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Electronic copy available at: http://ssrn.com/abstract=2016892 THE BANKRUPTCY OF LEHMAN BROTHERS 1 The Bankruptcy of Lehman Brothers: Causes of Failure & Recommendations Going Forward Amirsaleh Azadinamin Doctorate of Finance Candidate March 6, 2012
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Page 1: The Bankruptcy of Lehman Brothers: Causes of Failure & Recommendations Going Forward

Electronic copy available at: http://ssrn.com/abstract=2016892

THE BANKRUPTCY OF LEHMAN BROTHERS 1

The Bankruptcy of Lehman Brothers: Causes of

Failure & Recommendations Going Forward

Amirsaleh Azadinamin

Doctorate of Finance Candidate

March 6, 2012

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Electronic copy available at: http://ssrn.com/abstract=2016892

THE BANKRUPTCY OF LEHMAN BROTHERS 2

Abstract

This paper looks at the failure of Lehman Brothers as the biggest bankruptcy case in the US

history and the events that followed. The first part of the paper reviews factors that led to the

failure and consequently the bankruptcy event. Some of the causes leading to the crisis, namely

the market for Credit Default Swaps (CDOs), misrepresentation of financial statement, complex

structure of the company, low standards, and unethical behavior of top managers are reviewed

in the paper as the essential causes. In misrepresentation of financial statements there is an extra

emphasis on the misuse of the Repo 105 procedure and how Lehman used it to make its

financial statements appear healthier than what they were in actuality. Many also suggest that

the misrepresentation by the top managers also violated the Sarbanes-Oxley Act. The second

part of the paper reviews whether the failure could have been prevented before the crisis was

spiraled out of control with devastating consequences. Numerous analyses and their conclusion

suggest that there were many signs suggesting the coming of a crisis, but numerous people,

whether analyst, auditors, or even employees, failed to recognize them or deliberately turned a

blind eye to the warning signs. The most prominent sign is mentioned as the net negative cash

flows that Lehman was running three years prior to the crisis despite healthy looking balance

sheets as well as income statements. The last part of the paper offers solutions for going forward

and ways to avoid another failure of a giant financial institution. As for solutions going

forward, paper recommends companies to abandon dubious and wrongful accounting practices

in order to attain unattainable targets as well as using new methods to assess the health of the

organization.

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The Biggest Bankruptcy in the US History

The failure of Lehman Brothers in 2008 was the largest case of bankruptcy in US

history. But the failure was the beginning of a series of events that were yet to be unfolded. The

news and negative effects of the bankruptcy rippled through the market. The Dow Jones

Industrial Average declined by more than 500 points by the end of the trading session of the day

(Mamun & Johnson, 2012). Tremendous research has been done on the failure of Lehman

Brothers including the causes of failures and whether it could have been prevented. A

devastating report in March 2010 “recounted in minute detail the practices carried out by

Lehman Brothers, an institution founded in 1850 that declared bankruptcy on September 15,

2008. Notably, the executives were accused of “gross negligence” in their duty of disclosure”

(Morin & Muax, 2011, p. 38). This also sheds light on unethical practices that were either

directly exercised by top managers or were supervised under their watch. Also, many blame

accounting standards and techniques and how they are used to portray financial statements as

not what they are, but how management wants them to portray. These practices leave open

windows of opportunities for those whose intentions are to misuse their position, whether it is

for personal reasons or short-term gains of the organization. In case of the Lehman it seems that

it was more of the latter. Lehman failed to disclose various transactions in the notes to their

financial statements. This may be due to negligence of accountants and auditors that leads many

to argue for the reexamination of Generally Accepted Accounting Standards (Jeffers, 2010).

Many also blame the techniques that are currently used to predict firms’ financial distress. The

numerous bankruptcies and financial difficulties that US banks went through in 2008, including

the events that analysts failed to predict, indicated shortcomings in financial analysis techniques

(Morin & Maux, 2011). This will also be discussed throughout the paper.

