Undergruaduate

Content Introduction2 Part 1: Overview2 1. 1 Timeline of AIG Accounting Scandal4 1. 2 Relationship Chart of AIG and Its Counterparties5 Part 2: Accounting Issues6 2. 1 Background on Reinsurance and Relevant GAAP Rules6 2. 2 Manipulation Technique 17 2. 3 Manipulation Technique 27 2. 4 Retrospections8 Part 3: Auditing Issues9 3. 1 Reasons for Auditing Failure9 3. 2 Retrospections11 Part 4: Corporate Governance 12 4. 1 Tone at the Top12 4. 2 Dysfunction of the Board14 4. 3 Low Engagement of Shareholders15 4. 4 Reactions and Its Effectiveness? 5 4. 5 Possible Therapy16 Part 5: Recommendations to Preventing Scandals and Conclusion 17 Introduction This project focused on the scandal of AIG between 28 Oct 1999 and 30 Mar 2005. It will firstly provide an overview of the scandal and then shed light upon areas of AIG’s accounting, auditing and corporate governance with reference to relevant theories and concepts. The second part begins with accounting aspect which illustrates the motivations behind the insurance industry and the application of finite reinsurance.

Regarding the auditing issues, the essay seeks to examine if external auditor PwC bewared, recognized and modified the real “problem” in AIG. Later the symptoms of the corporate governance will be analyzed by looking at agency-principal problem, organization culture, dysfunctional board and unprotected shareholders’ rights which had collectively led to the corporate failure. Finally, some general implications will be revealed. Part 1: Overview American International Group, Inc. (AIG) was widely considered as a world’s leading international insurance and financial service organization (AIG official website, 2009).

Under Hank Greenberg’s leadership, AIG was regarded as one of the nation’s most profitable companies by the Business Insurance, and was ranked the third among the top ten companies on the Forbes Global 2000 List (Maury et al, 2007). Behind its huge success, however, AIG was engaged in series of improper reinsurance transactions. On 28 March 2005, the investigation by Securities and Exchange Commission (SEC) into the transaction between AIG and General Reinsurance Crop (General Re) reveals the illegal use of a sham risk-free swap, which allowed AIG to artificially add $500 million in premium revenues as its reserves in 2000 (Petro, 2005).

As the investigation was extended, the involvement of AIG’s top executives in using two interest-conflicting offshore companies controlled by Greenberg, Starr International Co. (SICO) and C. V. Starr & Co. (Starr), to compensate themselves was revealed. Another two off-shore reinsurance companies, Richmond Insurance Company Ltd and Union Excess Reinsurance Company Ltd which based in Barbados where the laws were inadequate to restrict the establishment of reserves have conducted the similar transactions with AIG as General Re did.

Furthermore, the investigation revealed that AIG and Brightpoint Inc. both agreed on a non-traditional reinsurance which enabled Brightpoint to hide the loss of around $12 million during 1998 and 1999 (Petro, 2005). The investigation into AIG’s fraudulent transactions has mushroomed into a growing scandal that tarnished its reputation. As a result, Greenberg stepped down as the CEO and the company was fined $1. 67 billion (Eichenwald & Anderson, 2005). Furthermore, share price of AIG dropped 22% and S&P downgraded AIG’s debt rating from AAA to AA+ (Brady et al. 2005). 1. 1 Timeline of AIG Scandal(??? ) Board of SICO [pic][pic][pic][pic][pic][pic][pic][pic] [pic][pic][pic][pic][pic][pic][pic] Board of AIG [pic][pic][pic][pic][pic][pic][pic][pic][pic][pic] [pic][pic][pic][pic][pic][pic][pic][pic][pic][pic] Board of C. V. Starr [pic][pic][pic][pic][pic][pic][pic][pic] [pic][pic][pic][pic][pic][pic][pic] Part 2: Accounting Issues AIG had two motives to manipulate the financial reports. Firstly, AIG aimed to resolve the public concern for the reserve inadequacy. In U. S. reserve can be an indicator of the credibility of insurance underwriters, and insurance companies are required to establish reserves for anticipated risks.. In the fourth quarter of 2000, the actual reserve for AIG is -$144 million, which could negatively affect the credibility of the company (Petro, 2005). Secondly, AIG wanted to achieve cheaper acquisition of American General, a life insurance company. Accounting manipulation was applied to keep AIG’s share price high so that AIG could acquire American General with as few AIG shares as possible (ibid). 2. 1 Background on Reinsurance and Relevant GAAP Rules

