher litigation risk, default risk, systematic risk, or management turnover risk, who are more focused on accounting conservatism, female CFOs may well do a better job”.

Arguing that women are “equally qualified to effectively address current and future challenges and disruptions”, Hanady Khalife, Senior Director of MEA & India for the Institute of Management Accountants further points out that beyond operations, inclusive working cultures where women leaders exist have been known to attract and retain top talent.

“No matter how you look at it, women leaders are good for business and for building more sustainable, self-sufficient and increasingly shockproof businesses, even economies,” asserts Khalife.

In our roundtable, we talk to these four female financial leaders to identify the barriers facing women and discover how organisations and leaders can facilitate their advancement.

International panel discussing women as CFOs

Julia van den Bosch Wazen
Consultant, Odgers Berndtson’s CFO Practice

Maggie Xu
Principal, Greater China Financial Services Practice, Oliver Wyman

Cristina Catania
Partner, McKinsey & Company

Hanady Khalife
Senior Director, MEA & India Operations, Institute of Management Accountants

Why are women under-represented in senior financial positions, and the CFO role specifically?

Julia van den Bosch Wazen, Consultant, Odgers Berndtson’s CFO Practice: Women in key financial management roles tend to have a shared set of challenges, such as balancing home/work life, which is overcome by having the right support and an engaged sponsor at work. Sponsors are often men in senior management positions. Men are essential in furthering the development of all strands of diversity in the workplace, and the more informed diversity and inclusion allies there are, the better the company performs. COVID has forced the majority of companies to work from home and highlighted to many employers the dual nature of a working woman’s careers. That said, pre-pandemic, many female CFOs said to me that their life was a constant balancing act of whom to disappoint more – their partners, kids, or friends. Senior women rarely disappoint their employers, just like their male peers.

During the executive search processes we run, Boards will actively seek diversity, though in a risk adverse hiring market, like the one that we are in, many end up choosing proven Board experience over and above stepping up talent. It is widely publicised that there are more men in those roles than there are women, and so the balance is again not restored, further facilitating the lack of Board experienced women.

Cristina Catania, Partner, McKinsey & Company Unfortunately, this under-representation of women in senior roles isn’t exclusive to finance – it’s a similar picture in business management and strategy. But, prior to COVID, concentrated efforts were making some gains. Across all industries, we’ve seen women’s representation in the C-suite increase by 24% since 2015, including some notable appointments in the financial sector, like Jane Fraser at Citi. There is, however, a broken rung at the very bottom of the corporate ladder that is stalling progress.

Our annual Women in the Workplace study of women in North America shows that for every 100 men, just 72 women are promoted and hired to manager. Women get stuck at the entry level and fewer become managers. Not surprisingly, men then end up holding 62% of manager-level positions, while women hold just 38%. The number of women decreases at every subsequent level, so despite improved hiring and promotion rates for women at senior levels, they aren’t able to catch up.

Hanady Khalife, Senior Director, MEA & India Operations, Institute of Management Accountants One would assume this is a problem most prevalent in the Middle East but it is global. A National Bureau of Economic Research study from Denmark found that even at the height of their careers, women tend to spend more time raising children, and so work fewer hours, take longer breaks from full-time employment, and are more likely to move into less demanding jobs with lower growth and less pay.

Other reasons include the pay gap, lack of mentorship and coaching, and aggressive competition by male colleagues, as well as lack of female C-suite role models. When women don’t see role models or potential paths towards executive-level leadership, they are more likely to deselect themselves out of such roles.

Maggie Xu, Principal, Greater China Financial Services Practice, Oliver Wyman In research, we identified four critical barriers for women seeking leadership. Firstly, men and women define effective leadership differently, while women leadership candidates tend to be evaluated by men. This misalignment in key leadership traits between the genders creates obstacles to women rising to leadership roles. In China, although significant increase in the ratio of companies with female executives has been observed during the decade, extensive research indicates that the rate for female CEO remains very low, and CEOs are critical in assessing the performance of CFO candidates.

Secondly, women’s focus or predisposition toward results, along with a dislike of ‘networking for networking’s sake,’ may cause them to miss an important dimension of what ultimately impacts leadership promotion decisions. We also discovered that qualified women are unintentionally left on the sidelines, partly because women are simply not top of mind, and so are less likely to self-advocate and must battle inaccurate assumptions related to their willingness to take on more intense roles.