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Causes of the Failure

There is no single cause that led to the failure of Lehman Brothers. There were

numerous causes and agents that led to the disaster, including greedy Wall Street traders, the

debt load of American households, the Fed’s action, rating agencies, and last but not least, the

deregulation (Morin and Maux, 2011). These factors were responsible for the crisis of credit and

not solely the failure of Lehman Brothers. Still, the market of Credit Default Swaps was one of

the biggest factors dedicating to the catastrophe, if not the biggest one as Lehman was heavily

involved in that market. In explaining the sub-prime market, Morin and Maux (2011) explain

that sub-prime loans “refer to inferior quality (sub) real estate loans whose higher risk of payment

default is countered by the bank with a higher interest rate. These mortgage loans, granted at variable

rates, were extended to American households with modest incomes” (p. 41). Morin and Maux

(2011) also discuss Lehman’s involvement in that particular market as well as how Lehman

caused erosion in that market at the same time:

The bank is accused of having sold Collateralized Debt Obligations (CDOs) to its

clients and taking short positions that effectively eroded the value of these securities. In

doing so, Goldman Sachs also helped other clients to short the mortgage bond market,

and triggered the plunge of the subprime market. Rumors of collusion between banks

soon followed (p. 41).

In a separate report and a SWAT analysis done by Datamonitor (2008), the significant

exposure of Lehman to sub-prime mortgage is explained as a threat for the organization and

criticized:

Investments in the sub-prime mortgages and mortgage backed securities are at risk of

being written off amid a crisis in the US sub-prime mortgage market. Much of that sub-

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THE BANKRUPTCY OF LEHMAN BROTHERS 5

prime debt was repackaged as collateralized debt obligations (CDO’s) and mortgage-

backed securities and was sold in the wholesale market. Many of the hedge funds and

investment vehicles invested heavily in these securities and are finding them illiquid due

to the defaults in the mortgage market (p. 7).

As one might guess by now, the crisis was triggered and snowballed by what is now

known as the “subprime crisis” starting in the summer of 2007. As it was mentioned the

subprime crisis triggered the crisis in the American financial sphere, but it was soon spread to

larger financial centers, even scattering to nonfinancial institutions. The rise in key interest rates

by American Federal Reserve along with the dissipation of demand for real property fuelled an

increase in defaults on mortgage payments, leading to insolvency. Subsequently, these failures

caused a chain reaction on the markets. The failure also spread over all securitization vehicles,

in which they are designed to allow a company or a bank holding assets with little liquidity to

group them together and sell them to a specialized entity that is created for the same purpose

(Morin and Maux, 2011).

Securitization therefore enables an organization to dispose of assets while immediately

obtaining capital in exchange, a process which represents a new means of financing for

these entities. Credit then becomes liquid; however, if it is based on a poor risk,

someone will eventually have to pay the piper (p. 41).

In return and to prevent further disaster, the US government quickly responded to the

disaster and proposed a rescue plan for the banks. In early 2010, when the crisis seemed to be

dampen and there were cautious optimisms and positive signs from the American banks,

attention was shifted toward the accountability of the executives of one of the institutions being

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THE BANKRUPTCY OF LEHMAN BROTHERS 6

at the center of the crisis. Morin and Maux (2011) explain the method that this unethical

behavior was taking place:

On March 12, 2010, a 2,200 page inquiry report prepared by legal expert Anton

R.Valukas revealed the extensive use of accounting manipulations that might have

largely contributed to the collapse of Lehman Brothers, which went bankrupt on

September 15, 2008. This report sheds light on the systematic use of a balance sheet

window-dressing technique called Repo 105, which let Lehman remove roughly $50

billion in commitments from its balance sheet in June 2008, and artificially reduce its

net debt level by wagering on the collateralized loan market (p. 42).

As it was mentioned the negative cash flows that Lehman was running prior to the

bankruptcy also cause Lehman not to be able to meet its at-the-time-current obligations.

Lehman was also unable to maintain confidence because a series of business conditions had left

it with heavy concentration of illiquid assets with declining values that mostly included

residential and commercial real estate. Morin and Maux (2011) state that legal experts believed

that Lehman executives deliberately manipulated information in statements. In addition, the

auditors, Ernst & Young, purposely closed their eyes to these balance sheet manipulations as

early as 2000s. They believed that Lehman significantly used Repo 105, and failed to disclose it

to the government, to the rating agencies, to its investors, and to its own board of directors, and

all in a while the auditors were aware of the situation. Morin and Maux (2011) state that

although Repo 105 was in line with American accounting standards, its purpose was to deceive

and they used techniques to reduce its reported leverage substantially.