Reinsurance is purchased by an insurer with a premium from another insurance company (reinsurer) in order to transfer the risk of loss (shall it happen) covered by the counterparty’s policies. Non-traditional or finite insurance is a typical form of reinsurance to mitigate losses efficiently. When applied appropriately, finite reinsurance permits insurers to distribute their risk of loss over time and the reinsurers assume the risk in exchange for premiums (Petro, 2005). A valid reinsurance agreement must include a transfer of significant risk from the insurer to the reinsurer, required by GAAP.

According to GAAP, a reinsurance recovery for a particular loss is recorded as a receivable on the insurer’s balance sheet with the proper recovery. The difference between the recovery and the loss is recognized in the income statements; hence decline the insurers’ loss (Petro, 2005). However, all the terms above are ineffective unless the recovery is an insurance recovery. When no sufficient risk is transferred, transactions will rather be regarded as loans which reduce the assets while raise liabilities on the balance sheet (Petro, 2005). . 2 Manipulation Technique 1: Application of Income Smoothing Products to Inflate AIG’s Reserves One method AIG used to manipulate accounts was to transact with offshore reinsurance companies. In 2000, AIG entered into a finite reinsurance contract with Cologne Re, a foreign subsidiary of General Re. In essence, this contract is part of a sham risk-free swap of insurance assets, which allowed AIG to artificially inflate its premium growth and temporarily boost claims reserves (Maury, McCarthy , 2007).

With this contract, AIG booked $500 million premium income for the loss portfolio transfer and then added $500 million in reserves against future claims to its balance sheet (Hulbert, 2005). Nevertheless, when the transactions came with no de facto risk transfer, GAAP would require the primary insurer to report the premium paid, less the premium retained by the reinsurer, as a deposit (Hulbert, 2005) by the same token, . Another two off-shore reinsurance companies Richmond in Bermuda and Union Excess in Barbados together reinsured $1. billion of AIG’s expected future claims, “as at the end of 2003 (Petro, 2005). 2. 3 Manipulation Technique 2: Application of Non-traditional Insurance Products to Raise AIG’s Earnings National Union, a subsidiary of AIG, developed and marketed a non-traditional insurance product to assist the buyer of this product to distribute the quantified one-time losses into several future recording periods rather than report the losses entirely at once. It was also an income statement smoothing trick (Petro, 2005).

Such non-traditional products could generate lots of revenues for AIG. In 1998 and 1999, AIG and Brightpoint entered and completed a non-traditional reinsurance contract, which constructed a round-trip of cash from Brightpoint to AIG and back to Brightpoint, and enabled Brightpoint to conceal approximately $12 million of losses (Byon, Urban & Nguyen, n. d. ). This contract involved two procedures: first to conduct the reinsurance contract and then to camouflage this fraud. AIG was paid extra $100,000 by Brightpoint as transaction fees. 2. Retrospections Due to AIG/General Re scandal, reinsurance accounting became headlines of many financial publications and the industry began to re-evaluate accounting practice of such contracts. Previously, reinsurance contracts were helpful to decorate companies’ financial statements because they were recorded as insurance contracts rather than investment contracts. Companies like AIG have been tempted to report reinsurance contracts, even when no underwriting risk transfer present. Hence, no risk transferred but the insurer’s income improved.

In response to the AIG scandal, the National Association of Insurance Commissioners (NAIC) has proposed the approach of bifurcation which requires insurers, who enter into reinsurance contracts, to include provisions account for the financing element separately from the transferred insurance risks (Hulbert, 2005). Based on revised SSAP, Reinsurance need incorporate the proposed bifurcation requirement. Underwriting risk transfers would be reported in accordance with reinsurance accounting while financing elements would be reported according to deposit accounting, under newly drafted SSAP.

In addition to the bifurcation proposal, the NAIC has proposed new disclosure requirements for insurers engaged in any agreement that has the effect of altering policyholder’s surplus by more than 3 percent, or representing more than 3 percent of premium or losses (Hulbert, 2005). Insurers are required to disclose a summary of the contract’s terms, the principal objectives and economic purpose of the contract, and also the effect of the contract on the balance sheet and income statement.