Also, men and women perceive their readiness for the next role very differently, and most companies do not actively mitigate that bias at play. A woman often won’t apply to a job unless she feels she meets 100% of the described qualifications, while for men, it’s more like 60% and as we all know, raising one’s hand does not necessarily equate with capability.

Finally, research shows women are more likely to have ideas mis-attributed to others, be talked over in meetings, receive vague or unconstructive feedback, and be viewed negatively for visibly demonstrating the same confidence that is valued in male leaders. Many high potential women, weary of bias, exit the talent pipeline, either opting out of the workforce or choosing a different career.

How can organisations and leaders motivate, empower and facilitate women in reaching CFO status?

Julia van den Bosch Wazen Mentorship from senior colleagues is vital in helping women to navigate the mid-point of their career. Our philosophy in the CFO Practice facilitates that same ethos: we want to help advise women early on to help build careers toward the three-stage interview process they will face when stepping up to their first Main Board role. A financial management career for a listed CFO role needs to be built to answer the questions a CEO will pose (do you have commercial and operational P&L experience to be my partner in setting strategic goals); the Audit Chair (will you give me comfort in your technical financial management skills to assure that the business will not have to restate its numbers); and the Chair (do you keep my CEO ‘in check’, and will you let my Audit Chair rest easy at night).

There are a number of roles within the finance function I strongly encourage women to take en route to Board, to gather experience against the above criteria. I also urge women to do more external networking. I’ve set up bi-annual women’s networking lunches giving senior female talent the opportunity to hear how experienced finance leaders have successfully developed their careers. These have been well-received and have now broadened out to both our Regional CFO and Financial Services Practices to help deepen the advice shared.

When selecting a headhunting firm, I would urge that you ask what they are doing to support the D&I agenda during the pitch process. Your candidate list might well be diverse, but if you see that those who are looking likely to be shortlisted are all non-diverse, check why, and what can be actioned based on feedback.

Cristina Catania Talent attraction is the first step to sustaining a pipeline to fill CFO roles long term. For finance, there is a need to create multiple role model examples to inspire young women to join this career path, which is increasingly at the centre of key company decision-making. We know from our study that when employees believe that their company offers both fairness and opportunity, they are three times more likely to remain at the company, be fully engaged and recommend the company to a peer. What we know about the experiences of women at entry levels in financial services indicates that a perceived lack of fairness and opportunity could be contributing to the steep drop-off in female representation between entry-level and middle management roles.

Specifically, women early in their careers are less likely to aspire to top positions. This could be due to a lack of female role models, but women also report less interest in executive roles due to concerns about balancing work and family and the perceived pressure that accompanies top jobs. Even when women do aspire to the top positions, they typically do not receive the sponsorship support that would enable them to succeed.

Our 2017 Women in the Workplace research shows that women who receive advice from senior leaders on career advancement are more likely to be promoted, and yet earlier-tenure women receive less encouragement and support from senior leaders than do their male counterparts.

The programmes that are showing impact in creating a sustainable pipeline of women start with the creation of a more ‘inclusive’ workplace, created through HR parental policies (applicable also to fathers, which in turn allows for shared parental responsibilities) and doubling-down on additional welfare services like in-office daycare.

Other measures include removing gender biases in assessing criteria for being eligible for a promotion, flexibility arrangements, leveraging maternity as an upskilling moment, the introduction of sponsorship programmes, and measuring and publishing target setting. And all steps need to be truly sponsored and promoted by the CEO and cascaded throughout the whole organisation.

Hanady Khalife Increasing opportunities for women to advance to leadership roles in the organisation begins with understanding the internal pipeline to identify barriers and obstacles to advancement and in turn, establishing measurable goals for building equity.

Organisations need to develop corporate cultures that support women who wish to achieve a healthy work/life balance, rather than breed cultures that penalises them for attempting to balance priorities. But while firms need to focus on more affirmative action to ensure gender equality, whether through quotas or recruitment programmes, they also need to pay more attention to how women can be mentored better to keep pace with new and emerging industry requirements. 

Maggie Xu Organisations can be more purposeful in levelling the playing field for women, and by changing the emphasis from fixing things bottom up to top-down, effects will take place faster. We believe there are three core elements in this effort: inclusive leadership starts at the top, so educate your existing leadership and motivate them to be change agents; target D&I like a business to get more results; and double down on sponsorship, improving the effectiveness of senior leaders’ sponsorship of the women.

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