The schemes Lehman allegedly carried out using REPO 105 therefore had a significant

impact on its balance sheet by undervaluing its liabilities. The income statement was

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THE BANKRUPTCY OF LEHMAN BROTHERS 7

also affected, but to a lesser extent: financing costs were undervalued given that Lehman

did not recognize these REPO transactions as loans. However, with respect to the cash

flows involved in these transactions, inflows and outflows of funds are the same

regardless of the accounting method used (p. 42).

What Is Repo 105?

Jeffers (2011) explains repo as repurchase agreement (repo) that has historically been

used by companies to manage their short term cash. But in the Lehman case, these transactions

took an unusual spin that were intended to make Lehman’s balance sheet look healthier that

what they really appeared to be. The traditional agreements normally involve an investment

banking firm giving a counterparty highly liquid securities in exchange for cash. These are

accounted for as loans with collateral. In case the investment banking firm is not capable of

paying, the lender will sell the collateral for his money to be reimbursed.

The cash received by the company is normally repaid at a later date plus a small amount

of interest (normally 2 percent) to get the securities back. Additionally these transactions

would generally be accounted for as financing arrangements. To maintain its stellar

reputation, Lehman engaged in this common arrangement but instead of utilizing the

normal practices, Lehman employed creative but deceitful accounting practices known

as Repo 105. Essentially, Repo 105 is an aggressive and deceitful accounting off-

balance sheet device which was used to temporarily remove securities and troubled

liabilities from Lehman’s balance sheet while reporting its quarterly financial results to

the public. These transactions were recorded as sales rather than as loans (Jeffers, 2011,

p. 46).

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How Lehman Used Repo 105

Even though repo 105 is a legal procedure, Lehman used it as follows, according to

Wilchins and DaSilva (2010). First, they bought government bonds from another bank using its

Lehman Brothers Special Financing Unit in the United States. Just before the end of the quarter,

the US unit transferred bonds to London affiliate, knows as Lehman Brothers International.

Then, the London affiliate gave assets to its counterparty and received cash and agreed to buy

the assets back at a later time at a higher price, at least 105 percent of the price. The money that

was received was used to cover and pay off a large amount of the liabilities. The reduction in

assets and liabilities showed healthier quarterly financial statements and corresponding ratios,

appearing much better to regulators, investors, and the general public. At the beginning of the

next quarter and with healthy-looking statements, Lehman went on to borrow more at other

lending institutions. Only then, Lehman repurchased the securities from the London affiliate at

105 percent of the original price. Having done so, the financial statements would have gone

back to the previous inferior position.

Did Lehman Violate the Sarbans-Oxely Act?

Kourabi et al., (2011) explains that the Sarbanes-Oxley Act was enacted into law in

2002 and in response to the collapse of Enron and WorldCom, following the discovery of many

accounting scandals.

The Act is designed to restore investors’ confidence, to enhance the reliability and

accuracy of the financial reporting, to improve the corporate governance system, to

improve the content and timeliness of the disclosure requirements, to strengthen the role

of the independent directors, and to improve the internal control practices and

procedures (p. 43).

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Jeffers (2011) notes that even though repo 105 is a legal procedure, but if the procedure

is used to taint the fair financial position of the company with the full knowledge of CFOs and

CEOs, the executives are subject to severe financial penalties and imprisonments. In the case of

Lehman, the executives were fully aware that the Repo 105 was being used to mislead the

statements. From all accounts, it appeared that the senior management knew of the Repo 105

transactions and nevertheless, they certified the accuracy of the statements knowing that they

were inappropriate. “As a result, these executives were fully aware that the financial statements

were misleading and did not fairly present the true position of the company” (p. 53). Hence,

those Lehman executives were subjected to criminal and financial liability. With top managers

being fully aware, an accounting scandal was in the making and the Sarbanes-Oxley Act was

violated.

Complex Structure

Steinberg and Snowdon (2009) blame the Lehman bankruptcy on the complex structure

of the organization along with numerous other issues leading to the bankruptcy. Lehman

Brothers was conducting business in global scope having about 3000 legal entities which made

the situation incredibly complicated. Any organization that experiences exponential growth on

the same scale as Lehman must have a similar degree of complexity. The complexity dedicated

to the expansion and growth, and the expansion and growth contributed to the complexity. It

works both ways as one would not be materialized with the absence of the other.