Finally, the NAIC requires all insurance companies’ CEOs and CFOs to sign a statement to affirm the proper accounting, documentation, and controls for the reinsurance contracts reflected in the financial statements, with all exceptions explained. Part 3: Auditing Issues The external auditing serves as a means to address agency problems by discouraging creative accounting practices. However, PricewaterhouseCoopers (PwC) is criticized for being incompetent to meet auditing standards and “recklessly or intentionally” certified AIG’s inaccurate financial statements since 1999 (Marianne, 2009; Johnson and Starkman, 2004).

According to Cullinan’s (2004) model of audit process breakdown, the audit process can fail at three stages: [pic] This model can be used to detect AIG’s external auditing process breakdown. In this case, PwC should have been aware of the problematic transactions due to its continual and unfettered access to AIG’s confidential financial information through conversation with AIG management and through review of its nonpublic documents (Weber, 2005). The failure starts from the second step, in which PwC recognized the fraudulent transactions but did not treat it as “problem”.

Consequently, there is no further appropriate action to deal with the problem. 3. 1 Reasons for Auditing Failure There are three reasons accounting for the failure in the auditing process. Firstly, independence requires auditors to develop their own programs and access all relevant information to ensure objectivity, unbiasedness and no conflict of interests (Gray and Manson, 2008). However, the independence of PwC as an external auditor was compromised as it maintained a profitable relationship with AIG. As noted, PwC received some $136. million by providing both audit and consulting services between 2000 and 2003 alone, which impaired the scrutiny and objectivity expected from auditors (Johnson and Starkman, 2004). Furthermore, compensations for PwC partners is related to the revenues generated from client for whom they are responsible, thus PwC partners on the AIG engagement had a direct financial incentive to retention AIG as its lucrative client (Maury et al. , 2007). Besides, PwC’s maintained a “close” tie with AIG’s top management.

Five of AIG’s executives including its CFO were former employers of PwC. As PwC and its predecessor company Coopers & Lybrand had worked for AIG for more than 20 years, AIG’s executives knew the audit procedures well and possibly some members of the audit team (Maury et al. , 2007). The ties between two parties apparently undermined the independence in auditing (Petro, 2005). As required under SOX section 204, PwC should contain assessment of the effectiveness of AIG’s internal control system when conducting audit plan (Bergen, 2005).

However, risky factors including centralized authority and lack of participation by BOD are not reflected as “red flags” in PwC’s audit plan. It is said that PwC was informed of the weak corporate governance at AIG but failed to identify or deliberately ignored two specific audit risks. First, Greenberg was an autocrat as chief executive and chairman for 38 years, even controlling the compensation of senior managers through AIG’s affiliated offshore entities (Johnson and Starkman, 2004).

Second, AIG’s management violated accounting principles in GAAP for its off-balance sheet transactions with BrightPoint (Taub, 2005). Then, it is recognized that PwC’s audit failure was caused by judgment errors and poor execution of audit rather than inappropriate use of techniques. Under reinsurance industry rules, auditors are required to verify significant risk transfer in reinsurance deals, which however was subjected to auditor’s judgment. This justifies PwC’s approval of suspicious transactions.

Also, the tremendous success of AIG made PwC’s auditor more reckless in judgment (Petro, 2005). Besides, AIG’s audit committee alleged that PwC had disregarded improper accounting maneuver and overlooked key warnings from audit committee (Johnson and Starkman, 2004). Audit committee incorporated a disclaimer in its 2002 annual corporate filing stating that they cannot vouch for AIG’s financial reporting and could not assure PwC was in fact independent (Johnson and Starkman, 2004).

Nevertheless, PwC argued that the sort of proxy language in audit committee’s warning was not uncommon during the time when regulators were attempting to beef up audit committee oversight after the passage of Sarbanes-Oxley Act, which aims at assigning responsibility to executives. Furthermore, many companies reporting “boilerplate” disclaimers intend to insulate themselves legally from corporate scandals, thus external auditors would not necessarily be alarmed (Weber, 2005). 3. 2 Retrospections The fact that approval of AIG’s suspicious transactions by PwC was exempted from any legal liabilities has raised a wide public concern.

