Financial Statement Restatements: Trends, Market Impacts, Regulatory Responses, and Remaining Challenges
Published: 2002-10-04T00:00:00

Fast Facts:

Highlights:
section_title: What GAO Found
paragraphs: A number of well-publicized announcements about financial statement restatements by large, well-known public companies have erased billions of dollars of previously reported earnings and raised questions about the credibility of accounting practices and the quality of corporate financial disclosure and oversight in the United States. Industry officials and academics have speculated that several factors may have caused U.S. companies to use questionable accounting practices. Some officials have stated that increased focus and guidance by the Securities and Exchange Commission (SEC) on accounting issues in the late 1990s may have prompted more companies to restate previously reported financial statements. Although the number of restating companies continues to make up a small percentage of all publicly listed companies annually, the number of restatements due to accounting irregularities grew significantly--145 percent--from January 1997 through June 2002. The 845 restating companies GAO identified had restated their financial statements for many reasons--for example, to adjust revenue, costs or expenses, or to address securities-related issues. From January 1997 to June 2002, issues involving revenue recognition accounted for almost 38 percent of the 919 announced restatements. Finally, different parties can prompt a restatement, including the restating company, an external auditor, or SEC. The 689 publicly traded companies GAO identified that announced restatements between January 1997 and March 2002 lost billions of dollars in market capitalization in the days around the initial restatement announcement. However, these losses had potential ripple effects on overall investor confidence and market trends. The growing number of restatements and mounting questions about certain corporate accounting practices appear to have shaken investors' confidence in the nation's financial reporting system. Although determining the effect of the restatements and other accounting issues on overall investor confidence is difficult to measure, various attempts to measure investor confidence have been made. With the increase in the number of restatements due to accounting irregularities, 20 percent of SEC's enforcement cases since the late 1990s were for violations resulting from financial reporting and accounting practices. To address these, SEC has sought a variety of penalties, including levying monetary sanctions, issuing cease-and-desist orders, and barring individuals from appearing before SEC or serving as officers or directors in public companies. The recent increase in the number and size of restatements and disclosures of accounting issues and irregularities underlying them have raised significant questions about the adequacy of the current system of corporate governance and financial disclosure oversight. In addition to public companies, their auditors, and SEC, investors rely on a variety of parties for oversight and financial information, including stock markets, securities analysts, and credit rating agencies, all of which have roles in the corporate governance system or provide information to the investing public. However, recent events have raised concerns about the roles played by each of these parties. On July 30, 2002, the Sarbanes-Oxley Act was enacted. The act addresses many of these concerns, including strengthening corporate governance and improving transparency and accountability to help ensure the accuracy and integrity of the financial reporting system. The act authorizes additional funding for SEC, which has faced staffing and workload imbalances that have challenged its ability to fulfill its mission.

section_title: Letter
paragraphs: A number of well-publicized announcements about financial statement  restatements by large, well-known public companies such as Xerox,  Enron, and WorldCom have erased billions of dollars of previously  reported earnings and raised questions about the credibility of accounting  practices and the quality of corporate financial disclosure and oversight in  the United States. Industry officials and academics have speculated that  several factors may have caused U.S. companies to use questionable  accounting practices, including (1) corporate pressure to meet quarterly  earnings projections and thus maintain stock prices during and after the  market expansion of the 1990s, (2) perverse executive compensation  incentives, (3) outdated accounting and rule-based standards, and (4)  complex corporate financing arrangements. Industry officials also have  testified that public accounting firms’ independence has been  compromised and that they may have faced some pressure to agree with, or  ignore, questionable accounting practices in order to keep some clients’  business. Some of these officials added that increased focus and guidance  by the Securities and Exchange Commission (SEC or Commission) on  accounting issues in the late 1990s may have prompted more companies to  restate previously reported financial statements.
You asked us to (1) determine the number of, reasons for, and other trends  in financial statement restatements since 1997; (2) analyze the impact of  restatement announcements on the restating companies’ stock market  capitalization; (3) research available data to determine the impact of  financial statement restatements on investors’ confidence in the existing  U.S. system of financial reporting and capital markets; (4) analyze SEC  enforcement actions involving accounting and auditing irregularities; and  (5) describe the major limitations of the existing oversight structure and  steps that have been and are being taken to ensure the integrity of  corporate financial disclosures and ongoing challenges.
To identify financial statement restatements, we used Lexis-Nexis, an  online periodical database, to search for restatement announcements using  variations of the word “restate.” We then identified and collected  information on 919 financial statement restatements announced by 845  public companies from January 1, 1997, to June 30, 2002, that involved  accounting irregularities resulting in material misstatements of financial  results. We included only announced restatements that were being made to  correct previous material misstatements of financial results. Therefore, our  database excludes announcements involving stock splits, changes in  accounting principles, and other financial statement restatements that  were not made to correct mistakes in the application of accounting  standards. While several other studies have used similar methodology,  there is no known authoritative restatement list against which to compare  the completeness of our list. However, we cross-checked portions of our  list with lists compiled by SEC, the Congressional Research Service, and  others when this information was available. We also reviewed SEC filings  to verify the accuracy of particular restatement announcement dates.
To determine the immediate impact on stock prices, we analyzed 689 of the  919 restatements that were announced from January 1, 1997, to March 26,  2002, to determine why restatements occurred and collected information  on other characteristics of the restatement trends. We excluded 230 cases  because (1) they involved stocks not listed on the New York Stock  Exchange (NYSE), the National Association of Securities Dealers  Automated Quotation (Nasdaq), or the American Stock Exchange (Amex);  (2) they involved announcements made after March 26, 2002; or (3) they  were missing data for the relevant time period due to trading suspensions,  bankruptcies, and mergers, among other things. For each of these 689  cases, we analyzed the company’s stock price on the trading day before, the  trading day of, and the trading day after the announcement date in order to  assess the immediate impact and calculate the change in market  capitalization. We also analyzed the intermediate impact (60 trading days  before and after the restatement announcement date) for 575 restatements.  This calculation required 3 months of trading data before and after the  announcement date; therefore, we excluded an additional 114 restatements  because the announcement was made after December 31, 2001, the  restating companies filed for bankruptcy, or data were missing for the  relevant time period. In both the immediate and intermediate calculations,  we attempted to adjust for overall market movements, such as the general  decline in the stock market since 2000. We also did additional analyses on  the cases that were excluded from the immediate and intermediate impact  analyses due to missing data to determine the immediate and intermediate  impact on market capitalization. We also reviewed survey and other  empirical data and obtained the views of industry experts on investor  confidence and participation in U.S. capital markets.
To obtain information about the recent enforcement actions SEC has taken  to address accounting and auditing irregularities, we collected information  on SEC’s enforcement process, reviewed available SEC information, and  analyzed SEC’s enforcement activity involving accounting irregularities  from January 1, 2001, to February 28, 2002. Finally, we reviewed the current  and proposed approaches to corporate governance oversight and  disclosure in order to determine gaps in oversight and needed reforms. For  additional information on our scope and methodology, see appendix I.
We conducted our work in Washington, D.C., between February and  September 2002 in accordance with generally accepted government  auditing standards.
subsections: section_title: Background
paragraphs: The Securities Act of 1933 (Securities Act) and the Securities Exchange Act  of 1934 (Exchange Act) establish the principle of full disclosure, which  requires that investors receive sufficient information on investment  opportunities to help them make informed investment decisions. The  Securities Act requires that a public offering of securities be registered with  SEC. Although the Securities Act establishes a full disclosure regulatory  requirement applicable to the initial offering of securities, it does not  require any periodic reporting thereafter. The Exchange Act, designed to  facilitate subsequent trading of securities by investors, requires public  companies to comply with certain periodic reporting requirements to  ensure an ongoing flow of meaningful information that investors can use in  making investment decisions. To fulfill its mission, SEC also reviews  certain offering documents and periodic filings of selected companies to  determine whether they contain the required information.
The self-regulatory structure is premised on the concept of corporate  governance. Officers and directors of a public company are responsible for  ensuring that the preparation and content of financial statements fully and  accurately depict the company’s financial condition and the results of its  activities. However, the board of directors—particularly the audit  committee—and the public company’s internal auditor play important roles  in oversight. The primary role of the corporate board of directors is to  oversee the management of a company and to protect the interests of its  shareholders. Internal auditors offer another internal check on the  operations and control systems within a company. Independent external  auditors are to provide an additional safeguard in connection with all  public companies and many other entities.
All public companies registered with SEC are required to have their  financial statements audited by an independent public accountant.  Although a public company’s management is responsible for the  preparation and content of the public company’s financial statements, the  independent external auditor is responsible for auditing the financial  statements in accordance with generally accepted auditing standards  (GAAS). The purpose of the audit is to provide reasonable assurance that a  company’s financial statements are fairly presented in all material respects  in accordance with GAAP. As we testified before the Senate Committee on  Banking, Housing, and Urban Affairs on March 5, 2002, for over 70 years,  the public accounting profession, through its independent audit function,  has played a critical role in enhancing a financial reporting process that  facilitates the effective functioning of our capital markets. Independent  audits give the public confidence that issuers’ financial statements are  reliable and contribute to an efficient market for public companies’  securities. This sense of confidence can exist only if reasonable investors  perceive auditors as independent and expert professionals who have  neither interests in the entities they are auditing nor other conflicts of  interest. Investors and other users expect auditors to bring integrity,  independence, objectivity, and professional competence to the financial  reporting process, and to prevent the issuance of misleading financial  statements.
SEC has traditionally relied on the private sector to set standards for  financial reporting and independent audits, retaining largely oversight  responsibilities. As mentioned earlier, the Securities Act and the Exchange  Act require companies that sell securities in the United States to register  with SEC and make periodic filings disclosing the companies’ financial  status and changes in condition. Although the registration process requires  the accuracy of the facts represented in the registration statements and  prospectuses, this registration process does not guarantee accuracy. As  part of its oversight of the registration and filing process, SEC staff review  selected issuers’ filings for compliance with accounting and disclosure  requirements. Disclosure documents include   registration statements for new offers of securities,   proxy materials sent to shareholders before an annual meeting,   annual reports to shareholders,   quarterly statements of financial condition,  current reports on significant occurrences,   documents concerning tender offers, and   filings related to mergers and acquisitions.