Prevention

Morin and Maux (2011) analyze the financial statements of 2005 to 2007 in order to

establish whether the failure of Lehman Brothers could have been predicted. In doing so, they

mention that most analysis are centered on balance sheet that portrays the financial structure of

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the company and the state of its solvency/liquidity. Income statements are also of great

importance. However, the statements of cash flows are mostly ignored by analysts. “The

statement of cash flows, which illustrates a company‘s capacity to transform its results into

cash, has been virtually ignored by analysts, who tend to focus instead on the balance sheet and

the income statement” (p. 40). The question in the Lehman Brothers’ case remains: beyond the

lies that were generally hidden by the top management, how could investors or auditors not

detect such warning signs? Morin and Maux (2011) examine financial statements over the three

years leading to the bankruptcy to show that such warning signs were indeed detectable. The

reason that the bankruptcy was failed to be detected was that the statement of cash flows were

not given equal weighs in comparison to other financial statements.

Although Lehman Brothers had $7.286 billion in cash and cash equivalents on

November 30, 2007, an analysis of its statement of cash flows signals major

dysfunctions in working capital management. This is particularly striking for the

financial instruments: over a three-year period, they generated net negative cash flows of

$161.657 billion (p. 40).

The shortcoming in predicating a disaster by analysis is so clear that many may believe

that analysts either did not just understand the statements or were blinded by the superficial

performance. It is also possible that holding to the minimum of standards, they simply turned a

blind eye to the warning signs. In any event, having negative cash flows must have rang a bell

about the horrible health of the organization, and it must have hinted analysts about the

superficiality of the balance sheet and income statement.

Furthermore, Morin and Maux (2011) drew a conclusion that the 2005-2007 statements

of cash flow of Lehman Brothers were reliable predictors of the coming bankruptcy. They

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mention the following signs of distress to be completely detectable in Lehman’s financial

statements.

1. “Chronic inability to generate cash from operating activities” (p. 52).

2. Massive and systematic investment in working capital items and even more intensive

investments in financial tools and instruments.

3. Systematic use of external financing to offset operating deficits, in which it mainly

included long-term debt.

4. Steady deterioration of cash flows over three years leading to the crisis.

Steinberg and Snowdon (2009), members of the Lehman tax department, maintain that they

were also aware of the trouble ahead. Early in 2008, they anticipated and started planning that

they were going record net operating losses for US tax purposes for the 2008 taxable year.

Steinberg and Snowdon (2009) note that they were focused on providing tax advice for the

disposition of assets, deleveraging of the balance sheet and in structuring potential capital

transactions while also attempting to ensure the preservation of the historic and current tax

attributes such as foreign tax credit and tax net operating loss carry forwards of the company.

There were various signs of disaster looming in the near future even though the tax team was

kept in the dark about the dire situation. Since they did not know the depth of the trouble the

question in their mind was if Lehman was to be absorbed by another financial institution, or

perhaps mass layoffs, but no thoughts on filing for bankruptcy. However, due to unethical use

of accounting standards, Lehman posted net positive results and growth between 2005 and

2007. This may be the only reason these signs of distress were not visible in the income

statement. “Analysts made recommendations and predictions based on Lehman‘s estimated earnings

per share. They therefore had their eyes riveted to the statement of income, which may explain why

Lehman‘s cash flow situation did not cause any apparent concern” (Morin and Maux, 2011, p. 52).

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However, when the analysis is made based on the statements of cash flow, the financial

deterioration of the company is completely visible. The “analysis signals major dysfunction in

working capital management. This is particularly striking for the financial instruments which

generated, over a three-year period, net negative cash flows of $161.657 billion” (p. 52). What

is surprising is that the systematic payment of dividends that went on despite sizable cash

deficits was completely unnoticed by the auditors in assessing financial statements. What is

even more shocking is the financing of the dividends that was done through long-term loans,

which by itself indicates a dysfunctional cash management.

All these finding, can bring one to a conclusive result, that the failure of Lehman could have

been predicted and prevented.