Some researchers suggest that external auditor should be assumed certain liability to shareholders since the audit report includes information about corporate economy and effectiveness, upon which shareholders rely on for investment decisions (Petro, 2005). Then, auditing independence is another controversial issue. Although Sarbanes-Oxley mandates that public accounting firms to rotate audit partners every five years, some researchers also suggest accounting firms should be rotated regularly to maintain independence (Nelson and Macdonald, 1999).

Nevertheless, Romano (2005) concerns that over independence could be as risky as overdependence since insufficient knowledge of inherent risks of certain business may deteriorate the auditing quality as well (Wyman, 2004). With respect to audit committee, it serves as representative of shareholder interests to help enhance reliability of financial reporting. However, AIG’s internal audit suffers from several inherent flaws such as few financial experts and lack of participation in audit committee meetings (Maury et al. , 2007).

In upgrading audit committee’s quality, more specialized financial and accounting experts should be included. Furthermore, audit committee should increase their participation and have an in-depth knowledge audit plan, and it should maintain regular and effective communication with external auditors and be more attentive to various aspects of external audit process (The audit committee leadership summit, 2007). Part 4: Corporate Governance The literature of accounting scandals reveals that fraud is hard to flourish without the overall weakness in corporate governance (e. g. , Dechow et al. 1996; Beasley, 1996; Farber, 2005). Though there is no consensus upon the formal definition of corporate governance, it may be referred to as a set of methods and systems via which a corporation is directed and controlled principally by company’s board of directors (Cadbury Report, 1992), and its role is about resolving the principal-agent problem which emerges when the decisions made by managers are not in the best interest of shareholders (e. g. , Arnold and Lange, 2004). In this section, three key symptoms of AIG’s weak corporate governance that had precipitated the scandal are identified. . 1 Tone at the Top As a human being is guided by his values and beliefs through his life, the way a firm does its business is also hugely affected by its organizational culture, which is the collection of values shared by people within the organization and norms that control the way of interaction with outside stakeholders (Hill and Jones, 2001). Therefore, in order to maintain good corporate governance, one of the fundamental responsibilities of company’s top executives is to create healthy organizational culture.

AIG’s organizational culture was accused to be ruthless, greed and lack of ethical standards. This was largely influenced by the then dominant CEO, Hank Greenberg, whose power was gradually accumulated as he expanded his ownership of company shares and served long enough to maintain important connections (Byrne, 2002). Greenberg’s attitude towards those transactions from reinsurance accounting such as those with General Re is that if there was no “bright line” excluding the practice, then they should be allowed.

He would seek the loopholes of the then rule-based GAAP and took full advantage of them (Maury et al. , 2007). The whole company was dominated by this routine and some staffs even left AIG due to Greenberg’s “exceptional ability of exploiting the complexities of business”, which they regarded as illegal (Leonard, 2005). Another facet about AIG’s culture was that the strong desire of management to meet financial analysts’ expectations as to what level of earnings or stock price AIG should achieve.

This led AIG to manipulate already profitable financial statements to an even better position, though no specific personal economic gains were discovered. This was quite different from previous scandals which involved executives who had large stock options committed earnings management and benefited from boosted share price (Giroux, 2008). However, it is also suggested that manipulations may due to Greenberg’s self-interest seeking goal of maintaining personal prestige as an insurance legend on the Wall Street.

If this was the truth, then the welfare of the shareholders was eroded. Although AIG was successful in terms of financial performance, it overlooked its risk management which would bring potential losses to its employees and shareholders. According to stakeholder theory, company should pay attention to all their constituencies such as employees, shareholders and communities to gain long-term value maximization (Jensen, 2001). Apparently, AIG’s unethical culture neglects the interest of its stakeholders.

Shareholders suffered from dropped share price and the public lost their faith to overall economic condition. 4. 2 Dysfunction of the Board One factor that contributed to the dysfunction of the board was its composition. It is argued that AIG fails to hold meaningful discussion with a large board size of 20 members, out of which 9 seats were taken by AIG executives (Byrne, 2002). In addition, there was no separate nominating committee to ensure the independence of outside directors (ibid).

In fact, almost all the outside directors were selected by Greenberg (Maury et al. , 2007). One thing to note about AIG’s board composition is that 5 of the top executives were former employees at PwC, AIG’s auditor (Tuckey, 2005). Though it didn’t cause too much trouble for AIG under the Sarbanes-Oxley Act of 2002 which prohibited hiring executives from audit firms since these events were pre-dated, it still triggers wide curiosity of the real impacts such connections might have had on the auditor’s independence (Maury et al. , 2007).