SEC’s review of corporate filings may be a full review, a full financial  review, or monitoring of certain filings for specific disclosure items. SEC’s  Division of Corporation Finance (CorpFin) is responsible for this function  and reviews filings on a selective basis. CorpFin performs full reviews of  financial information, public disclosures, and related filings, as  appropriate, for substantially all registrations of initial public offerings  (IPO) of securities. As reported in our March 2002 report on SEC’s  operations, during the 1990s, the number of IPOs grew substantially, which  contributed to a 59 percent increase in corporate filings from 1991 to  2000. Full reviews are also required for all current reports of a change in a  registrant’s certifying accountant. Experienced staff select or “screen”  other filings for review on the basis of certain financial and qualitative  screening criteria. SEC’s goal in 2001 was to perform a full financial  review—a review of the companies’ financial statements, related footnotes,  and management’s discussion and analysis of financial condition and  results of operations—of about one-third of all public companies’ annual  reports. Earlier this year, we reported that SEC reviewed half that amount  in 2001. Finally, using screening criteria, experienced staff may select other  filings for monitoring, which involves reviewing a specific portion of the  filing.
The stock exchanges and markets, which are self-regulatory organizations  (SRO) whose registrations are approved by SEC under the Exchange Act,  also have an oversight role. A stock exchange or market establishes listing  standards, which are minimum quantitative and qualitative requirements  that companies must meet for their stock to be eligible for initial and  continued listing for trading. Listing standards prescribe the corporate  governance structures and accounting and auditing regulations that  companies listed on a stock exchange or market are expected to follow.  For example, listing requirements generally address conflicts of interest by  corporate insiders, the composition of audit committees, and shareholder  approval of corporate actions. The large exchanges also require their listed  companies to have boards of directors with an independent audit  committee to, among other duties, oversee the company’s internal controls  over financial reporting processes.
Securities analysts, through their research and stock recommendations,  play an important role in providing investors with information that may  affect investment decisions.  Analysts typically research the current and  prospective financial condition of certain publicly traded companies and  make recommendations about investing in those companies’ securities  based on their research. This research is likely to include all publicly  available information about the company and its businesses, including  financial statements; research on the company, industry, product or sector;  and public statements by and interviews with executives of the company  and its customers and suppliers. The analysis and opinions are generally  presented on a relative basis and compare companies’ performance within  a sector or industry.
Credit ratings produced by rating agencies are widely circulated; many  investors rely on these ratings to make investment decisions. These ratings  include opinions about the creditworthiness of certain public companies  and their financial obligations, including bonds, preferred stock, and  commercial paper. The credit ratings that result from analyses of this  information can affect securities markets in a number of important ways,  including an issuer’s access to and cost of capital, the structure of financial  transactions, and the ability of certain entities to invest in certain rated  obligations. According to SEC, the importance of credit ratings in securities  markets has increased significantly as markets have become more  complex. Although rating agencies, as a matter of policy, may rate the debt  of certain large corporate issuers, any company can hire a rating agency to  rate its debt before the debt is issued. Credit rating agencies rely on a  variety of public and nonpublic information, including company  presentations, audited and interim financial statements, and other relevant  industry materials. Pursuant to the Investment Advisers Act of 1940, as  amended, (Advisers Act), Nationally Recognized Statistical Rating  Organizations (NRSRO) register as investment advisers, are required to  have an adequate basis for their ratings, and are prohibited from having  undisclosed conflicts with respect to the ratings.
section_title: The Number of Restatements Has Grown Significantly and Trends Emerge
paragraphs: Although on a yearly basis the number of companies restating their  financial statements due to accounting irregularities makes up only a small  percentage of publicly listed companies, we found that the number of  restatements has grown significantly since 1997. In addition, of the 919  announced restatements we identified (app. III), the percentage of large  companies restating has grown rapidly since 1997. Whether large or small,  companies restate their financial results for varying reasons, but we  identified revenue recognition as the most frequently cited reason for  restating. Finally, in reviewing these restatement announcements, we found  that different parties can prompt a restatement, including the restating  company’s management, an external auditor, or SEC.
subsections: section_title: The Number of Restatements Has Grown, but Restating Companies Make Up a Small Portion of Listed Companies
paragraphs: The number of announcements of financial statement restatements has  increased significantly each year, rising from 92 in 1997 to 225 in 2001—an  increase of approximately 145 percent (fig. 1). Based on the number of  restatement announcements we have identified for the first half of 2002, we  project the increase since 1997 to rise to more than 170 percent by the end  of 2002.
While the average number of companies listed on NYSE, Nasdaq, and Amex  decreased 20 percent from 9,275 in 1997 to 7,446 in 2002, the number of  listed companies restating their financials increased from 83 in 1997 to a  projected 220 in 2002 (a 165 percent increase) (table 1). Based on these  projections, the proportion of listed companies restating on a yearly basis  is expected to more than triple from 0.89 percent in 1997 to almost 3  percent by the end of 2002. In total, the number of restating companies is  expected to represent about 10 percent of the average number of listed  companies from 1997 to 2002.
A number of research reports also found that financial statement  restatements had increased since 1997. Each of the reports used somewhat  different search methodologies and included slightly different types of  restatements but arrived at similar conclusions. Financial Executives  International (FEI) and M. Wu (2001) identified 523 restatements from 1997  to 2000 and noted a significant increase in restatements from 1997 to 1998  and continuing increases from 1999 to 2000. The Huron Consulting Group  (2002) identified 993 financial statement restatements from 1997 to 2001; it  also found that the number of restatements increased substantially from  1997 to 2001. The former SEC chief accountant and several accounting fellows also found an increase in the number of financial statement  restatements from 1997 to 1999.
section_title: The Percentage of Large Companies Restating Has Grown Since 1997
paragraphs: Until recently, restatements due to accounting irregularities were seen as  primarily affecting small companies and the technology industry. However,  for the restatements we identified, the number of large companies restating  their financial statements has increased significantly. Based on total assets,  large companies as a percent of the total restating companies have  increased from about 25 percent in 1997 to over 30 percent in 2001.  Generally, for the past 2 years, the number of large and small companies  restating has been equal. Likewise, the average (median) market  capitalization of a restating company has grown from about $500 million  ($143 million) in 1997 to $2 billion ($351 million) in 2002. While the  average size of listed companies increased about 60 percent from 1997 to  2002, the average size of companies restating their financials grew over 300  percent. (The median grew about 146 percent.)  Moreover, as the average  size of U.S. companies fell during the period from 1999 to 2002, the average  size of restating companies continued to increase.
Another indication that the size of companies restating has increased is the  growing number of NYSE-listed companies identified as restating. This  result is attributable to the fact that more large companies are listed on  NYSE than the other stock markets. Nasdaq has on average 62 percent  more companies listed on its market than NYSE. Historically more Nasdaq- listed companies restated due to accounting irregularities than NYSE-listed  companies. For example, in 1997, 21 NYSE-listed companies had  announced restatements; by 2001, the number had increased to 80, an  almost fourfold increase. During the same time, the number of Nasdaq- listed companies announcing restatements almost doubled from 61 to 113.  Also during the same time, the number of Amex-listed companies restating  increased from two to eight. However, during the first half of 2002, the 125  restatements attributable to companies listed on NYSE and Nasdaq were  almost evenly split at 53 and 54, respectively, even though more companies  are listed on Nasdaq. The remaining restating companies were listed on  Amex.
As figure 2 illustrates, for the announced restatements we identified, the  percentage of all NYSE-, Nasdaq-, and Amex-listed companies that restated  due to accounting irregularities increased between 1997 and June 2002. In  1997, less than 1 percent of NYSE-listed companies restated for accounting  irregularities. However, since about 2000, the percentage of NYSE-listed  companies restating has risen at a faster rate that the percentage of  Nasdaq- and Amex-listed companies restating, rising to over 3.5 percent of  all NYSE listings in 2002. Moreover, beginning in 2001, the percentage of  NYSE-listed companies restating exceeded the percentage of Nasdaq-listed  companies. Based on the number of restatements announced for the first  half of 2002, we project that the percentage of NYSE-listed companies  restating will continue to increase faster than the percentage of companies  listed on Nasdaq and Amex throughout 2002.
section_title: Revenue Recognition Is the Leading Reason for Restatements
paragraphs: Although public companies restate their financials for a variety of reasons,  revenue recognition was the reason for 38 percent of the 919 announced  restatements we identified (fig. 3). Restatements due to revenue  recognition generally include a company recognizing revenue sooner or  later than would have been allowed under GAAP or recognizing  questionable or fictitious revenue. For example, some of the companies  identified as restating because of revenue recognition had prematurely  recognized revenue. Cost or expense-related issues were the next most  frequently identified reason, accounting for almost 16 percent of all the  restatements we identified. (See table 2 for a description of each reason.)   These types of restatements include instances of improper cost  recognition, tax issues, and other cost-related improprieties that led to  financial misstatements. For example, the recent WorldCom  announcement that it had incorrectly recorded certain operating expenses  as capital expenditures, effectively overstating net income, was considered  a cost or expense-related restatement.
Although most of the other categories account for only a small percent of  total restatements, we found that securities-related restatements, which  made up about 6 percent of the total, increased significantly during the first  half of 2002. Securities-related restatements, which can stem from errors  and misstatements involving derivatives, warrants, stock options, and  other convertible securities, increased from 4.6 percent of restatements in  2001 to 12.4 percent of restatements in the first half of 2002. Moreover, we  identified more securities-related restatements in the first half of 2002 than  for all of 2001. Enron is one of the most notable companies whose  restatements were based on securities-related reasons (as well as others).  Many industry experts have questioned how Enron accounted for certain  derivative transactions, and some experts asserted that Enron improperly  valued sales of certain securities products to inflate its reported revenues.
section_title: A Variety of Parties Can Prompt Restatements
paragraphs: A number of parties, such as the restating company, an independent  auditor, SEC, or others can prompt financial statement restatements. As  shown in figure 4, we found that about 49 percent of the 919 announced  restatements reported the restating company as the party responsible for  recognizing the previous misstatements. However, external parties may  have been involved in discovering some of these misstatements, even if the  companies may have not made that information clear in their restatement  announcements or SEC filings. For example, Critical Path, Inc. (Critical  Path), a technology company, announced that it was launching an  investigation into accounting irregularities but did not mention in its initial  announcement that its external auditor had raised concerns about the  company’s accounting treatment of certain transactions before the  company announced that it had launched an investigation. SEC, the  external auditor, or some other external party (for instance, the Federal  Reserve or the media) was identified as prompting the restatement in 16  percent of the restatements we identified. In 35 percent of the  restatements, we were not able to determine who prompted the  restatement because the announcement or SEC filing did not clearly state  who actually discovered the misstatement of the company’s prior financial  results.
section_title: Restating Publicly Traded Companies Lost Billions of Dollars in Market Capitalization in the Days and Months Surrounding a Restatement Announcement
paragraphs: In the 3 trading days surrounding the initial announcement of a  restatement, the stock prices of most of the restating publicly traded  companies that we analyzed decreased by almost 10 percent and, in total,  these companies lost more than $100 billion in market capitalization. While  these losses are large in dollar terms, they are negligible compared with the  total market capitalization of the overall stock market. We found that  restatements involving revenue recognition accounted for more than half  of these losses. We also found evidence that the stock prices of the  restating companies remained depressed for longer periods, although other  factors may have contributed to this.
subsections: section_title: On Average, Stock Prices Fell in the Days Surrounding the Initial Restatement Announcement
paragraphs: We estimated that for the 689 cases we analyzed from January 1, 1997, to  March 26, 2002, the stock price of a company making an initial restatement  announcement fell by almost 10 percent (market-adjusted), on average,  from the trading day before to the day after the announcement (the  immediate impact). Unadjusted losses in the market capitalization of  companies issuing initial restatement announcements totaled over $100  billion, ranging from about $4.6 billion in 1997 to about $28.7 billion in 2000.  As table 3 shows, even when the losses were adjusted for general  movements in the overall market, restating companies lost $95.6 billion in  market capitalization. Although we attempted to control for general market  movements over each 3-trading day window in an effort to isolate the  impact of the announcement, other factors may have influenced the stock  price of a retating company during this period.
