Tag Archives: financial statement

ID Theft: A Danger Even After Death

Take your driver’s license out of your wallet. Flip it over. Now look carefully at the back of it. There’s no box to check for “identity donor.” Yet when it comes to identity-related crimes, one of the greatest times of vulnerability is immediately after you die.

You can do everything right. You can use long and strong passwords and account-unique user names. You can check your financial accounts and monitor your credit on a regular basis, you can set up transaction alerts on your credit cards – even order a credit freeze – and then you die. Well, not entirely…

Include Identity in Your Estate Planning

A good identity thief can undo all your fraud precautions with a few phone calls. Most people don’t think about this, because it’s a wee bit late to refinance the family homestead – much less worry about interest rates – when you’re dead. Regardless, the recently deceased continue to exist on paper, and this may be the case for some time. Meanwhile, many bankable facts – key among them your Social Security number and personally identifiable information – are just sort of there in the form of “zombie” purchasing power. An identity thief can use that purchasing power to drain your bank accounts, open new credit in your name and perpetrate all sorts of fraud that can harm your family and heirs.

Think of your post-mortem identity as a would-be extra on “The Shopping Dead.” Now that you have that image in your head, take the time to arrange for the deactivation of your identity by making it part of your estate planning. This will mostly take the form of a to-do list for whomever will be handling your affairs, because nothing can be done till…well, you know, after the fact. There are many good resources, including this list from IDT911.

There are many different scams out there, ranging from the misappropriation of Social Security payments to the more old-fashioned practice of ghosting, whereby a person of approximately the same age assumes the identity of the deceased. In keeping with the proliferation of possible crimes, there are plenty of criminals out there who make a living in this post-mortem niche. They scan death notices in the local paper, read obituaries, even attend funerals and, make no mistake about it, can get a lot of shopping done with your available credit before the three credit reporting agencies and your current and future potential creditors are notified of your demise. Those same bad guys may also use your Social Security number to grab a big fat tax refund (if you’re lucky enough to pass away during tax filing season).

How will they get the information needed to commit fraud? Sometimes the perpetrator is a family member, so he already has access. But more often, family members are distracted and distraught. There are visitors who come and go, unchecked, and of course the numerous demands of making final arrangements and dealing with matters of the estate. If there was a long illness, unsupervised healthcare workers may have had the run of the deceased’s domicile – including the owner’s most sensitive information. Maybe the wake was at the deceased’s home, or people sat shiva there. The opportunities for fraud abound. Funerals, of course, provide a thief with a precise time to get what he or she wants. But instead of grabbing the television or the silver (too easy to miss), an envelope containing a financial statement or a copy of last year’s tax return might go walkabout. From there, it’s a race to apply for as much credit and buy as many pricy things for resale as possible before the money spigot coughs credit dust.

The Bigger Picture

Government agencies are famously slow to get the news of a person’s undoing.

An audit of the Social Security Administration conducted by the Office of the Inspector General found approximately 6.5 million Social Security numbers belonging to people aged 112 or older whose death information wasn’t in the system. Of those numberholders, only 13 people were still receiving payments; the rest consisted of “numberholders who exceeded maximum reasonable life expectancies and were likely deceased.” The fact that their deaths were not recorded in Numident (the SSA’s numerical identification system), and thus are also missing on the Master Death List, leaves plenty of runway for misconduct. According to the audit report, the “SSA received 4,024 E-Verify inquiries using the SSNs of 3,873 numberholders born before June 16, 1901.”

On the off chance you missed the memo while diving for sunken treasure at the bottom of Loon Lake: Identity theft is now the third certainty in life, right behind death and taxes. When a loved one passes, there is a trifecta, which is why it’s trebly important to protect against the threat of a different kind of life everlasting.

Future of Securities Class Actions

Securities litigation has a culture defined by multiple elements: the types of cases filed, the plaintiffs’ lawyers who file them, the defense counsel who defend them, the characteristics of the insurance that covers them, the way insurance representatives approach coverage, the government’s investigative policies – and, of course, the attitude of public companies and their directors and officers toward disclosure and governance.

This culture has been largely stable over the nearly 20 years I’ve defended securities litigation matters full time. The array of private securities litigation matters (in the way I define securities litigation) remains the same – in order of virulence: securities class actions, shareholder derivative litigation matters (derivative actions, board demands and books-and-records inspections) and shareholder challenges to mergers. The world of disclosure-related SEC enforcement and internal corporate investigations is basically unchanged, as well. And the art of managing a disclosure crisis, involving the convergence of shareholder litigation, SEC enforcement and an internal investigation involves the same basic skills and instincts.

But I’ve noted significant changes to other characteristics of securities-litigation culture recently, which portend a paradigm shift. Over the past few years, smaller plaintiffs’ firms have initiated more securities class actions on behalf of individual, retail investors, largely against smaller companies that have suffered what I call “lawsuit blueprint” problems such as auditor resignations and short-seller reports. This trend – which has now become ingrained into the securities-litigation culture – will significantly influence the way securities cases are defended and by whom, and change the way that D&O insurance coverage and claims need to be handled.

Changes in the Plaintiffs’ Bar

Discussion of the history of securities plaintiffs’ counsel usually focuses on the impact of the departures of former giants Bill Lerach and Mel Weiss. But although the two of them did indeed cut a wide swath, the plaintiffs’ bar survived their departures just fine. Lerach’s former firm is thriving, and there are strong leaders there and at other prominent plaintiffs’ firms.

The more fundamental shifts in the plaintiffs’ bar concern changes to filing trends. Securities class action filings are down significantly over the past several years, but, as I have written, I’m confident they will remain the mainstay of securities litigation and won’t be replaced by merger cases or derivative actions. There is a large group of plaintiffs’ lawyers who specialize in securities class actions, and there are plenty of stock drops that give them good opportunities to file cases. Securities class action filings tend to come in waves, both in the number of cases and type. Filings have been down over the last several years for multiple reasons, including the lack of plaintiff-firm resources to file new cases as they continue to litigate stubborn and labor-intensive credit-crisis cases, the rising stock market and the lack of significant financial restatements.

Although I don’t think the downturn in filings is, in and of itself, very meaningful, it has created the opportunity for smaller plaintiffs’ firms to file more securities class actions. The Reform Act’s lead plaintiff process gives plaintiffs’ firms incentives to recruit institutional investors to serve as plaintiffs. For the most part, institutional investors, whether smaller unions or large funds, have retained the more prominent plaintiffs’ firms, and smaller plaintiffs’ firms have been left with individual investor clients who usually can’t beat out institutions for the lead-plaintiff role. At the same time, securities class action economics tightened in all but the largest cases. Dismissal rates under the Reform Act are pretty high, and defeating a motion to dismiss often requires significant investigative costs and intensive legal work. And the median settlement amount of cases that survive dismissal motions is fairly low. These dynamics placed a premium on experience, efficiency and scale. Larger firms filed most of the cases, and smaller plaintiffs’ firms were unable to compete effectively for the lead plaintiff role or make much money on their litigation investments.

This started to change with the wave of cases against Chinese issuers in 2010. Smaller plaintiffs’ firms initiated most of them, as the larger firms were swamped with credit-crisis cases and likely were deterred by the relatively small damages, potentially high discovery costs and uncertain insurance and company financial resources. Moreover, these cases fit smaller firms’ capabilities well; nearly all of the cases had “lawsuit blueprints” such as auditor resignations or short-seller reports, thereby reducing the smaller firms’ investigative costs and increasing their likelihood of surviving a motion to dismiss. The dismissal rate has indeed been low, and limited insurance and company resources have prompted early settlements in amounts that, while on the low side, appear to have yielded good outcomes for the smaller plaintiffs’ firms.

The smaller plaintiffs’ firms thus built up a head of steam that has kept them going, even after the wave of China cases subsided. For the last year or two, following almost every “lawsuit blueprint” announcement, a smaller firm has launched an “investigation” of the company, and smaller firms have initiated an increasing number of cases. Like the China cases, these tend to be against smaller companies. Thus, smaller plaintiffs’ firms have discovered a class of cases – cases against smaller companies that have suffered well-publicized problems that reduce the plaintiffs’ firms’ investigative costs – for which they can win the lead plaintiff role and that they can prosecute at a sufficient profit margin.

To be sure, the larger firms still mostly can and will beat out the smaller firms for the cases they want. But it increasingly seems clear that the larger firms don’t want to take the lead in initiating many of the cases against smaller companies and are content to focus on larger cases on behalf of their institutional investor clients.

These dynamics are confirmed by recent securities litigation filing statistics. Cornerstone Research’s “Securities Class Action Filings: 2014 Year in Review” concludes that (1) aggregate market capitalization loss of sued companies was at its lowest level since 1997 and (2) the percentage of S&P 500 companies sued in securities class actions “was the lowest on record.” Cornerstone’s “Securities Class Action Filings: 2015 Midyear Assessment” reports that two key measures of the size of cases filed in the first half of 2015 were 43% and 65% lower than the 1997-2014 semiannual historical averages. NERA Economic Consulting’s “Recent Trends in Securities Class Action Litigation: 2014 Full-Year Review” reports that 2013 and 2014 “aggregate investor losses” were far lower than in any of the prior eight years. And PricewaterhouseCoopers’ “Coming into Focus: 2014 Securities Litigation Study” reflects that, in 2013 and 2014, two-thirds of securities class actions were against small-cap companies (market capitalization less than $2 billion) and that one-quarter were against micro-cap companies (market capitalization less than $300 million). These numbers confirm the trend toward filing smaller cases against smaller companies, so that now, most securities class actions are relatively small cases.

Consequences for Securities Litigation Defense

Securities litigation defense must adjust to this change. Smaller securities class actions are still important and labor-intensive matters – a “small” securities class action is still a big deal for a small company and the individuals accused of fraud, and the number of hours of legal work to defend a small case is still significant. This is especially so for the “lawsuit blueprint” cases, which typically involve a difficult set of facts.

Yet most securities defense practices are in firms with high billing rates and high associate-to-partner ratios, which make it uneconomical for them to defend smaller litigation matters. It obviously makes no sense for a firm to charge $6 million to defend a case that can settle for $6 million. It is even worse for that same firm to attempt to defend the case for $3 million instead of $6 million by cutting corners – whether by under-staffing, over-delegation to junior lawyers or avoiding important tasks. It is worse still for a firm to charge $2 million through the motion to dismiss briefing and then, if it loses, to settle for more than $6 million just because it can’t defend the case economically past that point. And it is a strategic and ethical minefield for a firm to charge $6 million and then settle for a larger amount than necessary so that the fees appear to be in line with the size of the case.

Nor is the answer to hire general commercial litigators at lower rates. Securities class actions are specialized matters that demand expertise, consisting not just of knowledge of the law but of relationships with plaintiffs’ counsel, defense counsel, economists, mediators and D&O brokers and insurers.

Rather, what is necessary is genuine reform of the economics of securities litigation defense through the creation of a class of experienced securities litigators who charge lower rates and exhibit tighter economic control. Undoubtedly, that will be difficult to achieve for most securities defense lawyers, who practice at firms with supercharged economics. The lawyers who wish to remain securities litigation specialists will thus face a choice:

  1. Accept that the volume of their case load will be reduced, as they forego smaller matters and focus on the largest matters (which Biglaw firms are uniquely situated to handle well, on the whole);
  2. Rein in the economics of their practices, by lowering billing rates of all lawyers on securities litigation matters, and by reducing staffing and associate-to-partner ratios; or
  3. Move their practices to smaller, regional defense firms that naturally have more reasonable economics.

I’ve taken the third path, and I hope that a number of other securities litigation defense lawyers will also make that shift toward regional defense firms. A regional practice can handle cases around the country, because litigation matters can be effectively and efficiently handled by a firm based outside of the forum city. And they can be handled especially efficiently by regional firms outside of larger cities, which can offer a better quality of life for their associates and a more reasonable economic model for their clients.

Consequences for D&O Insurance

D&O insurance needs to change, as well. For public companies, D&O insurance is indemnity insurance, and the insurer doesn’t have the duty or right to defend the litigation. The insured selects counsel, and the insurer has a right to consent to the insured’s selection, but such consent can’t be unreasonably withheld. D&O insurers are in a bad spot in a great many cases. Because most experienced securities defense lawyers are from expensive firms, most insureds select an expensive firm. But in many cases that spells a highly uneconomical or prejudicial result, through higher than necessary defense costs or an early settlement that doesn’t reflect the merits but that is necessary to avoid using most or all of the policy limits on defense costs.

Given the economics, it certainly seems reasonable for an insurer to at least require an insured to look at less expensive (but just as experienced) defense counsel before consenting to the choice of counsel – if not outright withholding consent to a choice that does not make economic sense for a particular case. If that isn’t practical from an insurance law or commercial standpoint, insurers may well need to look at enhancing their contractual right to refuse consent or even to offer a set of experienced but lower-cost securities defense practices in exchange for a lower premium. It is my strong belief that a great many public company CFOs would choose a lower D&O insurance premium over an unfettered right to choose their own defense lawyers.

Because I’m not a D&O insurance lawyer, I obviously can’t say what is right for D&O insurers from a commercial or legal perspective. But it seems obvious to me that the economics of securities litigation must change, both in terms of defense costs and defense-counsel selection, to avoid increasingly irrational economic results.

Future of Securities Class Actions

Securities litigation has a culture defined by multiple elements: the types of cases filed, the plaintiffs’ lawyers who file them, the defense counsel who defend them, the characteristics of the insurance that covers them, the way insurance representatives approach coverage, the government’s investigative policies – and, of course, the attitude of public companies and their directors and officers toward disclosure and governance.

This culture has been largely stable over the nearly 20 years I’ve defended securities litigation matters full-time. The array of private securities litigation matters (in the way I define securities litigation) remains the same – in order of virulence: securities class actions, shareholder derivative litigation matters (derivative actions, board demands and books-and-records inspections) and shareholder challenges to mergers. The world of disclosure-related SEC enforcement and internal corporate investigations is basically unchanged, as well. And the art of managing a disclosure crisis, involving the convergence of shareholder litigation, SEC enforcement and an internal investigation, involves the same basic skills and instincts.

But I’ve noted significant changes to other characteristics of securities-litigation culture recently, which portend a paradigm shift. Over the past few years, smaller plaintiffs’ firms have initiated more securities class actions on behalf of individual, retail investors, largely against smaller companies that have suffered what I call “lawsuit blueprint” problems such as auditor resignations and short-seller reports. This trend – which has now become ingrained into the securities-litigation culture – will significantly influence the way securities cases are defended and by whom, and change the way that D&O insurance coverage and claims need to be handled.

Changes in the Plaintiffs’ Bar

Discussion of the history of securities plaintiffs’ counsel usually focuses on the impact of the departures of giants Bill Lerach and Mel Weiss. But although the two of them did indeed cut a wide swath, the plaintiffs’ bar survived their departures just fine. Lerach’s former firm is thriving, and there are strong leaders there and at other prominent plaintiffs’ firms.

The more fundamental shifts in the plaintiffs’ bar concern changes to filing trends. Securities class action filings are down significantly over the past several years, but I’m confident they will remain the mainstay of securities litigation and won’t be replaced by merger cases or derivative actions. There is a large group of plaintiffs’ lawyers who specialize in securities class actions, and there are plenty of stock drops that give them good opportunities to file cases. Securities class action filings tend to come in waves, both in the number of cases and type. Filings have been down over the last several years for multiple reasons, including the lack of plaintiff-firm resources to file new cases as they continue to litigate stubborn and labor-intensive credit-crisis cases, the rising stock market and the lack of significant financial-statement restatements.

Although I don’t think the downturn in filings is, in and of itself, very meaningful, it has created the opportunity for smaller plaintiffs’ firms to file more securities class actions. The Reform Act gave plaintiffs’ firms incentives to recruit institutional investors to serve as plaintiffs. For the most part, institutional investors, whether smaller unions or large funds, have retained the more prominent plaintiffs’ firms, and smaller plaintiffs’ firms have been left with individual investor clients who usually can’t beat out institutions for the lead-plaintiff role. At the same time, securities class action economics tightened in all but the largest cases. Dismissal rates under the Reform Act are pretty high, and defeating a motion to dismiss often requires significant investigative costs and intensive legal work. And the median settlement amount of cases that survive dismissal motions is fairly low. These dynamics placed a premium on experience, efficiency and scale. Larger firms filed most of the cases, and smaller plaintiffs’ firms were unable to compete effectively for the lead plaintiff role, or make much money on their litigation investments.