Independence and all sorts of committees established as part of the monitoring mechanism are crucial for guiding company’s management and safeguarding shareholders’ interests. However, these were undermined by the board at AIG. To make things worse, the executives on AIG’s board were also alleged to have self-dealing and conflicts of interests with the company, which had potentially increased agency costs. Two private companies controlled and ran by 7 directors, including the then Chairman and CEO Greenberg, had substantial business dealings with AIG (Byrne, 2002; Maury et al. 2007). One of these companies, SICO, a Bermuda company, served as a veritable bank vault, paying current and future AIG executives cash and stock in excess of what they receive directly from AIG (ibid). The reason SICO can manage the transactions was that it was established as a holding company who owned 12% shares of AIG, making it the company’s largest shareholder (Brady et al. , 2005). Greenberg and his fellows at AIG’s board also served as board members at SICO and other private entities. Furthermore, Greenberg possessed the dominant power with his 8. % voting stock at SICO and effective 17. 4% of personal shareholding of AIG (ibid). Therefore, as a matter of fact, the “independent” SICO was actually controlled by Greenberg and handful executives and was used as a compensation vehicle effectively skipped the supervision of the board’s compensation committee at AIG to pay themselves almost whatever they want. 4. 3 Low Engagement of Shareholders With Greenberg and his fellows dominating the company, most decisions were made without disclosure to shareholders and shareholders had limited voting rights (Byrne, 2002).

For instance, when the propriety of using Starr International as a compensation vehicle was raised, the board even declined the suggestion to put it to a shareholder vote (Francis& McDonald, 2005a). According to agency theory, information asymmetry is not an uncommon problem between management and its principal, leading to manipulations that maximize the management’s interest instead of its principal’s (Godfrey et al. , 2003). However, because of the huge success of the company under Greenberg’s domination, shareholders were satisfied with the return and did not question this weakening balanced governance.

As a result, the board also relaxed its scrutiny, which in turn indirectly encouraged Greenberg’s fraudulent behavior of making AIG appear more successful in order to maintain his dominance (Maury et al. , 2007). 4. 4 Reactions and Its Effectiveness When regulatory investigations launched by SEC and New York State Attorney started against AIG, CEO Greenberg was replaced by Martin Sullivan, and CFO and another executive were forced for garden leave (Westbrook, 2005). Moreover, six competent members joined the Board of Directors and the Board was claimed to be in the interest of shareholders and company then (AIG, 2006).

By changing management and implementing reforms, the company was regarded to be on a path towards revival (NY Attorney General, 2006). However, the statement was also queried by the critics that Greenberg’s resignation may not be effective to change AIG’s dominating culture, and shareholders still got limited rights (Westbrook, 2005). In company’s 2009 emergency bailout, shareholders suffered significant loss and complained that they had never been able to vote on the terms of the bailout (Walsh, 2009).

Except for board of director and management changes, AIG also accepted the monitoring of financial reporting and corporate governance practices by the Insurance Department and the SEC (NY Attorney General, 2006). However, the settlement seemed to be poorly enforced. In 2004, James Cole was assigned by Deputy Attorney General Nominee as an independent monitor for AIG. However, as his role expanded, he lost his attribute of independence and regularly attended AIG board of directors committee meetings since 2006 and even participated in the process of transitioning practice.

It is argued that some of the transactions Cole examined had been prearranged by AIG’s financial products group, which became one reason for the later collapse and federal bailout assistance (Reilly, 2010). 4. 5 Possible Therapy Although AIG has made some reforms in corporate governance, loopholes still existed and caused further failure. In general, there are three important aspects that AIG should be focused to improve. Firstly, a thorough reform of corporate governance framework is suggested to create a healthy organizational culture.

For instance, a cultural audit could be formed to assess the attitude towards internal controls and ethical decision-making. The board of AIG could hire an outside firm through the audit committee to perform a cultural audit every two or three years to maintain an ethical culture. Secondly, considering the agency costs of the firm, it is suggested that different functioning parties within an organization must be ensured to be independent and avoid conflicts of interests. Finally, increasing shareholder engagement is a vital aspect to be improved in AIG’s case.