Compared with the total market capitalization of publicly traded  companies listed on NYSE, Nasdaq, and Amex, our estimate of the 3-day  losses in the market capitalization of restating companies remained below  0.2 percent per year with no clear trend over time (table 4). Our finding that  losses as a percentage of market capitalization appear relatively small is  not surprising considering the short duration of our analysis. We chose this  3-trading day window to focus, as much as possible, on the restatement to  the exclusion of other factors. Later in this report, we examine losses over  a longer period as well as the effects of restatements on overall market  confidence.
We also conducted a separate immediate impact analysis on the 230  announcements that were excluded from our primary analysis due to  missing TAQ data from January 1997 through June 2002. This analysis was  limited to a simple assessment of the unadjusted losses in market  capitalization due to restatement announcements. Ninety-one of these  cases involved companies that had stock traded on the OTC bulletin board  or Pink Sheets, and 71 involved companies that issued restatements after  the initial cutoff date of March 26, 2002. Of the 230 cases, we were able to  obtain historical stock price information from Nasdaq’s Web site for 202 of  these, each involving a different company. On average, the market  capitalization of these companies dropped by approximately 5 percent  from the trading day before through the trading day after the  announcement. Our estimate of unadjusted loss in the market  capitalization for these 202 companies issuing initial restatement  announcements suggested that an additional $14 billion was lost in the 3  trading days around the initial restatement announcement from 1997 to  2002.
section_title: Restatements Involving Revenue Recognition Led to Relatively Greater Losses
paragraphs: We found that announcements involving revenue recognition totaled over  $56 billion, or more than half, of the $100 billion in market capitalization  that restating companies lost in the 3 trading days around the initial  announcement (fig. 5). Of the 689 cases analyzed, revenue recognition was  the most frequently cited reason for restating (39 percent). While  restatements attributed to the acquisition and merger category accounted  for only 6 percent of the 689 restatements analyzed, they accounted for $19  billion or almost 20 percent of losses. However, the second most frequently  cited reason for restating, improper or questionable accounting for costs or  expenses (14 percent), totaled only about 4.8 percent, or about $4.8 billion,  of total market capitalization lost.
Conversely, we found that announcements involving restructuring, asset  impairment, and inventory issues resulted in an overall increase of $2.9  billion in market capitalization. This increase was largely driven by the  positive market response to two restatements, one by MCI  Communications Corporation in 1998 and another by Kimberly-Clark  Corporation in 1999. Both of these restatements related to the timing of  restructuring charges and led to increases in earnings and collectively  resulted in a  $4.7 billion increase in market value. However, with the  exception of these two restatements, the general market response for  restatements falling into this category was negative—a loss of $1.8 billion.
section_title: Restatement Announcements Appeared to Have Some Longer-Term Impact on the Market Capitalization of Restating Companies
paragraphs: Our analysis of 575 of the 919 restatement announcements showed that  companies announcing restatements lost billions of dollars in market  capitalization and, on average, the stock price of a company making an  initial restatement announcement fell by 18 percent (market-adjusted),  from 60 trading days before through 60 trading days after the  announcement (the intermediate impact). We found that, during this 6- month time frame, the total market capitalization loss of restating  companies more than doubled to almost $240 billion (table 5). On a market- adjusted basis, we estimated that these losses totaled almost $190 billion.  However, it is important to note that as we considered longer event time  frames, we increased the possibility that other factors and events may have  impacted a restating company’s stock price. For example, although AOL  Time Warner (AOL) lost market capitalization in the immediate days  surrounding its 1997 restatement announcement, we estimated the  intermediate impact on AOL to be a $24.3 billion gain due primarily to news  of the potential acquisition of CompuServe. The intermediate impact  analysis does not control for these types of market factors, and as a result,  any event that occurs during this time period is attributed to the  restatement announcement. In 1997, the AOL market capitalization  increase was large enough to produce an overall positive change in our  estimate of the intermediate impact on market capitalization for 1997,  although the average holding period abnormal return was negative.  Appendix I provides additional details and limitations of these measures.
As requested, we also analyzed the impact of 114 announcements that were  part of the 689 cases included in the immediate impact but were excluded  from the intermediate impact calculation for a number of reasons. Of these  114 cases, we excluded 44 cases that occurred in 2002 because we did not  have enough data to perform the 60-trading day calculations. Of the 70  remaining cases, we were able to obtain information on 60 of these, each  involving a different company. In 25 of the cases, the company filed for  bankruptcy protection within a reasonably short period of time following  the restatement announcement. In 17 of the cases, the company continued  as an independent concern; and in all but 4 of these cases, the company  was delisted from NYSE, Nasadq, or Amex for failure to meet minimum  listing standards. In the remaining 18 cases, the company either was  acquired by or merged with another company.
We analyzed the market capitalization impact of a restatement on the 25  companies that filed for bankruptcy and the 17 companies that continued  as independent concerns (42 companies in all). On average, the market  capitalization of these companies dropped by over 80 percent in the  months surrounding the restatement announcement. We calculated the  market capitalization of these firms to be approximately $37.4 billion 60  trading days prior to the restatement announcement and $9.3 billion 1  trading day prior to the restatement announcement. Trading was  suspended within 60 trading days following the restatement announcement  for the stocks of companies in all but 4 of these cases, and we estimated  that the market capitalization of these companies was $1.4 billion when  their stocks were suspended. Of the firms that continued as independent  concerns, their market capitalization was approximately $0.2 billion  roughly 3 months after the restatement announcement. Thus, an additional  $37 billion may have been lost following the restatement announcement for  these 42 companies. Enron was one of the companies that was included in  this analysis. By our estimates, Enron accounted for over 80 percent of the  losses.
We also conducted a separate intermediate impact analysis on the  additional 230 announcements that were excluded from our primary  analysis due to missing TAQ data. This analysis was again limited to a  simple assessment of the unadjusted losses in market capitalization due to  restatement announcements. We excluded 71 cases that occurred in 2002  because the restatements occurred after the initial cutoff date of March 26,  2002, and we could not locate data for 25 other companies, leaving 134  cases. We estimated that the market capitalization of these 134 companies  dropped over 10 percent, on average, from 60 trading days before, through  60 trading days after the announcement. However, we calculated that the  market capitalization of these firms increased by $2.3 billion during this 6- month time frame. This was primarily due to a positive gain of over $7 billion by At Home Corporation, which restated in 1999. Omitting At  Home Corporation, we estimated that an additional $5.1 billion was lost  following restatement announcements not captured in the initial analysis.
section_title: Restatements and Accounting Issues Appear to Have Negatively Impacted Investor Confidence
paragraphs: Not only do restatement announcements appear to affect company stock  prices, but some evidence suggests that these announcements and the  questions they raise about certain corporate accounting practices may  negatively impact overall investor confidence. Investor confidence is  difficult to quantify because it cannot be measured directly and because  investors consider a variety of factors when making an investment  decision. Nevertheless, we identified several survey-based indexes that  used a variety of methods to measure investor optimism and empirical  work by academics and financial experts. A periodic UBS/Gallup survey- based index aimed at gauging investor confidence conducted since 1996,  found that as of June 2002 investor confidence was at an all-time low due to  concern over corporate accounting practices (even lower than the period  just after September 11, 2001). According to another index, that asks  different questions, investor confidence levels were largely unaffected by  the September 11 terrorist attacks and that the current direction of investor  confidence is unclear. However, a number of academicians found that  investors generally believe that the growing number of restatements is  symptomatic of a larger, more pervasive problem and that this belief has  had a negative impact on investor confidence. Interviews with various  experts in the field also suggest that the growing number of financial  statement restatements has hampered overall investor confidence.  Although a variety of factors contribute to changes in mutual fund flows,  recent flow activity may also indicate that investor confidence has been  negatively affected.
subsections: section_title: UBS/Gallup Index of Investor Confidence Reveals Negative Impact of Accounting Concerns on Investor Confidence
paragraphs: The UBS/Gallup Index of Investor Optimism suggests that overall investor  confidence has declined significantly since September 2000 and has fallen  below the prior record low of 50 set in September 2001 (fig. 6). Between its  inception in late 1996 and September 2000, the Index fluctuated around  150. After a dramatic decline from about September 2000 through February  2001 (attributed to a variety of causes, notably the decline in the stock  market and the protracted litigation involving the presidential election), the  Index stabilized somewhat around a value of 85 during the last quarter of  2001. Following a peak of 121 in March 2002, the Index declined 62 percent  to an all-time low of 46 in July 2002. Overall optimism rose slightly in  August 2002 to 52, following 3 months of steep declines.
While investors have cited a number of reasons for the decline in the  investor optimism index, the surveys show that since February 2002 the  leading concern has been the negative impact of questionable accounting  practices on the market. Other reasons identified by a significant  proportion of all the investors polled included (1) the general economic  condition in the United States, (2) the war on terrorism, and (3) the Israeli- Palestinian conflict. However, these reasons consistently lagged behind  and were ultimately surpassed by questionable accounting practices. By  July 2002, 91 percent of all investors surveyed felt that accounting issues  were negatively impacting the market, up from 79 percent in February (fig.  7). Likewise, in May 2002, 71 percent believed accounting problems were  widespread, up from 62 percent in February. Moreover, 40 percent of those  interviewed in July 2002 said that they were less likely to invest in equities  as a result of questionable accounting practices, up from 34 percent in  February 2002.