Recommendations Going Forward

One can learn many lessons from a failure, especially when the failure is the biggest of

an institution in the US history. Modifying accounting practices and adding new methods of

predicting the disaster are two are two lessons to be named. Caplan et al., (2010) examined the

failure of Lehman and have suggested a few recommendations for going forward.

Avoiding Unachievable Business Strategy

Caplan et al., (2010) mention that in 2006, Lehman made a deliberate decision in

pursuing a higher-growth business strategy. To achieve their goal they switched from a low-risk

brokerage model to capital-intensive banking model that required them to buy assets and store

them as opposed to acquiring assets to primarily moving them to a third party. Having to keep

the assets internalized the risk and returns of the investments.

The mismatch between short-term debt and long-term, illiquid investments required

Lehman to continuously roll over its debt, creating significant business risk. Lehman

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borrowed hundreds of billions of dollars on a daily basis. Since market confidence in a

company’s viability and debt-servicing ability is critical for it to access funds of this

magnitude, it was imperative for Lehman to maintain good credit ratings (p. 24).

In order to pursue this high growth trend they had no other option but to aggressively

target a high growth rate in revenues. But they also had to target an even faster growth in its

balance sheet and total capital base. This unreachable target led them to hold $700 billion in

assets in 2007 on equity of $25 billion with $675 billion in liabilities (Caplan et al., 2010). This

unfeasible strategy at the time also brought along higher risk because most of assets were long

term and highly illiquid. Commercial real estate, private equity, and leveraged loans were just to

name a few. As the subprime crisis unfolded Lehman had to act quickly, and that meant

liquidating a vast amount of its illiquid assets in housing mortgages. Negative perception of the

market caused the assets to be bought as even a lower price. Looking back at the events

unfolding and the strategy that Lehman chose, one may conclude that pursuing the company

strategy at any cost was absolutely wrong. There is a cost to any strategy and Lehman must

have forgone its high-growth strategy if its cost outweighed the benefits and was deemed as

unfeasible at the time.

Elimination of Dubious Accounting Practices by Holding High Ethical Standards

When achieving the planned strategy of high growth seemed unattainable for Lehman,

top managers decided to use dubious or perhaps corrupt accounting practices to reach the goal.

Using Repo 105 in its unordinary way was only one of the many wrongful practices used in

Lehman for showing healthier financial statements. Even though as it was mentioned the Repo

105 is a legal procedure, but Lehman used it in an unusual and unethical way to acquire new

loans by showing healthier than actual statements. Accounting standards open the way for

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unethical managers to take advantage of these standards and practice them according to their

unethical behavior. Accounting standards must be modified to impede the unethical and

wrongful practices that could jeopardize peoples’ wealth.

Caplan et al., (2010) suggest that substance must be taken into consideration over form,

in which the fairness and the health of the organization must be judged based on the substance

of the statements and not simply the ratios inferred from them.

Auditing standards state that the auditor’s judgment should be based on whether, among

other considerations, (1) the accounting principles selected and applied have general

acceptance, (2) the accounting principles are appropriate under the circumstances, and

(3) the financial statements, including the related notes, are informative about matters

that may affect their use, understanding, and interpretation (p. 27-28).

This may put an emphasis on the going concern factor in accounting measurements. The

going concern states the health of the company in the long-run and whether the company will

survive in the long run, regardless of the current financial position. Adhariani and Masyitoh

(2010) state that going concern is one of the main decision making factors in assessing financial

decisions. The research done by Adhariani and Masyitoh (2010) shows that certain ratios and

numbers such as liquidity, profitability, and cash flow that are concluded from financial

statements are not significant to influence the issuance of audit opinion. They determine

solvability as the most significant factor.

Going concern is an extremely interesting issue to discuss. Investors, creditors and also

government are extremely interested in identifying the financial position of the

company, and one of factors brought to their consideration is the auditor’s opinion.

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Opinion relevant to going concern is a red alert that financial failure in the company

comes to exist (p. 27).

Even though financial ratios are very useful in predicting the failure and success rates of

any company to maintain its going concern in the future, they are not sole indicators of the

health of the company.

As for the corporate culture that was completely stepped over in Lehman, Caplan et al.,

(2010) mention that the need for “an ethical culture is perhaps greatest when an unplanned event

occurs” (p. 29). Having to hold higher standards, individuals will hold a course of action

representing the policy of the organization.

