McKinsey Settles Its Failure to Disclose Bankruptcy Positions for $15 Million

As the Barometer noted some months ago, McKinsey & Company, the management consulting firm, was under fire for its failure to disclose conflicts of interest in bankruptcy cases. The issue was McKinsey providing counsel and advice on distinction of estates and payment of creditors even as its retirement fund for its employees held positions in the debtors. Bankruptcy rules require disclosure of conflicts of interest, but McKinsey did not make the disclosures in the bankruptcies of Alpha Natural Resources, Westmoreland Coal, and SunEdison. McKinsey had maintained that it did not have conflicts because it was a different entity from its retirement fund.

The Justice Department’s United States Trustee Program, which oversees the U.S.Bankruptcy Court System, begged to differ and did so through a mediation process. The outcome is that McKinsey has agreed to pay $15 million distributed as follows: $5 million each to Alpha, Westmoreland, and SunEdison to be distributed to their creditors. Interestingly, the settlement also had to provide that McKinsey could not accept any repayments from the $15 million as creditors. In other words, the conflict prohibited McKinsey from accepting its own settlement money. There may be other cases that could result in settlements.

McKinsey admitted nothing but is grateful for the “clarification” it received during the process. And, as usual, it will “move forward and focus on serving its clients.” Translations: “Minimize, deflect, and tout goodness.” And this simple rule: You have to disclose conflicts between your role in bankruptcy reorgs and liquidations that involve, directly or indirectly, your company in any way, even your retirement plan.

There was an interesting characterization of the case by the Justice Department as “one of the highest repayments made by a bankruptcy professional for alleged noncompliance with disclosure rules.” There was also a warning from the Justice Department, “If this conduct is repeated in future cases, we will seek even more far-reaching remedies.”

About mmjdiary

Professor Marianne Jennings is an emeritus professor of legal and ethical studies from the W.P. Carey School of Business at Arizona State University, retiring in 2011 after 35 years of teaching undergraduate and graduate courses in ethics and the legal environment of business. During her tenure at ASU, she served as director of the Joan and David Lincoln Center for Applied Ethics from 1995-1999. In 2006, she was appointed faculty director for the W.P. Carey Executive MBA Program. She has done consulting work for businesses and professional groups including AICPA, Boeing, Dial Corporation, Edward Jones, Mattel, Motorola, CFA Institute, Southern California Edison, the Institute of Internal Auditors, AIMR, DuPont, AES, Blue Cross Blue Shield, Motorola, Hy-Vee Foods, IBM, Bell Helicopter, Amgen, Raytheon, and VIAD. The sixth edition of her textbook, Case Studies in Business Ethics, was published in February 2011. The ninth edition of her textbook, Business: lts Legal, Ethical and Global Environment was published in January 2011. The 23rd edition of her book, Business Law: Principles and Cases, will be published in January 2013. The tenth edition of her book, Real Estate Law, will also be published in January 2013. Her book, A Business Tale: A Story of Ethics, Choices, Success, and a Very Large Rabbit, a fable about business ethics, was chosen by Library Journal in 2004 as its business book of the year. A Business Tale was also a finalist for two other literary awards for 2004. In 2000 her book on corporate governance was published by the New York Times MBA Pocket Series. Her book on long-term success, Building a Business Through Good Times and Bad: Lessons from Fifteen Companies, Each With a Century of Dividends, was published in October 2002 and has been used by Booz, Allen, Hamilton for its work on business longevity. Her latest book, The Seven Signs of Ethical Collapse was published by St. Martin’s Press in July 2006 and has been a finalist for two book awards. Her weekly columns are syndicated around the country, and her work has appeared in the Wall Street Journal, the Chicago Tribune, the New York Times, Washington Post, and the Reader's Digest. A collection of her essays, Nobody Fixes Real Carrot Sticks Anymore, first published in 1994 is still being published. She has been a commentator on business issues on All Things Considered for National Public Radio. She has served on four boards of directors, including Arizona Public Service (1987-2000), Zealous Capital Corporation, and the Center for Children with Chronic Illness and Disability at the University of Minnesota. She was appointed to the board of advisors for the Institute of Nuclear Power Operators in 2004 and served on the board of trustees for Think Arizona, a public policy think tank. She has appeared on CNBC, CBS This Morning, the Today Show, and CBS Evening News. In 2010 she was named one of the Top 100 Thought Leaders in Business Ethics by Trust Across America. Her books have been translated into four different languages. She received the British Emerald award for authoring one of their top 50 articles in management publications, chosen from over 15,000 articles. Personal: Married since 1976 to Terry H. Jennings, Maricopa County Attorney’s Office Deputy County Attorney; five children: Sarah, Sam, and John, and the late Claire and Hannah Jennings.
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