Although U.S. securities markets are influenced by a variety of factors, the  results of the July 2002 survey may suggest that resolving corporate  accounting issues could significantly improve the outlook for U.S. markets.  For example, when investors were asked what changes would have an  extremely large impact on improving financial market conditions, the most  frequent response was a healthier economic environment (38 percent). The  next three items on the list were (1) strict prison sentences for corporate  managers who commit fraud (37 percent), (2) new SEC regulations to  address questionable accounting practices (34 percent), and (3) new  federal guidelines for ethical standards among corporate managers (31  percent).
section_title: At Least One Notable Expert Finds Stock Market Confidence Virtually Unaffected
paragraphs: The International Center for Finance at the Yale School of Management  calculates four indexes that are based on survey questions directed to both  individual and institutional investors. The indexes are based on the  following survey questions:  One-Year Confidence Index - “How much of a change in percentage  terms do you expect to see in the Dow Jones Industrial Average   for the next year?”
Buy on Dip Confidence Index - “If the Dow dropped 3   tomorrow, how would the Dow move the day after tomorrow?”
Crash Confidence Index - “What do you think is the probability of a  catastrophic stock market crash in the United States in the next   months?”
Valuation Confidence Index - “Are stock prices in the  too  low, too high, or about right when compared with measures of true  fundamental value?”
The results of the surveys reveal that although investors believe the market  is overvalued, they generally trust that market valuations will increase and  that, if they fall, they will rise again. Although these confidence indexes do  not directly measure the impact of earnings restatements on investor  confidence, they suggest general confidence in the market. Another  indication of this enduring confidence is the current price-to-earnings ratio,  which was valued at more than the historical average as of June 2002.
We focused on the three indexes that most directly measure investor  confidence. The first Yale index is the One-Year Confidence Index, which  indicates that institutional investor confidence has increased steadily from  November 2001 to June 2002, rising from 72 percent to 83 percent, while  individual investor confidence held steady around 89 percent. However,  this index may capture only investors’ sentiment about the 30 blue-chip  stocks that comprise the Dow and not about the entire market. The results  could be interpreted as reflecting only investors’ belief that companies  comprising the Dow are relatively free of financial statement restatements  and thus confident about only this subset of the market.
The second Yale index is the Buy on Dip Confidence Index, which yields  somewhat conflicting results. The results suggest that individual investor  confidence was at 79 percent in January 2002 and declined to 69 percent by  June 2002. However, this index finds that during the same period,  institutional investor confidence remained steady at around 60 percent.  This implies a divergence in opinion between individual and institutional  investors but it is unclear what this difference means for overall confidence  in the stock market and how confidence has been impacted by financial  statement restatements. However, these findings appear to suggest that  developments during 2001 and 2002 had some effect on individual  investors’ confidence but no real effect on institutional investors’  confidence.
The third Yale index is the Crash Confidence Index, which suggests that  investors’ confidence has been consistently low, less than 50 percent, for  both individual and institutional investors. However, once again the trend  in the data suggests a divergence between institutional and individual  investors. For example, results suggest that individual investors’ belief that  there will be no stock market crash in the next 6 months has gradually  declined since 1989. However, this index finds that during this same period,  results revealed no such trend for institutional investors, with the  exception of a large drop after September 11. Since that date, confidence  that the stock market will not crash has risen slightly for both institutional  and individual investors. This increase in confidence could reflect the  belief that the market has underperformed over the last 2 years and that  investors do not expect prices to fall significantly from their present lows.
section_title: Other Empirical Evidence and Interviews Suggest a Negative Impact on Investor Confidence
paragraphs: One study has attempted to quantify the loss in investor confidence  correlated with earnings restatements, finding a statistically significant  decline. The study measured the “earnings response coefficient” of  individual firms before and after their restatements. The earnings  response coefficient indirectly measures how responsive shareholders are  to earnings information by relating a company’s positive earnings  announcements to a positive effect on the company’s share price. This  study found that prior to a restatement, a statistically significant  relationship existed between quarterly earnings announcements and share  prices. After the restatement, however, an earnings announcement showed  no significant effect on share price, indicating that the market no longer  trusted the company’s information about its earnings and demonstrating a  loss of investor confidence. “Too often, restatements involve both management pressing and exceeding the limits of  reasonable accounting interpretations of GAAP and apparent auditor agreement and even  participation in the reporting choices that ultimately require restatement.”
Many of these experts believe that the decline in equity markets and  increased market volatility is symptomatic of increased risk and perceived  unreliability of financial reports; that is, investor confidence has suffered as  a result of the increase in financial statement restatements.
section_title: Mutual Fund Flows May Indicate that Investor Confidence Has Been Negatively Affected
paragraphs: Although a variety of factors influence investors’ decisions to buy or sell  mutual fund shares, mutual fund flow data may indicate that investor  confidence has been negatively affected by recent accounting-related  irregularities. Implicit in the decision to buy a share of a company’s stock is  the expectation of future payoffs in the form of dividends, share price  increases, or both. Investors’ confidence in their ability to accurately value  their equity holdings relies upon the accuracy of the information available.  If the information provided is not accurate, the reported income stream  generated from holding company shares becomes more uncertain and the  stock market investment riskier. According to some researchers, mutual  fund flows are another indictor of investor sentiment, because mutual  funds have become an important alternative to direct purchases of  securities. Consequently, this sector has been one of the biggest sources of  liquidity in the stock market, reflecting a large number of market  participants. Mutual fund investors demonstrate their confidence in the  stock market by buying or selling equity mutual fund shares. Annual equity  mutual fund net flows (sales less redemptions) declined significantly from  2000 to 2001, falling from $310 billion to $32 billion. Although the monthly  mutual fund net flows fluctuated substantially between October 2001 and  March 2002, they have exhibited a clear downward trend since March,  turning negative in June and July (fig. 8). The outflow of about $18 billion in  June 2002 was the fourth-largest outflow ever, and the outflow in July 2002  was the largest outflow on record at the time of our review.
section_title: SEC Has Been Investigating an Increasing Number of Cases Involving Accounting-Related Issues
paragraphs: As part of its mission to detect and deter fraud and abuse, SEC’s Division of  Enforcement (Enforcement) investigates possible violations of securities  laws, including those related to accounting issues. Enforcement may  recommend action to the Commission when an investigation shows that a  violation of the securities laws likely has occurred.  However, concerns  about staff constraints have raised questions about Enforcement’s ability to  effectively fulfill its mission. Based on concerns about the quality of  financial reporting and accounting abuses, SEC began to focus more  attention and investigative activity on accounting-related violations in the  late 1990s. From October 1998 to September 2001, almost one in five  enforcement cases brought by SEC involved accounting-related issues. To  identify the type of enforcement actions brought for accounting-related  violations and the parties against whom SEC brought the actions, we  analyzed 150 Accounting and Auditing Enforcement Releases (AAER)  issued from January 2001 through February 2002.
subsections: section_title: SEC’s Enforcement Function Has Been Challenged Due to Workload and Staffing Issues
paragraphs: Following the recently publicized accounting problems at several large  public companies, concerns were raised about the sufficiency of SEC’s  resources to address ongoing accounting-related issues. As we reported in  our March 2002 report on SEC’s resources, enforcement was identified as  one of the areas most affected by an increasing workload and limited staff  resources. We found that SEC’s enforcement workload from 1991 to 2000,  as measured by opened cases and the number of cases pending at the end  of the year, had increased 65 and 77 percent, respectively. Conversely, staff  years dedicated to investigations had increased only 16 percent during this  same period. Because SEC is unable to pursue every case, SEC officials  said that they must prioritize the cases they will pursue. The factors to be  considered include the seriousness of the wrongdoing and the message the  case would deliver to the industry and public. SEC’s enforcement process  is often lengthy, with many cases taking years to close.
section_title: SEC Makes Policy Decision to Focus More Attention on Accounting-Related Issues in the Late 1990s
paragraphs: “The motivation to meet Wall Street earnings expectations may be overriding common sense  business practices. Too many corporate managers, auditors, and analysts are participants in  a game of nods and winks. In the zeal to satisfy consensus earnings estimates and project a  smooth earnings path, wishful thinking may be winning the day over faithful representation.  As a result, I fear that we are witnessing an erosion in the quality of earnings, and therefore,  the quality of financial reporting. Managing may be giving way to manipulation; integrity  may be losing out to illusion.”
In response to these concerns, he articulated a private-public sector action  plan that included specific steps. Two of the steps directly required SEC  action. One directed SEC staff “to immediately consider interpretive  accounting guidance on the do's and don'ts of revenue recognition.”   Subsequently, SEC’s Staff Accounting Bulletin: No. 101 – Revenue  Recognition in Financial Statements (SAB 101) was issued in December  1999. According to an SEC official, about half of all SEC’s accounting- related enforcement cases involved revenue recognition issues. The other  step included SEC staff formally targeting reviews of “public companies  that announce restructuring liability reserves, major write-offs, or other  practices that appear to manage earnings. Likewise, our enforcement team  will continue to root out and aggressively act on abuses of the financial  reporting process.”  In September 1999, SEC announced its first  coordinated “sweep” of financial reporting violations, which resulted in 30  enforcement actions against 68 individuals and companies for engaging in  fraud and related misconduct in accounting, reporting, and the disclosure  of financial results by 15 public companies. Individuals cited included chief  executive officers (CEO) from 11 of the 15 companies.
SEC also leveraged the findings of a March 1999 report by the Committee of  Sponsoring Organizations of the Treadway Commission entitled  Fraudulent Financial Reporting, 1987 – 1997:  An Analysis of U.S.  Public Companies, which provided an extensive analysis of financial  statement fraud occurrences from 1987 to 1997. The report, based on SEC’s  AAERs, found that over half of financial reporting frauds in the study  involved overstating revenue and included information on common  characteristics of the companies committing the fraud, such as top  management involvement and infrequent audit committee meetings. In May  2000, to further supplement SEC’s financial fraud enforcement efforts, SEC  created the Financial Fraud Task Force within Enforcement. SEC has  reported that the task force continues to focus on the professionals  involved in these cases, especially the auditors, who “stand as the  watchdogs of the reporting process.”
section_title: SEC’s Enforcement of Accounting-Related Violations Has Increased
paragraphs: Enforcement investigates possible violations of securities laws, including  those related to accounting issues, which have increased from about 15  percent in fiscal 1996 to about 20 percent of SEC’s total enforcement  activity in fiscal year 2001. As figure 9 illustrates, if the evidence gathered  merits further inquiry, Enforcement will prompt an informal investigation  or request that SEC issue a formal order of investigation. Investigations can  lead to SEC-prompted administrative or federal civil court actions.  Depending on the type of proceeding, SEC can seek sanctions that include  injunctions, civil money penalties, disgorgement, cease-and-desist orders,  suspensions of registration, bars from appearing before the Commission,  and officer and director bars. After an investigation is completed SEC may  institute either type of proceeding against a person or entity that it believes  has violated federal securities laws. Because SEC has only civil  enforcement authority, it may also refer appropriate cases to the  Department of Justice for criminal investigation and prosecution.  According to SEC’s annual report, most enforcement actions are settled,  with respondents generally consenting to the entry of civil judicial or  administrative orders without admitting or denying the allegations against  them.