Although the specific financial instruments that Lehman used to manage its financial

statements apply primarily to the financial services industry, the events at Lehman

provide lessons about corporate governance that apply to all organizations. First, all

parties with meaningful roles in the financial reporting process shouldn’t apply

accounting rules with the intent to obfuscate the economic substance of transactions. As

a corollary to this rule, if the transaction has no economic substance but serves only to

window-dress the financial statements, its proper disclosure will eliminate any incentive

to engage in the transaction (p. 29).

In the case of Lehman Brothers, one can see that some of the auditors, accountants, and

top managers failed to practice high ethical standards, even though they might have practiced

the minimum required to be shielded from legal actions.

Alternative Theoretical and practical financial distress prediction models

Morin and Maux (2011) dispute the methods that are currently being used by analysts

for predicting financial distress. Instead, they state that the Altman financial distress prediction

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model can provide a clearer and more complete picture, and they provide quantitative evidence

to prove it. They conclude that Lehman’s coefficient was well below 1.81, which is Altman

model’s threshold of financial distress. It is worth noting that Lehman’s average coefficient over

three years leading to the failure was 0.0897 which supports the observation. Altman formula

demonstrates that the ratios of internally generated funds to total debt and the return on equity

(ROE) are better predictors of financial distress than the liquidity ratios. “The main advantage

of discriminant analysis is that it can deal with several variables that define the complete profile

of a firm rather than simply analyzing one factor” (p. 44). In inferring to his conclusion, Altman

grouped 22 independent variables into 5 groups: liquidity, profitability, lever effect, solvency,

and activity ratios, and in studies done by Altman himself, it has been a great indicator of

financial distress. “Altman looked at the relevance of the ratios and their correlation. The

integration of these five variables in a single equation yielded the greatest success rate for

predicting financial distress” (p. 44).

Concluding Remarks

The failure of Lehman Brothers was contributed to numerous factors that went in

parallel to contribute to the biggest bankruptcy in the US history. They went hand in hands

because no single factor could have brought this disaster by itself. Dubious and doubtful

accounting practices could not be possibly practiced in the long run if not for low ethical

standards held by top managers as well as the auditors. It seems as if auditors mainly tried to

shield themselves from legal action just by executing the minimum requirements expected from

them. The Repo 105 procedure is nothing but an ordinary and legal practice for short-term

financing that was taken out of its context by unethical accounting practices in order to please

investors and lenders. The complex structure of Lehman also provided a window of opportunity

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for the same unethical managers to abuse the trust that was placed in them, the organization, and

management by investors and shareholders. It can also be concluded that the Sarbanes-Oxley

Act was violated because top managers deliberately tainted the financial statements to falsely

show the health of the company to be better than what it really was at the time. Once these

managers were incapable of reaching their growth and expansion rate they had to inflate their

financial statements to keep the appearance of a company with high rate of growth.

For Lehman, the mistake lay in putting too much faith in an outmoded culture and

failing to see how its very strength undermined the business. For companies that

confidently set out to change their cultures, the Lehman experience offers a lesson about

the nature of corporate culture itself—it can be much stronger, more deeply embedded,

and far less malleable (Greenfield, 2010, p. 36).

The main signal of deficiency in the organization came from the net negative statements

of cash flows, nevertheless, auditors failed to recognize the lack of correlation between the

statements of cash flow with balance sheet and income statements. Auditors failed to recognize

that the net negative statements of cash flows reflected the financial standing of the company.

This highlights yet another conclusion that is drawn from the paper. The current analytical and

rating methods have sufficient shortcomings and the case of Lehman is prominent evidence.

Studies show that the Altman’s z-score test may be complementary in predicting the crisis in the

making.

At the end, Lehman’s failure had an impact beyond expectations. The consequences did

not just leave its negative print on the economy but also on the society with the lost confidence

in institutions and corporate culture. As Greenfield (2010) mentions, “one must wonder when

businesses and their executives will realize that their activities can significantly impact the very

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fabric of human society” (p. 54). In any event, holding higher standards and ethical culture by

auditors, managers, and rating agencies are essential in avoiding this sort of disaster.

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