This started to change with the wave of cases against Chinese issuers in 2010. Smaller plaintiffs’ firms initiated most of them, as the larger firms were swamped with credit-crisis cases and likely were deterred by the relatively small damages, potentially high discovery costs and uncertain insurance and company financial resources. Moreover, these cases fit smaller firms’ capabilities well; nearly all of the cases had “lawsuit blueprints” such as auditor resignations or short-seller reports, thereby reducing the smaller firms’ investigative costs and increasing their likelihood of surviving a motion to dismiss. The dismissal rate has indeed been low, and limited insurance and company resources have prompted early settlements in amounts that, while on the low side, appear to have yielded good outcomes for the smaller plaintiffs’ firms.

The smaller plaintiffs’ firms thus built up a head of steam that has kept them going, even after the wave of China cases subsided. For the last year or two, following almost every “lawsuit blueprint” announcement, a smaller firm has launched an “investigation” of the company, and these firms have initiated an increasing number of cases. Like the China cases, these cases tend to be against smaller companies. Thus, smaller plaintiffs’ firms have discovered a class of cases – cases against smaller companies that have suffered well-publicized problems that reduce the plaintiffs’ firms’ investigative costs – for which they can win the lead plaintiff role and can prosecute at a sufficient profit margin.

To be sure, the larger firms still mostly will beat out the smaller firms for the cases they want. But it increasingly seems clear that the larger firms don’t want to take the lead in initiating many of the cases against smaller companies, and are content to focus on larger cases on behalf of their institutional investor clients.

These dynamics are confirmed by recent securities litigation filing statistics. Cornerstone Research’s “Securities Class Action Filings: 2014 Year in Review” concludes that (1) aggregate market capitalization loss of sued companies was at its lowest level since 1997, and (2) the percentage of S&P 500 companies sued in securities class actions “was the lowest on record.” Cornerstone’s “Securities Class Action Filings: 2015 Midyear Assessment” reports that two key measures of the size of cases filed in the first half of 2015 were 43% and 65% lower than the 1997-2014 semiannual historical averages. NERA Economic Consulting’s “Recent Trends in Securities Class Action Litigation: 2014 Full-Year Review” reports that 2013 and 2014 “aggregate investor losses” were far lower than in any of the prior eight years. And PricewaterhouseCoopers’ “Coming into Focus: 2014 Securities Litigation Study” reflects that in 2013 and 2014, two-thirds of securities class actions were against small-cap companies (market capitalization less than $2 billion), and one-quarter were against micro-cap companies (market capitalization less than $300 million). These numbers confirm the trend toward filing smaller cases against smaller companies, so that now most securities class actions are relatively small cases.

Consequences for Securities Litigation Defense

Securities litigation defense must adjust to this change. Smaller securities class actions are still important and labor-intensive matters – a “small” securities class action is still a big deal for a small company and the individuals accused of fraud, and the number of hours of legal work to defend a small case is still significant. This is especially so for the “lawsuit blueprint” cases, which typically involve a difficult set of facts.

Yet most securities defense practices are in firms with high billing rates and high associate-to-partner ratios, which make it uneconomical for them to defend smaller litigation matters. It obviously makes no sense for a firm to charge $6 million to defend a case that can settle for $6 million. It is even worse for that same firm to attempt to defend the case for $3 million instead of $6 million by cutting corners – whether by under-staffing, over-delegation to junior lawyers or avoiding important tasks. It is worse still for a firm to charge $2 million through the motion to dismiss briefing and then, if it loses, to settle for more than $6 million just because it can’t defend the case economically past that point. And it is a strategic and ethical minefield for a firm to charge $6 million and then settle for a larger amount than necessary so that the fees appear to be in line with the size of the case. .

Nor is the answer to hire general commercial litigators at lower rates. Securities class actions are specialized matters that demand expertise, consisting not just of knowledge of the law but of relationships with plaintiffs’ counsel, defense counsel, economists, mediators and D&O brokers and insurers.

Rather, what is necessary is genuine reform of the economics of securities litigation defense through the creation of a class of experienced securities litigators who charge lower rates and exhibit tighter economic control. Undoubtedly, that will be difficult to achieve for most securities defense lawyers, who practice at firms with supercharged economics. The lawyers who wish to remain securities litigation specialists will thus face a choice:

  1. Accept that the volume of their case load will be reduced, as they forego smaller matters and focus on the largest matters (which big law firms are uniquely situated to handle well, on the whole);
  2. Rein in the economics of their practices, by lowering billing rates of all lawyers on securities litigation matters and by reducing staffing and associate-to-partner ratios; or
  3. Move their practices to smaller, regional defense firms that naturally have more reasonable economics.

I’ve taken the third path, and I hope that a number of other securities litigation defense lawyers will also make that shift toward regional defense firms. A regional practice can handle cases around the country, because litigation matters can be effectively and efficiently handled by a firm based outside of the forum city. And they can be handled especially efficiently by regional firms outside of larger cities, which can offer a better quality of life for their associates and a more reasonable economic model for their clients.

Consequences for D&O Insurance

D&O insurance needs to change, as well. For public companies, D&O insurance is indemnity insurance, and the insurer doesn’t have the duty or right to defend the litigation. Thus, the insured selects counsel, and the insurer has a right to consent to the insured’s selection, but such consent can’t be unreasonably withheld. D&O insurers are in a bad spot in a great many cases. Because most experienced securities defense lawyers are from expensive firms, most insureds select an expensive firm. But in many cases, that spells a highly uneconomical or prejudicial result, through higher than necessary defense costs or an early settlement that doesn’t reflect the merits, but that is necessary to avoid using most or all of the policy limits on defense costs.

Given the economics, it certainly seems reasonable for an insurer to at least require an insured to look at less expensive (but just as experienced) defense counsel before consenting to the choice of counsel – if not outright withholding consent to a choice that does not make economic sense for a particular case. If that isn’t practical from an insurance law or commercial standpoint, insurers may well need to look at enhancing their contractual right to refuse consent, or even to offer a set of experienced but lower-cost securities defense practices in exchange for a lower premium. It is my strong belief that a great many public company CFOs would choose a lower D&O insurance premium over an unfettered right to choose their own defense lawyers.

Because I’m not a D&O insurance lawyer, I obviously can’t say what is right for D&O insurers from a commercial or legal perspective. But it seems obvious to me that the economics of securities litigation must change, both in terms of defense costs and defense-counsel selection, to avoid increasingly irrational economic results.

Fraud: When Mom Is Your Worst Enemy

Mother’s Day is a special time to celebrate all those kisses and hugs, the rides to the mall, the doctors’ appointments, the countless soccer-basketball-baseball games, a special note tucked into a pocket or care package sent to camp. But remember, sometimes it’s what a person doesn’t do that matters, and some moms are just bad to the bone.

More than 30% of identity theft cases involve a family member or close friend. The reason is simple: access. Whether it’s your mother, father, foster families, siblings, close friends or your spouse—access often is the only catalyst needed to turn your credit report into a crime scene. Here are a few examples from the Mommy Dearest files.

Betz Noir

Axton Betz-Hamilton discovered she was an identity theft victim when she rented her first apartment and was told that a deposit was required to turn on the electricity because she had bad credit. She thought she had no credit at all. Her credit report said otherwise. Her assumption at the time was that whoever stole her parents’ credit a while back had hit hers, as well. Then the truth came out.

Betz-Hamilton’s mom, Pamela Betz, died in 2013. Shortly after that, Betz-Hamilton says her father discovered a box that contained credit card statements in Axton’s name, so he called to razz her about her profligate spending. He then discovered he also had some crazy spending, and so did his father, who lived with them. They all allegedly were hit by Mama Betz.

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No Cheers for This Mom

Some mothers have a hard time giving their kids space to grow and become their own person. Others can be smothering to the point that children can’t do anything on their own, but Wendy Brown took it to another level when she used her daughter’s identity and showed up for cheerleader tryouts at Ashwaubenon High School in Wisconsin.

With her daughter living in another state with family, Brown, 33, decided it was time to get her high school diploma—and it seems, while she was at it, get another shot at the high school experience. She was caught by truancy officers and sentenced to three years in a psychiatric hospital.

G.I. Jane Deferred

Cassidy McKenna had just graduated from high school and was excited about enlisting in the armed forces. But when she signed up, they wouldn’t take her. While it’s generally known that bad credit can affect a soldier’s security clearance, the Armed Forces also will turn down prospective recruits with unpaid debts that are overdue or in collection, until the issues are resolved.