In March 2002, SEC announced plans to implement “real-time”  enforcement in an effort to take more immediate action to better protect  investors. Real-time enforcement is intended to protect investors by (1)  obtaining emergency relief in federal court to stop illegal conduct  expeditiously; (2) filing enforcement actions more quickly, thereby  compelling disclosure of questionable conduct so that the public can make  informed investment decisions; and (3) deterring future misconduct  through imposing swift and stiff sanctions on those who commit egregious  frauds, repeatedly abuse investor trust, or attempt to impede SEC’s  investigation processes. According to Enforcement officials, real-time  enforcement was used recently in its dealings with Adelphia  Communications Corporation (Adelphia) and WorldCom, which resulted in  the immediate agreement to restate their financial reports. However,  according to SEC officials, insufficient resources may inhibit the  effectiveness of this initiative, which depends upon prompt action by  Enforcement staff.
We found that from fiscal year 1999 through fiscal year 2001, almost 20  percent of all enforcement cases prompted were for accounting-related  violations, up from about 8 percent in 1990 (fig. 10). From 1999 to 2001,  SEC has brought an average of about 500 total enforcement actions each  year. Of these actions, an average of about 89 were accounting-related. To  determine the most frequent types of accounting-related violations found in  recent SEC enforcement cases, we examined 150 AAERs issued from  January 1, 2001, to February 28, 2002. Of the 150 AAERs we reviewed, 87  were administrative, 62 were civil litigation, and one was a report of  investigation. The most frequent types of accounting-related violations  identified included fraud, filing misleading information with SEC, and  failing to maintain proper books and records. Appendix XXII describes  some of the most frequently cited violations in greater detail.
About 75 percent of the 150 AAERs we reviewed were brought against  public companies or their directors, officers, employees, and other  parties. The remaining 25 percent involved actions brought against  accounting firms and CPAs. SEC officials said that enforcement actions for  cases of accounting-related violations are usually brought against the most  senior responsible corporate officials. They said that they prefer to charge  those who had first-hand knowledge of an accounting-related violation. In  addition, if an individual knows about an accounting-related violation and  does not take corrective action, that person’s failure to act may, under  some circumstances, be enough to impute liability. Officials also said they  usually charge recordkeeping violations directly against the violating  public company because the company is responsible for keeping records.  SEC may also charge the company with an accounting-related violation  when the evidence against a number of individuals is sufficient to presume  the behavior is corporate policy at the company. According to one SEC  official, historically, SEC has been reluctant to seek civil monetary  penalties against companies in financial fraud cases because their costs  would be passed along to shareholders who had already suffered as a result  of the violations.
Congress, market participants, and others have questioned the lack of  severity of many of the sanctions given the level of investor harm.  According to one SEC official, because monetary penalties are often paid  by officer and director insurance policies or are considered insignificant in  relation to the violation, Enforcement should pursue more officer and  director bars. However, this official acknowledges that SEC sought more  officer and director bars in fiscal year 2001 than in the previous year and  the test for imposing officer and director bars is restrictive. We found that  of the 150 AAERs we reviewed, SEC charged over 30 chief financial officers  (CFO) and over 30 CEOs with accounting-related violations. SEC imposed  23 injunctions; civil monetary penalties totaling over $1.2 million (ranging  from $10,000 to $162,000) against 19 individuals; over $2.5 million in  disgorgement (ranging from almost $18,000 to over $772, 000) against 10  individuals; 6 cease and desist orders; and 9 officer and director bars. See  appendixes V through XX for a summary of the actions taken by SEC in the  16 cases we analyzed.
Enforcement may also bring an enforcement action against other  individuals such as officers and principals who are not part of top  management (other participants and responsible parties). In the AAERs we  reviewed, SEC charged such individuals with accounting-related  violations that resulted in 31 injunctions, over $1.8 million in civil monetary  penalties (ranging from over $8,000 to $350,000) against 29 individuals;  over $1 million in disgorgement (ranging from $10,000 to over $521,000)  against 13 individuals; 21 cease and desist orders; and 9 officer and director  bars. For example, SEC and in some cases the Department of Justice have  filed suit against several former senior officers at public companies,  including Waste Management Inc. (Waste Management), Rite Aid  Corporation (Rite Aid), Critical Path, and Adelphia. These former  executives have been charged with securities law violations such as fraud,  fraudulent reporting, record-keeping violations, and insider trading.  Further, they have been accused of forging contracts, purchase orders, and  other documents, lying to auditors, and entering into undisclosed  agreements to falsely boost a company’s revenue.
Enforcement may also bring actions against accounting firms when the  facts indicate that the controlling principals of an accounting firm  committed an accounting or other violation. If the accounting firm is one of  the U.S. “Big Five,” the accounting issues must rise to the “national level”  before SEC will take action against the entire firm. SEC officials  characterized a national-level issue as one in which one or more principals  at the national office of the firm are culpable in connection with the  wrongful conduct, regardless of whether they are on the engagement team.  Enforcement also investigates improper professional conduct by  accountants and other professionals who appear before SEC, and the  agency may pursue administrative disciplinary proceedings against these  professionals under SEC’s Rules of Practice 102(e). If SEC finds that  securities laws have been violated or improper professional conduct has  occurred, it can prohibit professionals from appearing before SEC  temporarily or permanently. Enforcement officials told us that SEC  typically pursues cases in which a licensed accountant or auditor violates  the securities laws or demonstrates improper professional conduct under  Rule 102(e). A licensed accountant engages in improper professional  conduct if he or she intentionally or knowingly violates an applicable  professional standard or engages in either of the two types of negligent  conduct defined under the rule. As table 6 shows, from January 2001  through February 2002, SEC has taken action against 39 CPAs, 1  accountant, and 9 accounting firms. In addition, SEC has imposed 14  injunctions, over $7.7 million in civil monetary penalties (ranging from  $30,000 to $7 million) against 8 individuals and firms; over $83,000 in  disgorgements (ranging from over $16,000 to almost $42,000) against 2  individuals and 1 firm; and issued 33 cease and desist orders.
SEC may also charge outside auditors with fraud in certain cases. For  example:  If an outside auditor finds an accounting violation or misrepresentation  while conducting an audit but does not take action to correct the matter,  the auditor has failed to comply with GAAS, and issues a materially  misleading report.
If a fraud occurred that an outside auditor found out about and the  auditor failed to take appropriate action, the auditor has failed to  comply with GAAS and Section 10A of the Exchange Act, thus  contributing to a material misstatement (a GAAP violation).
If there is evidence to prove that an outside auditor also functioned as  an adviser with regard to financial reporting that violates SEC reporting  requirements, the auditor has violated GAAS independence rules.
SEC has brought a number of recent actions against accounting firms for  accounting-related violations. For example, in 2001, SEC obtained the first  antifraud injunction in more than 20 years against one of the “Big Five”  accounting firms. While neither admitting nor denying the charges, Arthur  Andersen agreed to pay $7 million to settle charges that it allegedly  “knowingly or recklessly issued materially false and misleading audit  reports on Waste Management’s financial statements.” SEC found that the  Waste Management financial statements that Arthur Andersen audited from  1992 to 1996 had overstated pretax income by more than $1 billion. In  another case, SEC brought a fraud action against an Arthur Andersen  partner for authorizing unqualified audit opinions on Sunbeam  Corporation’s 1996 and 1997 financial statements. In January 2002, SEC  censured KPMG LLP for engaging in improper conduct because it served as  an independent accounting firm for an audit client while making  substantial investments in the company. Most recently, while neither  admitting or denying the charges, in July 2002 PricewaterhouseCoopers  LLP settled SEC charges that it violated auditor independence rules.  Although SEC retains its current authority under Sarbanes-Oxley for  enforcing securities laws, this is an area that is likely to evolve as the new  Board begins to carry out its new duties to sanction accounting firms and  accountants that violate accounting and auditing standards.
section_title: The Growing Number of Accounting Problems in the Corporate Financial Reporting System Have Spurred Reforms
paragraphs: The growing number of accounting problems, particularly among large  public companies, illustrates weaknesses in the current corporate  governance and financial reporting system at virtually every level. In a  number of the restating companies we identified, corporate management,  boards of directors, and auditors failed in their roles, as have the securities  analysts and credit rating agencies that did not identify problems before  investors and creditors lost billions of dollars. As we have previously  reported and testified, current corporate governance and accounting  oversight structures have limitations and need to be improved. In an  effort to restore investor confidence, Congress passed and the President  signed legislation that requires major changes in the regulation of the  accounting profession and corporate governance. The Sarbanes-Oxley Act  focuses on many of the needed changes, including increasing corporate  executive accountability, creating a new auditor oversight body, increasing  SEC’s resources, and addressing stock analysts’ conflicts of interest.  Likewise, SEC and others have also taken actions or proposed action to  address some of these issues. Although the legislation authorized  additional funding for SEC, it continues to face challenges in addressing its  traditional and new more expansive roles.
subsections: section_title: Corporate Governance, Auditing Oversight Systems, and Financial Reporting All Have Come Under Scrutiny
paragraphs: As the number of financial statement restatements resulting from  accounting irregularities has increased, the existing fragmented corporate  governance and accounting oversight structures have been called into  question (fig. 11). First, questions have been raised about the adequacy of  the current system of corporate governance (including corporate  management, boards of directors, audit committees, and auditors) and its  ability to protect investors and ensure the integrity of public disclosures, as  evidenced by recent accounting issues and corporate failures. Second, the  effectiveness of independent auditors, who are supposed to provide an  additional level of verification for the financial information disclosed to the  public, has also been scrutinized due to failures to perform impartial and  unbiased audits to ensure that financial data are fairly represented in a  number of cases. Third, the sudden unexpected collapse of large public  companies like Enron and WorldCom has raised questions about the role  played by market participants such as securities exchanges, securities  analysts, and credit rating agencies.
Executives and boards of public corporations have an important, difficult,  and challenging responsibility to protect the interests of shareholders,  because corporations must address issues such as globalization and rapidly  evolving technologies and at the same time maintain or raise market values  by meeting quarterly earnings projections. These pressures, combined with  executive compensation arrangements, often translate into a focus on  short-term business results. This situation can create perverse incentives to  “manage” earnings to report favorable financial results, and to disguise  risks, uncertainties, and commitments by failing to provide transparency in  financial reporting. In certain cases, audit committees have not effectively  helped to protect shareholder interests and at times, failed to provide  sound leadership and oversight of the financial reporting process.