Corporate governance is about protecting various stakeholders in a firm, and the dominant stakeholder is usually the shareholder. Hence, shareholder engagement is essential for the development of the firm. However, concern should be held that cooperation between major shareholders may raise legal issues. Therefore, it is important to balance the power of different parties. Part 5: Recommendations to Preventing Scandals and Conclusion Firstly, moving towards principle-based system might be helpful in reducing frauds. US GAAP is widely regarded as more rule-based, which requires strict adherence to a set of written requirements.

As PwC claimed in The Wall Street Journal that the rule-based system actually encourages creativity in financial reporting and allows managers to ignore the substance since some frauds might be qualified or permissible under the law but not ethically or morally acceptable (Reilly 2007). According to a study conducted by Alexis (2007), a higher incidence of corporate accounting frauds occur in rule-based United States as compared to the more principle-based countries. The second is for the regulators (SEC) to strengthen the enforcement and implementation of the regulations.

As is reflected in this case, although there are relevant laws and standards regulating the accounting and auditing practices, they still leaves space for frauds due to lack of effective enforcement. If there were practical and detailed requirements for the proof and disclosure of significant risk transfer in the financial reports in the first place, there would have been less space for fraud. Also, if there is a third agency to ensure independence required by SOX, PwC could have behaved in a more cautious way and disclosed the fraud information discovered by reviewing AIG’s annual reports.

In addition, analysts and investors can play a more active role in the market to ensure the transparency of the capital market. The credit rating agencies can add pressure as to how the company should behave through amending ratings or investment recommendations. For investors, they should be motivated to exercise their rights to force change or litigate. Last but not the least, to improve the overall ethics level can be treated as the basic and fundamental in preventing frauds. Ethics education should receive more concerns and attention not only at the corporate level but also the society level.

The popularity of the concept of stakeholder theory indicates that ethics and economics can no longer be neatly and sharply separated (Freeman et al 2004). As is identified by Cavico and Mujtaba (2009), executives, managers and employees should receive ethics education regularly in four main areas: 1. Prevailing laws, regulations, and practices that govern their conduct; 2. Legal and ethical rights, obligations, expectations, and responsibilities; 3. Standards of objectivity, fairness, integrity, and maturity; 4. Responsiveness and accountability to the truth.

In summary, AIG scandal (2005), as one of the numerous accounting scandals, certainly reveals that preventing scandals require various forces. Despite the improved legislation and increased public awareness of corporate frauds, it is still far from the end of the accounting scandals. In order to enhance the accountability of the corporations and prevent the disastrous accounting scandals, board of directors, shareholders, auditors, employees, regulators and other stakeholders should work in collaboration to create a more ethical business environment. ———————- 02/09/04|12/30/04|01/06/05|02/14/05|03/14/05|03/27/05|03/29/05|03/30/05|05/01/05|05/26/05|05/31/05|06/08/05|06/10/05 NYAG and SEC subpoenaed AIG. SEC subpoenaed AIG executives. SEC launched General Re Probe. Greenberg resigned from AIG????????????????? board entirely. AIG admitted its improper accounting for General Re and detailed numerous other problematic accounting. AIG CEO, Greenberg stepped down. NY State Insurance Department announced new finite reinsurance reporting rules. AIG was requested to restate its annual financial statements.

AIG restated its financial statements from 2000 to the Q3 2004. General Re executives pled guilty to conspiracy charges. NYAG pointed out that AIG as a profitable company, there was no need to cheat. NYAG and SEC began a probe into AIG’s finite reinsurance. NYAG subpoenaed General Re. 1. 2 Relationship Chart of AIG and Its Counterparties??? General Reinsurance PricewaterhouseCoopers • Entered a sham risk-free swap contract • Mistakenly boosted premium income by $5 million • External Auditor • Controlled by AIG executives • Held 11. percent of AIG’s common stock • With Greenberg being the CEO • Provide long term compensation to AIG executives Brightpoint • Controlled by AIG executives • Held 2 percent of AIG’s common stock • With Greenberg being the CEO • Provide long term compensation to AIG executives • Conceal $12 million loss through non-traditional transaction with AIG Cullinan’s Model of Audit Process Breakdown Fail to become aware of “problem” transactions Recognize transaction but do not treat it as a “problem” Realize the “problem but fail to act appropriately