McKenna said she didn’t know that she had bad credit. She had always lived at home and had no credit cards. The damage was caused by an outstanding electric bill for $1,755 and another $1,123 owed to a cable provider. When she confronted her mother about the bills, she said her mom went AWOL, only turning up at the Kerr County Courthouse, where she was answering McKenna’s theft charges against her.

Apple of Her Eye?

Mom and alleged fraudster Kristina Anh Giusti, 44, of Garden Grove, CA, first attracted the attention of the Chino Hills Police Department after an investigation into $800 in fraudulent credit card charges at local retailers. Investigators say the evidence they collected points to Giusti’s making the charges.

According to CBS Los Angeles, police found “altered credit cards issued in the suspect’s name, six laptops, two tablets, an embossing machine and a tip card machine used for forging credit cards. … Detectives also found a card encoder, several boxes of white stock credit cards, a money counter” and $11,000 in cash. Police allege the woman had two accomplices … one of them her daughter.

‘In the Family Way’ Fraud

Hairdresser Jennifer Perik, from DuPage County outside of Chicago, is expecting both a baby and a criminal trial in the months to come. If the charges stick, she will join the ranks of identity-thief moms.

Perik is accused of making $6,000 in fraudulent charges on a Discover card that belonged to her hair client, a 94-year-old woman. Investigators say that more than half that amount went to a sperm bank with offices in Virginia and Maryland that boasts high-quality donors. At a bond reduction hearing, Assistant State’s Attorney Diane Michalak said that Perik was seven weeks pregnant, but that it was not known if the pregnancy was the result of in vitro fertilization.

We’re always talking about identity theft being the third certainty in life, yet the crime almost always takes victims by surprise—all the more if the perp is Mom. It’s always a good idea to take protective measures to reduce your risk, but even then it’s impossible to entirely prevent the crime from happening. You can, however, reduce the damage from fraud by detecting it as quickly as possible. Check your financial statements—ideally online, every day—for any fraudulent charges, and dispute anything you didn’t authorize. Request your credit reports, which you can get for free once a year, to look for new accounts that you don’t recognize. And your credit scores serve as your snapshot of your credit health—by tracking them over time, you can catch any big, unexpected changes that may be a sign of a big, unexpected problem. You can get your credit scores for free from many sources, including Credit.com.

This Mother’s Day, celebrate the women who have done so much for us—and thank your lucky stars that your mom isn’t a fraudster. Or is she? … Maybe wait until Monday to investigate.

This piece was written by Adam Levin. Levin is chairman and co-founder of Credit.com and Identity Theft 911. His experience as former director of the New Jersey Division of Consumer Affairs gives him unique insight into consumer privacy, legislation and financial advocacy. He is a nationally recognized expert on identity theft and credit.

How to Boost Your Firm’s Credit Rating

Credit rating is a highly concentrated industry, with the two largest CRAs, Moody’s Investors Service and Standard & Poor’s (S&P) controlling 80% of the global market share, and the “Big Three” credit rating agencies, which also include Fitch Ratings, controlling approximately 95% of the business. While the value of the rating agencies has been highly questioned, they remain critically important to many organizations. Risk managers can play a key role in preserving and improving their organizations’ credit rating.

Having had the opportunity to participate in rating agency presentations for a publicly traded company and a non-profit, I learned that the process was similar for both and that the stakes were high, requiring a tremendous amount of preparation. In the case of the publicly traded company, my presentation materials were focused on traditional risk management and audit practice (it was the ‘90s), and with the non-profit my focus was on enterprise risk management (progress). The following, though not a comprehensive description of the rating process, describes key areas where risk managers should focus:

  • Engage with the lead on the rating team (typically within the CFO division)
    • Prepare a high level report for the lead’s review. Provide information regarding how the organization is addressing risks, both insurable and non-insurable.
  • Inquire about the rating agency criteria
    • Agencies do not use the same criteria, but they are required to be transparent about the criteria and will share them beforehand. Through inquiry, you can identify the areas of risk that will be their focus. Read other institutions’ credit reports for clues.
  • Know your financial statements
    • Carefully review your financial statements for what the rating agency analyst will be looking for: debt, finances, significant litigation, mergers and acquisitions, etc. and be prepared to address questions around risk in all these areas.
  • Understand the metrics that are used
    • In addition to financial metrics, the focus will also be on legal review, risk management and governance.
      • Strategies and polices
      • Board composition and capabilities
      • Bank covenants
      • Management turnover
      • Ability to anticipate, predict and respond to potential challenges
  • Rehearse your presentation
    • It is common to rehearse individually and as a group for the presentation. Your presentation time will likely be less than 30 minutes. There may also be tours provided to the rating agency analysts, so assist in preparing the people involved and the physical location.

What can lead to a downgrade? Failure to meet targets, two or more years of declining revenue, debt burden that exceeds 10% of operating revenue, significant turnover in leadership and litigation.

What can lead to an upgrade?  Consistent financial performance, lower debt burden, modest future capital plans (not overextending) and a strong enterprise risk management program.

At the University of California (UC), we presented our enterprise risk management program during the rating agency review. Universities access the capital markets to finance their working capital need, so a strong credit rating is critical. The result was that UC was the first non-financial institution to receive credit agency acknowledgement of an enterprise risk management program. S&P’s RatingsDirect on the Global Credit Portal wrote on Sept. 9, 2010: “The UC has implemented a system-wide enterprise risk management information system, which in our opinion, is a credit strength.”

As a result of the presentation, Standard & Poor’s requested that we conduct a webinar on Enterprise Risk Management in Higher Education for its analyst in New York and has continued to focus on the importance of ERM. The company has written: “Standard & Poor’s Ratings Services has expanded its review of the financial service industry’s enterprise risk management (ERM) practices. This enterprise risk management initiative is an effort to provide more in-depth analysis and incisive commentary on the many critical dimensions of risk that determine overall creditworthiness. This enhancement is part of Standard & Poor’s holistic assessment of enterprise risk management of corporations and financial institutions. Standard & Poor’s is continually enhancing its ratings process to respond to the emergence of new risks and marketplace needs and conditions.”

The presentation centered on demonstrating that risk management programs and tools were in place and effective, fulfilling the following criteria:

ERM aims to measure an institution’s achievement of four primary objectives:

  1. Strategic – High-level goals that are aligned with and support the institution’s mission
  2. Operational – Continuing management process and daily activities of the organization
  3. Financial reporting – Protection of the institution’s assets and quality of financial reporting
  4. Compliance – The institution’s adherence to applicable laws and regulations

Within each of these four objectives, there are eight related components:

  1. Internal environment – The general culture, values and environment in which an institution operates. (e.g., tone at the top)
  2. Objective-setting – The process management uses to set its strategic goals and objectives, establishing the organization’s risk appetite and risk tolerance
  3. Event identification – Identifying events that influence strategy and objectives, or could affect them
  4. Risk assessment – Assessment of the impact and likelihood of events, and a prioritization of related risks
  5. Risk response – Determining how management will respond to the risks an institution faces. Will they avoid the risk, share the risk or mitigate the risk through updated practices and policies?
  6. Control activities – Represent policies and procedures that an institution implements to address these risks
  7. Information and communication – Practices that ensure that the right information is communicated at the right time to the right people
  8. Monitoring – Consists of continuing evaluations to ensure controls are functioning as designed, and taking corrective action to enhance control activities if needed

Your criteria (framework) could be different; the key is to demonstrate that you have an effective means of identifying, managing and monitoring a wide variety of risks across the enterprise. Of primary importance is the identification of risks. The analysts are very concerned that organizations are going to be hit by surprises and thus be ill-prepared to respond and recover from them.

Examples of programs and tools that evidence your ability to detect risks:

  • Policies that are supported by awareness and education (people know the right thing to do), backed up with reward and accountability for doing the right thing – built into employee selection process, job description, development plans and reviews and compensation plans (people want to do the right thing)
  • Multiple reporting channels – anonymous hotlines for employees, customers and the public and ease of access to human resources, compliance, risk management and legal and the inclusion of continual communication that retaliation is not tolerated
  • Incident reporting and tracking systems (claims, safety, human resources information systems, etc.)
  • Risk assessments at both an enterprise level and at the functional level
  • Business intelligence system – the ability to aggregate and analyze data across the organization to enhance detection and advance predictive modeling

Key takeaway: As a risk manager or enterprise risk practitioner, your engagement in the credit rating process is an ideal way for you to add value. Leverage your ERM program to highlight your organization’s ability to detect, manage and respond to risk events.