Likewise, as we reported in 1996, the financial reporting model, also critical  in promoting an effective allocation of capital among companies, does not  fully meet users’ needs for transparency. The existing reporting model is  not well suited to identifying and reporting on key value and risk elements  inherent in our twenty-first century knowledge-based economy. We found  that despite the continuing efforts of the Financial Accounting Standards  Board (FASB) and SEC to enhance financial reporting, changes in the  business environment—such as the growth in information technology, new  types of relationships between companies, and the increasing use of  complex business transactions and financial instruments—constantly  threaten the relevance of financial statements and pose a formidable  challenge for standard setters. A basic limitation of the model is that  financial statements present the business entity’s financial position and  results of its operations largely on the basis of historical costs, which do  not fully meet the broad range of user needs for financial information.  Enron’s failure and the inquiries that have followed again have raised many  questions about the adequacy of the current financial reporting model,  such as the need for additional transparency, clarity, more timely  information, and risk-oriented financial reporting.
In addition, as we reported earlier this year, boards of directors and their  audit committees are a critical link to fair and reliable financial reporting.  However, recent actions or inaction by boards of directors (especially audit  committees) of several public companies have raised questions about how  well this system of oversight functions. For example, the Report of  Investigation by the Special Investigation Committee of the Enron Board  of Directors (known as the Powers Report) identified several failures of the  board in overseeing Enron’s relationships with several special purpose  entities.  The report found that while Enron’s board put certain controls in  place, many of the controls were not adequate nor were they properly  implemented. Moreover, the report also found that while the board did not  receive certain information, it also failed to appreciate important  information that was brought to its attention. Finally, the report found that  the audit committee had a responsibility to review related-party  transactions but performed only a cursory review. More generally,  Congress, experts, and others have raised questions about the  independence of corporate boards and the effectiveness of the independent  director function in protecting shareholders.
subsections: section_title: Allegations of Accounting Fraud Raise Questions about the Quality of Audits
paragraphs: Auditors are responsible for planning and performing audits to obtain  reasonable, but not absolute, assurance that financial statements are free  from direct and material misstatement, whether caused by error or fraud.  However, Congress and others have questioned the effectiveness of the  voluntary, self-regulatory system maintained through the American  Institute of Certified Public Accountants (AICPA) because it lacks a  meaningful oversight structure or substantive penalties. Likewise, some  critics of the accounting profession’s peer review system, which was  established to monitor member public accounting firms for compliance  with standards, viewed the system as largely ineffective (fig. 11). Although  SEC has the statutory authority to establish accounting standards and  issues interpretative guidance and staff accounting bulletins on accounting  and auditing matters, SEC has delegated much of its responsibility for  setting standards for financial reporting and independent audits to the  private sector. It has accepted accounting standards (GAAP) established by  FASB as the primary standards for preparation of financial statements.  Similarly, SEC has accepted the auditing standards, GAAS, promulgated by  the Auditing Standards Board (ASB) as the standards for independent  audits.
As stated over the years by many who have studied the accounting  profession, no major aspect of the independent auditor’s role has caused  more difficulty than the auditor’s responsibility for detecting fraud. As we  testified earlier this year, in August 2000, the Panel on Audit Effectiveness  concluded that the auditing profession needed to address vigorously the  issue of fraudulent financial reporting, including fraud in the form of  improper earnings management. The report expressed concern that  auditors may not be requiring enough evidence—that is, they have reduced  the scope of their audits and the level of testing below what is needed to  reasonably ensure the reliability of the financial information upon which  they report. Some academics have questioned the profession’s movement  toward audits that focus on business processes and the information  systems used to generate financial information. Likewise, others question  the AICPA’s proposed audit processes, which make many of the audit steps  aimed at detecting a material misstatement caused by fraud optional  instead of mandatory.
The increase in financial statement restatements involving accounting  irregularities has caused questions about the independence and quality of  audits being conducted by the independent auditors to resurface. As we  testified, the current fragmented corporate governance and oversight  structure and lack of a strong self-disciplinary mechanism as a contributing  factor. Likewise, since the mid-1970s, many observers of the auditing  profession have expressed concerns about expanding the scope of  professional services provided by the public accounting profession. One  common concern is that auditors’ fees for consulting services, which are a  substantial part of the total fees, can create actual or perceived conflicts  that threaten auditors’ independence. The independence of public  accountants—both in fact and in appearance—is crucial to the credibility of financial reporting and, in turn, the capital formation process. While  this issue has been studied and debated for years, the Enron failure has  brought the issue to the forefront once again because of the close  relationship between Arthur Andersen and Enron. As mentioned  previously, two recent cases, although not related to restatements,  addressed this growing concern. First, SEC censured KPMG LLP in January  2002 for engaging in improper professional conduct because it served as an  independent accounting firm for an audit client while making substantial  investments in money market portfolios operated by the client. Second, in  July 2002, while neither admitting nor denying the charges,  PricewaterhouseCoopers LLP settled SEC charges that it violated auditor  independence rules.
section_title: Recent Accounting Cases Have Raised Questions About Other Players as Well
paragraphs: Stock exchanges or markets, credit rating agencies, and securities analysts  also have roles in the corporate governance or corporate financial  reporting process. Listing standards provide investors with some degree  of assurance that the public companies listed on national stock exchanges  and markets generally meet certain minimum standards of operation.  Listing standards address several quantitative requirements such as  operating history, income, and share price. They also include specific  guidelines on corporate governance. Although public companies that fail to  meet listing standards can be delisted, not all companies that fail to comply  with the guidelines are delisted. For example, we reported in our 2001  report on Amex listing standards, in the first 8 months of 2000, one-third of  Amex’s new listings did not meet the exchange’s listing standards.
Recent questions about the quality of financial disclosure have resulted in  criticism of the role played by credit rating agencies and securities analysts  in promoting investment in many now-bankrupt companies or failing to  downgrade ratings before problems occurred, such as at Enron and  WorldCom. Credit rating agencies have been criticized as reactive and  unable to identify potential problems. Likewise, one of the primary flaws  cited in the existing analyst structure is the potential for conflicts of  interest. For example, providing investment-banking services, such as  underwriting an IPO or advising on a merger or acquisition, can be a  lucrative source of revenue for an analyst’s firm. As a result, analysts may  face pressure not to say or write things that could jeopardize existing or  potential client relationships for their investment banking colleagues.
Moreover, brokerage firms’ compensation arrangements can put pressure  on analysts to issue positive research reports and recommendations. Many  analysts are paid at least partly and indirectly on the basis of their firms’  underwriting profits. Therefore, they may be reluctant to make  recommendations that could reduce such profits and, hence, their own  compensation. Recently securities analysts have been investigated for  recommending stocks of companies to help investment-banking colleagues  win lucrative underwriting contracts, even though e-mail messages from  analysts indicated that privately the analysts did not support their public  ratings. Most notably, the New York State Attorney General investigated  Merrill Lynch & Company, Inc.’s research practices, which resulted in the  firm paying a $100 million fine in May 2002. In addition, other regulators  and prosecutors launched inquiries into analyst research. In September  2002, NASD fined Salomon Smith Barney (Salomon) $5 million for issuing  materially misleading research in 2001 on Winstar Communications, Inc.  (Winstar). Separately, NASD announced that it filed a complaint against  the former managing director of Salomon’s Equity Research Department  and a Salomon vice president. NASD alleged that the two worked closely  with Winstar’s management and consulted management prior to issuing  research reports that reportedly reflected their independent judgment and  analysis. NASD also found that Salomon’s reports failed to adequately  disclose the risks of investing in Winstar, including important risks relating  to funding and bankruptcy. The complaint also charged that while publicly  recommending Winstar to investors, they expressed contrary views in  private.
section_title: Recent Legislation, Other Actions, and Ongoing Initiatives Address Major Aspects of Oversight
paragraphs: To address many of the limitations of and lapses in the existing structure,  Congress, SEC, and others have taken a variety of actions. The Sarbanes- Oxley Act was enacted on July 30, 2002, to overhaul the existing corporate  governance and accounting oversight structure by increasing corporate  executive accountability, creating a new auditor oversight body,  significantly increasing SEC’s budget, and addressing other issues such as  securities analysts’ conflicts of interest. SEC has also taken a number of  steps aimed at strengthening its review function, corporate accountability,  and enforcement program. Likewise, the SROs have strengthened rules that  address certain conflict-of-interest issues and have proposed listing  standards that address corporate governance.
subsections: section_title: New Law Addresses Regulation of Accounting and Corporate Governance
paragraphs: The Sarbanes-Oxley Act addresses many of the concerns about corporate  reporting by enhancing the oversight of financial accounting. The act  creates a new oversight body, the Public Company Accounting Oversight  Board, to oversee audits of public companies. The act requires that any  public accounting firm that performs any audit report for any publicly held  company register with the Board. To ensure the independence of this new  Board, it will be structured as a nonprofit corporation funded by  registration and annual fees from registered public accounting firms and  support fees assessed to issuers. A majority of its members will be  nonaccountants. Unlike the previous oversight structure (that is, the  defunct Public Oversight Board), this new board will have sweeping  powers to inspect accounting firms, set rules and standards for auditing,  and impose meaningful sanctions on violators. Furthermore, the act  addresses auditor independence issues, among other things, by prohibiting  auditors from providing certain nonaudit services to their audit clients and  strengthening the oversight role of the board of directors. To increase  corporate accountability, corporate boards of directors’ audit committee  members must be “independent” and are responsible for selecting and  overseeing independent auditors. In addition, pursuant to SEC rules  required by the act, top corporate officials will have to personally attest to  the accuracy of their firm’s accounting (and can face civil and criminal  penalties if the certifications are false). The act also addresses numerous  other issues aimed at strengthening investor confidence, including  requiring that the SROs and SEC implement rules to address analysts’  conflicts of interest, increasing criminal sanctions, and requiring that SEC  issue rules that address standards of professional conduct for attorneys.  (See app. XXIII, for a detailed side-by-side comparison of the Sarbanes- Oxley Act and the existing governance and accounting oversight structure.)
section_title: SEC and Others Have Taken Steps to Address Concerns about the Existing Oversight Structure
paragraphs: Because staffing levels were expected to remain flat while filings increased  in number and complexity, in 2001 SEC began reconsidering how it  approaches selecting filings for review and how to review those filings. As  part of this effort, SEC began reviewing its existing screening criteria to  make better use of its resources and target the areas of highest risk. The  plan includes limiting reviews to specific disclosure issues or areas of  material importance and assigning reviews to experienced staff. Following  the sudden collapse of Enron, in late December 2001, SEC announced that  CorpFin would review the annual reports filed by all Fortune 500  companies in 2002 as part of its process of reviewing disclosures—financial  and nonfinancial—by public companies. According to SEC, CorpFin is to  focus on disclosures that appear to be critical to an understanding of each  company’s financial position and results but that also appear to conflict  significantly with GAAP or SEC rules and guidance or to be materially  deficient in explanation or clarity.
According a CorpFin official, the division staff are looking at qualitative  disclosure as a general matter and, in light of recent events, putting a strong  emphasis on companies’ financial statements and the “management  discussion and analysis” portion of annual reports. He added that in an  initial review of the Fortune 100 companies, SEC sent a “small number” of  letters to issuers, expressing concerns about their reports. The subsequent  separate review of the Fortune 500 companies identified more widespread  problems. In June 2002, CorpFin announced that it had completed  screening the annual reports of most of the Fortune 500 companies and had  selected a “very significant number” for a more detailed review. Moreover,  staff had issued letters to certain companies and had started to receive  responses. According to a CorpFin official, as of June 17, 2002, the staff had  not referred any matter arising from the review to Enforcement for further  inquiry that was not already the subject of Enforcement interest or  activity. “either (a) file a statement in writing, under oath, in the form of the “Statement Under Oath  of Principal Executive Officer and Principal Financial Officer Regarding Facts and  Circumstances Relating to Exchange Act Filings,” or (b) file a statement in writing, under  oath, describing the facts and circumstances that would make such a statement incorrect. In  either case, such statement shall further declare in writing, under oath, whether or not the  contents of the statement have been reviewed with the company’s audit committee, or in the  absence of an audit committee, the independent members of the company’s board of  directors.”
As of September 20, 2002, SEC’s Web site posted that 841 companies had  filed certifications, 13 companies indicated that their officers could not file  such an oath, and the remaining oaths are due between September 2002  and December 2002, depending on when the company’s fiscal year ends.
On May 10, 2002, SEC approved NYSE and NASD rules that address issues  involving analysts’ conflicts of interest (table 7). However, these rules  only enhance the scope of the SROs’ authority over analysts employed by  their members; due to jurisdictional limitations, the rules do not apply to  analysts employed at credit rating agencies or analysts who are not  employed by member broker-dealers. SEC announced in July 2002 that it  also plans to propose rules to address conflicts of interest among securities  analysts.
In 2002, Nasdaq and NYSE also announced plans to strengthen corporate  governance through new listing standards. In May and July 2002, Nasdaq  announced that its board of directors had approved modifications to  several of its corporate governance standards. Both NYSE and Nasdaq have  proposed similar changes. According to Nasdaq officials, it is in the  process of harmonizing its proposed listing standards with the provisions  set forth in the Sarbanes-Oxley Act. Nasdaq’s planned rule changes include  the following:  tightening the definition of an independent director;   requiring corporate boards to have a majority of independent directors;  requiring regular meetings of independent directors in executive   strengthening the role of independent directors in compensation and   requiring corporate codes of conduct;  mandating continuing director education;  requiring that related-party transactions be approved by an issuer’s audit  committee or comparable body;   clarifying that a company can be delisted for misrepresenting   requiring that companies disclose the receipt of an audit opinion with a   requiring shareholder approval for stock option plans and changes;   permitting companies to disseminate material information via  Regulation FD (Fair Disclosure)–compliant methods of disclosure,  instead of solely by a press release; prohibiting loans to officers and directors consistent with the Sarbanes-  requiring that non-U.S. issuers disclose any exemptions to corporate  governance requirements.
On August 1, 2002, NYSE’s board of directors approved standards and  changes in the corporate governance and practices of NYSE-listed  companies that were first announced on June 6, 2002. These new standards  seek to further strengthen issuer accountability, integrity, and  transparency. NYSE also views them as an opportunity to strengthen the  checks and balances among investors, issuers, and the NYSE market.  According to NYSE officials, it has harmonized its proposed listing  standards with the provisions set forth in the Sarbanes-Oxley Act. On  August 16, 2002, NYSE filed the proposed rule change with SEC for its  approval. Some of the final changes would include the following:  requiring corporate boards to have a majority of independent directors;  requiring that boards affirmatively determine that independent directors  have no material relationship with the listed company;  lengthening the “cooling-off” period for former employees and  independent auditors before they could serve as an independent  director of the company they worked for or audited;  enhancing the independence requirements applicable to the  independent audit committee, and increasing the authority and  responsibility of that committee, including granting it the sole authority  to hire and fire the independent auditors;  requiring listed companies to have nominating, corporate governance,  and compensation committees composed entirely of independent  directors;  requiring nonmanagement directors to meet at regularly scheduled  executive sessions without management;  requiring listed companies to have an internal audit function;  requiring listed companies to adopt and disclose governance guidelines,  codes of conduct and ethics, and charters with specified provisions for  the independent audit, nominating, and compensation committees;  requiring shareholder approval for equity compensation plans;  requiring an annual CEO certification of compliance with NYSE  corporate governance standards; and  providing for NYSE to issue a public reprimand letter to a listed  company that violates an NYSE governance listing standard, although  delisting remains the ultimate penalty.
Although Nasdaq’s and NYSE’s proposed changes to their listing standards  are important and positive steps, more could be done to strengthen  corporate governance. For example, the proposals do not require a  supermajority of independent directors, do not specifically bar a CEO from  serving as chairman of the board of directors, could more broadly address  interlocking directorships, and do not require that key board committees  have their own resources and access to independent advisers as and when  they deem necessary. As these standards are being reviewed and finalized,  we believe these issues continue to deserve ongoing consideration by the  stock markets and SEC, as appropriate.
Finally, SEC is again exploring whether additional oversight could apply as  a condition to being recognized as an NRSRO. In 1994, SEC issued a  concept release requesting public comment on the appropriate role of  credit ratings in the federal securities laws, and the need to establish  formal procedures for designating and monitoring the activities of  NRSROs. In response to comments on this release, in 1997, SEC proposed  a rule that would have adopted a definition of the term NRSRO that set  forth the criteria a rating organization would have to satisfy to be  acknowledged as an NRSRO. To date, there has been no action on this  proposal.
section_title: SEC Faces Ongoing Human Capital Resources, Technology, and Process Challenges
paragraphs: Effectively managing its human capital resources, technology, and  processes is likely to remain a challenge for SEC in the future. As we  reported earlier this year, SEC faces challenges in effectively carrying out  its regulatory activities because of existing workload and staffing  imbalances. In particular, we found that SEC’s ability to review corporate  filings has been strained, resulting in fewer corporate filings being  reviewed each year. Likewise, we found that the number of enforcement  actions pending at the end of the year had increased substantially. SEC  officials noted that these circumstances were also due to the increasing  complexity of accounting and disclosure, which require more time to  review filings and investigate matters. In addition to increasing workloads,  CorpFin and Enforcement have had to manage high turnover rates and  large numbers of staff vacancies. SEC’s current experience with hiring  additional staff (authorized by its supplemental appropriation for its fiscal  year 2002) illustrates that SEC is likely to face ongoing challenges in filling  many of these positions, especially accountants. The supplemental  appropriation gives SEC the authority to hire 100 additional staff, which  according to SEC, would be best filled by primarily hiring accountants. SEC  officials stated that while they are committed to hiring a significant number  of accountants with the supplemental appropriation, the personnel process  required for hiring accountants is more time consuming and cumbersome  than the process for hiring attorneys. They added that this might result in  SEC hiring more attorneys to fill the currently available positions.
In addition to challenges in recruiting and hiring staff, SEC faces ongoing  human capital management challenges, as discussed in our September 2001  report—which found that although compensation was the primary reason  staff left or would consider leaving SEC, SEC has other human capital  challenges to address. SEC now has pay parity, the ability to pay  employees on par with other federal banking agencies. When funded and  fully implemented pay parity should help SEC attract and retain staff, but  higher compensation alone cannot solve SEC’s retention challenges in the  future. Because SEC’s employees can always opt for higher private-sector  pay, SEC’s efforts to enhance its human capital programs as a means to  recruit and retain employees will become more important. For example,  our 2001 survey of current and former SEC accountants, attorneys, and  examiners provided useful information that SEC management can use to  identify key opportunities to improve employee job satisfaction, including  advancement opportunities, the appraisal process, the performance  incentive system, and the work review process.
SEC also faces future challenges in the technology. As we identified in our  SEC resources report, budgetary limitations have historically confined  SEC’s technology budget to fund hardware and software maintenance and  technology infrastructure needs. The Sarbanes-Oxley Act authorized a  budget increase that would begin to allow SEC to fund some of its existing  unfunded technology needs, such as purchasing technology that would  enhance the ability of reviewers to detect trends in corporate filings and  better leverage SEC’s limited staff. However, to effectively enhance SEC’s  technological base, SEC will need to develop a process to prioritize  technology needs and explore ways to more fully utilize available  technology that will allow it to leverage existing staff resources. According  to SEC officials, this is an area that SEC had not fully explored due to  resource constraints but holds promise for strengthening the agency’s  regulatory efforts in the future. Moreover, additional funding in this area  may enable SEC to reinvigorate certain regulatory efforts, including  enforcement and corporate filing reviews, by making greater and more  effective use of technology.
Going forward, SEC also faces a number of process-oriented challenges as  it attempts to rebalance its existing responsibilities, which include  reviewing filings and enforcing securities laws, with its new responsibilities  under the Sarbanes-Oxley Act. An effective strategic planning process is  particularly important to help SEC stay abreast of ongoing and future  challenges. As we reported in March 2002, SEC had not engaged in a  comprehensive strategic planning process that would enable it to  proactively manage its dynamic regulatory responsibilities. However,  since that time, SEC has taken the first step in developing a comprehensive  process by engaging a consulting firm to help it review existing operations.  Once this review is complete, SEC will be in a position to develop a  dynamic comprehensive strategic planning process that better addresses  its mission goals and staffing needs.
Finally, the Sarbanes-Oxley Act increases the demands placed on SEC to  effectively manage its human capital resources and put processes in place  that will allow it to effectively carry out its new duties and responsibilities  that are important to restoring and maintaining shareholder confidence in  U.S. markets. Among the most important of SEC’s new responsibilities is its  role in the oversight of the Board, which in turn is charged with overseeing  the accounting profession. As mentioned earlier, SEC has always had an  important role in overseeing the financial reporting process. However, in  the future SEC will have increased responsibilities associated with the role  it is expected to play in ensuring that the Board effectively discharges its  duties.
section_title: Observations
paragraphs: The significant increase in the number of financial statement restatements  and their impact on markets, shareholders, and employees, raise a number  of important questions that warrant further analysis but were beyond the  scope of this review. These questions include determining (1) which public  accounting firms audited the 919 restatements we identified, (2) whether  they were new or existing auditors, (3) what role the auditors played in  identifying the issue that resulted in the restatement, and (4) whether the  auditors raised concerns about any questionable accounting practices  before the restatement. We plan to address many of these questions and  similar issues in our ongoing work in this area, which includes a study on  mandatory audit rotations required by the Sarbanes-Oxley Act. In addition,  our analysis of SEC’s enforcement actions involving accounting-related  cases also raises questions about the adequacy and timeliness of SEC’s  activity in this area and the sanctions being sought by SEC in light of the  violations. The Sarbanes-Oxley Act requires that SEC complete two studies  on violators and violations, including individuals and entities that have and  have not been charged, and enforcement actions involving financial report  violations imposed over the past 5 years. These studies should provide  additional information and analysis that will expand on that done in this  report.
The limitations discussed concerning the current governance and oversight  structure raise issues that must also be addressed as the new structure is  being implemented. Effective governance structures composed of highly  qualified individuals are key to the success of any organization and system  on which others must rely. In this regard, several factors are important to  the successful implementation of this new structure. First, members of the  new oversight board must not only meet high qualifications and  independence requirements, but also fully embrace the principles  articulated in the act and the need for fundamental reform. Second, the  Board, once established, should provide active and ongoing input to the  accounting profession. Third, the Board must ensure that meaningful audit  standards are adopted and that they are being followed. Fourth, the Board  should ensure that its policies and actions are structured so as to  encourage all parties to “do the right thing.”  Fifth, the Board should ensure  that a reasonable degree of transparency exists in connection with its  actions and activities. Finally, the Board must swiftly and appropriately  punish wrongdoers.
section_title: Agency Comments and Our Evaluation
paragraphs: The Director, CorpFin, provided written comments on a draft of this report  that are reprinted in appendix II. SEC commented that the report was  thorough and reiterated several of our major findings. First, SEC  commented about the difficulty of isolating the impact of restatements on  market capitalization, but noted that our thorough methodology and review  of available resources gives the most complete picture feasible. SEC also  agreed that the report identified and confirmed a number of important  developments. Specifically, SEC listed the significant increase in  restatements, the increase in the number of large companies restating, and  the fact that revenue recognition and improper expense accounting are  among the most common reasons for restating. Second, SEC stated that it  is fully committed to the rule-making and other activities needed to fully  implement “the letter and spirit of the Act.” SEC added that it is particularly  mindful of our observations concerning the selection of members of and  implementation of the Board. Third, SEC noted that the quantitative work  in this report lays the groundwork for its mandated study on SEC  enforcement actions involving violations of reporting requirements over  the past 5 years. Finally, SEC expressed its commitment and resolve, given  the additional resources that the Sarbanes-Oxley Act identified as  necessary for SEC to carry out its responsibilities, to meet its ongoing  human capital, technology, and process challenges.
We requested and received technical comments from officials of NASD,  Nasdaq, NYSE, and Amex on selected excerpts of a draft of this report and  incorporated their comments into this report as appropriate.
We also requested comments on drafts of the cases from the 16 companies  selected as case studies. We received technical comments from 8 of the 16  companies and incorporated their comments into this report as  appropriate. The remaining eight companies either informed us that they  had “no comments” or did not respond to our request.
As agreed with your office, we plan no further distribution of this report  until 30 days from its issuance unless you publicly release its contents  sooner. At that time, we will send copies of this report to the Ranking  Minority Member of the Senate Committee on Banking, Housing, and  Urban Affairs; the Chairman and Ranking Minority Member of the Senate  Subcommittee on Securities and Investment, Senate Committee on  Banking, Housing, and Urban Affairs; the Chairman and Ranking Minority  Member, Senate Committee on Governmental Affairs; the Chairman and  Ranking Minority Member, House Committee on Financial Services; and  other interested congressional committees. We will also send copies to the  Chairman of SEC and will make copies available to others upon request. In  addition, this report is also available on GAO’s Web site at no charge at  http://www.gao.gov.
If you or your staff has any questions regarding this report, please contact  Ms. Orice M. Williams or me at (202) 512-8678.
section_title: Objectives, Scope, and Methodology
paragraphs: As agreed with your staff, our objectives were to (1) determine the number  of, reasons for, and other trends in financial statement restatements since  1997; (2) analyze the impact of restatement announcements on the  restating companies’ stock market capitalization; (3) research available  data to determine the impact of financial statement restatements on  investors’ confidence in the existing U.S. system of financial reporting and  capital markets; (4) analyze the Securities and Exchange Commission (SEC  or Commission) enforcement actions involving accounting and auditing  irregularities; and (5) describe the major limitations of the existing  oversight structure and steps that have been and are being taken to ensure  the integrity of corporate financial disclosures and ongoing challenges.
subsections: section_title: Identifying the Number of and Reasons for Financial Statement Restatements
paragraphs: To determine the number of and reasons for financial statement  restatements since 1997, we identified financial statement restatements  announced from January 1, 1997, through June 30, 2002, using the Lexis- Nexis online information service to search for press releases and other  media coverage on financial statement restatements. When developing our  search methodology for identifying financial statement restatements, we  reviewed the approaches used in several academic and nonacademic  research papers.  Using the Lexis-Nexis “Power Search” command and  the “US News, Combined” database, we performed a keyword search using  “restate,” “restates,” “restated,” “restating,” or “restatement” within 50  words of  “financial statement” or “earnings.” We also used other variations  such as “adjust” and “amend” and “revise.” In addition, we included some  restatements identified through other sources such as SEC.
To our knowledge no comprehensive, authoritative database of financial  statement restatements exists. While several academic and nonacademic  researchers have constructed and maintained their own financial statement  restatement databases, these lists are generally proprietary and are not  publicly available. Moreover, these researchers use different methods and  criteria for constructing their databases, as well different sample periods,  making it difficult to directly compare the database of financial statement  restatements that we constructed with the databases that others have  compiled. Because we were unable to determine its relative completeness  or accuracy, our database, which included 919 restatement  announcements, should be viewed as a sample of financial statement  restatements identified using our particular search methodology and the  results of our analysis should be viewed in this context.
Although there are many reasons for financial statement restatements,  most restatements are routine and do not indicate accounting  irregularities. We specified accounting irregularities to include so-called  “aggressive” accounting practices, intentional and unintentional misuse of  facts applied to financial statements, oversight or misinterpretation of  accounting rules, and fraud. Also, we included each restatement, regardless  of its impact on the restating company’s financials, in our database.
However, we excluded restatement announcements that resulted from  normal corporate activity or simple presentation issues—unless there was  some irregularity involved. For example, we excluded financial statement  restatements resulting from mergers and acquisitions, discontinued  operations, stock splits, issuance of stock dividends, currency-related  issues (for example, converting from Canadian dollars to U.S. dollars),  changes in business segment definitions, changes due to transfers of  management, changes made for presentation purposes, general accounting  changes under generally accepted accounting principles (GAAP), litigation  settlements, and arithmetic and general bookkeeping errors. As a general  rule, we also excluded restatements resulting from accounting policy  changes. We excluded these financial statement restatements because  they did not necessarily reveal previously undisclosed, economically  meaningful data to market participants.
Once a relevant restatement was identified, we classified it into 1 or more  of 13 categories based on the information presented in the initial  restatement announcement and collected other relevant information. For  purposes of analysis, we further collapsed these 13 categories into 9  categories—(1) acquisition and merger related; (2) cost or expense related;  (3) in-process research and development related; (4) reclassification; (5) related-party transactions; (6) restructuring, assets, or inventory; (7) revenue recognition; (8) securities related; and (9) other. Our  classification closely resembles that employed by FEI and Wu (2001) and  HCG (2002). Finally, to determine characteristics of the companies  restating their financial reports, we collected information on market  capitalization values, total assets, and Standard Industrial Classification  codes for the restating companies we identified.
section_title: Determining the Impact of Financial Statement Restatements on Market Values of Restating Companies
paragraphs: To analyze the impact of restatement announcements involving accounting  irregularities on the stock market value of restating companies, we used  the standard event study approach. The event to be measured was the  initial announcement from January 1, 1997, to March 26, 2002, of a financial  statement restatement involving accounting irregularities by a publicly  traded company with common stock issued on the New York Stock  Exchange (NYSE), National Association of Securities Dealers Automated  Quotation (Nasdaq) National Market System or SmallCap venue, American  Stock Exchange (Amex), or the over-the-counter (OTC) bulletin board or  Pink Sheets. Throughout, we refer to the subset of companies with stock  traded on NYSE, Nasdaq, and Amex as “listed.” We obtained historical  stock price data for the relevant listed companies from NYSE’s Trade and  Quote (TAQ) database. This database contains detailed records of all quotes and transactions made for all NYSE, Nasdaq NMS and SmallCap,  and Amex issues.
Although we identified 919 restatement announcements from January 1,  1997, to June 30, 2002, we excluded some restatements from our analysis  for a number of reasons. First, we excluded restatements by companies  with stock traded on the OTC bulletin board or Pink Sheets because we did  not have access to reliable historical price data for these stocks. We  estimated that the exclusion of these unlisted companies would have a  negligible impact on our market capitalization results, as companies with  stock traded on the OTC bulletin board and Pink Sheets tend to be smaller  in terms of market capitalization, but it is not clear whether their exclusion  will introduce positive or negative bias in our average holding period  abnormal returns results. Secondly, we excluded initial restatement  announcements after March 26, 2002, the last trading day covered by our  TAQ data subscription that allowed us to perform the necessary  calculations for our analysis. Finally, we excluded from our analysis any  restatement by a company that had extensive portions of data missing  during the relevant time period around the restatement announcement.  Missing data were generally attributable to extended trading suspensions,  stock delistings, bankruptcies, and mergers. However, TAQ was also  missing data for several listed companies; thus, we excluded these  companies from our analysis. We cannot estimate the impact that these  exclusions would have on our reported results. To the extent a company’s  stock price declined following delisting, our analysis would be biased  toward understating the impact of financial statement restatement  announcements. To address these issues, we performed separate analyses  on subsets of these cases using alternative stock price data.
To determine the impact of the restatement announcement on a company’s  stock price, we identified the trading day that corresponded with the initial  announcement date. Although many companies announced their  restatements during or before normal trading hours on a trading day, others  publicly announced their financial statement restatement after the close of  trading or on a nontrading day. In these cases, we defined the  announcement day as the next trading day. We then identified the relevant  trading days before and after the restatement announcement, collectively  known as the event window. To analyze the immediate impact of financial  statement restatement announcements, we specified the immediate event  window as the period from the trading day before the announcement  through the trading day after the announcement. To analyze the longer-term  impact of restatement announcements, we also specified an intermediate  event window of approximately 6 calendar months, which included 60  trading days (3 months) before the announcement through 60 trading days  (3 months) after the announcement. ) in which Ait is the abnormal return of the stock of company i on date t, