A showdown over Wells Fargo’s board of directors looms

Stacey Cowley and Michael Corkery

The scandal at Wells Fargo over the creation of millions of fake bank accounts cost more than 5,300 people their jobs, many of them tellers and other low-level employees.

Protesters outside a Wells Fargo building in New York.
Erik McGregor | Pacific Press | LightRocket | Getty Images

The bank then clawed back tens of millions of dollars in pay from its retired chief executive and fired the former head of the retail operation.

The next group of employees who could lose their jobs are Wells Fargo's board of directors, who face re-election on Tuesday at the bank's annual shareholder meeting.

Giant pension funds — like Calpers, which manages the retirement funds of California's public employees, and its New York City counterpart — are planning to vote against most of Wells's 15 board members, saying they failed in their duties to oversee the company.

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The bank does have one influential ally: Warren Buffett, whose firm, Berkshire Hathaway, owns about 10 percent of the company's shares. He has signaled that he intends to back the incumbent board, and his support could ultimately carry more weight than that of investors like pension funds, which tend to be more vocal in their criticism.

As of late Monday, a few large shareholders were leaning toward voting against some board members. (Two people joined the board in February, after the scandal had been widely exposed.)

Wells Fargo chairman and CEO buy shares

"If there is a serious failure in oversight, directors need to be held accountable," said Scott M. Stringer, the New York City comptroller. He helps oversee the city's pension funds, which are planning to vote against most of the bank's 15 directors.

Wells Fargo has argued that ousting the board would be extreme and unnecessary because the bank has already taken aggressive steps like clawing back executive pay and reworking sales incentives in its retail banking.

In its defense, the board has said bank executives were not entirely forthcoming with directors about the extent of the fraud, according to an internal investigation into the scandal that was commissioned by the board and released this month.

Tuesday's vote puts Wells in uncharted territory. While some companies occasionally face calls to replace a handful of directors at a time, it is unusual for investors to push for most members to be ousted at once.

Upending the board's leadership could create more uncertainty for Wells Fargo, just as the bank is trying to regain respect and credibility among customers, investors and regulators.

The bank has declined to say whether it has a contingency plan in place should its board members lose their re-election bid.

On Monday, Wells Fargo received a rare respite from months of regulatory pressure: The Federal Reserve and the Federal Deposit Insurance Corporation said Wells Fargo had submitted an adequate plan to wind down in the event that it faced a financial catastrophe. The regulators had rejected its previous "living will" plan.

'Stay away from Wells for now'

Also uncertain is how the bank would react to the shareholders' votes, should they want to remove some of the directors. Under Wells Fargo's corporate governance standards, director nominees must receive a simple majority of votes to win election.

If directors fall short of that mark, they must tender their resignations — but ultimately, the board decides whether to accept them.

The board can then appoint new members to fill any vacancies that arise.

The vote is not only a serious challenge for Wells, one of the nation's largest banks. It is also a test for a decades-long movement among certain shareholders who have been pushing to hold corporate leaders more accountable.

"If we're serious about board accountability in this country, it's hard to understand the case for keeping these directors," said Robert J. Jackson, a professor at Columbia Law School and the director of the school's program on corporate law and policy.

Yet for all the scandals that have rattled corporate America over the past decade — such as those in the mortgage market and the media industry — it is extremely rare for a board to take the fall.

Of the more than 37,000 corporate directors who have faced elections at companies in the Standard & Poor's 500-stock index since 2007, only 57 have failed to gain a majority of votes, according to ISS Analytics, the data arm of Institutional Shareholder Services.

A second company, Glass Lewis, recommended against the re-election of six directors, including all of those who served on the bank's risk committee.

Sometimes, company directors are targeted by aggressive investors who buy up an underperforming stock and then push for changes at the company. These so-called activist investors — often hedge funds — will put forth their own candidates for board seats in order to enact a specific agenda.

In recent years, there have been calls to replace a few board members at Target, after customer data was stolen in a digital breach, and at Viacom, over concerns about compensation.

Wells Fargo CEO: Focused on implementing changes and rebuilding trust

But those efforts took aim only at the directors who served on committees overseeing specific issues, like compensation and corporate responsibility.

Among Wells Fargo investors, the concerns about the board's leadership go much deeper.

One major shareholder advisory firm, ISS Proxy Analysis, has recommended that investors vote against 12 of the 15, including the chairman, Stephen W. Sanger, a former chairman of General Mills.

Disgruntled shareholders say they are frustrated the board did not detect warning signs that stretched back for more than a decade. The bank's directors allowed Wells Fargo's decentralized management system to flourish, even though it gave them fairly little insight into important operational areas, and they — like the bank's regulators — overlooked signals that something was badly amiss, including a growing number of whistle-blower complaints and firings of employees.

As late as 2015, when the board was given materials that labeled the bank's sales tactics high risk, directors viewed the problem as a small and manageable one. Because customers rarely lost much money to the fraudulent fees they were charged, the board considered the unethical acts to be minor misdeeds and "victimless crimes," according to the board's investigative report.

That infuriates Seth Magaziner, Rhode Island's treasurer, who oversees funds that own Wells Fargo shares. He is voting against all of the incumbent directors.

"Board members are elected by shareholders to be our watchdogs," Mr. Magaziner said. To be unaware of such widespread fraud is inexcusable, he said.

Mr. Buffett, who holds the largest stake in Wells Fargo, has not elaborated publicly on his decision to back the current board.

Calstrs, the large pension fund for California teachers, which has made it known it is voting against nine board members, owns less than 1 percent.

The annual meeting on Tuesday is being held at a resort in Ponte Vedra Beach, on Florida's northeast coast, that is dotted with lakes, waterfalls and pristine golf greens.

Wells Fargo, which is based in San Francisco, likes to hold its annual meetings in cities around the country close to its large facilities.

After the financial crisis, protesters swarmed the annual meetings of Wall Street banks en masse, demanding retribution for their role in contributing to widespread foreclosures.

In recent years, the protests have subsided somewhat as activist shareholders have focused on other issues, such as the big banks' role in facilitating climate change.

The Wells Fargo meeting promises more fireworks as groups of nuns and environmentalists — in particular, those who oppose the Dakota Access Pipeline, which Wells has helped finance — converge on the resort.

But the fate of the board will most likely be determined out of the limelight. Many of the largest shareholders are likely to cast their votes remotely and are not expected to attend the meeting.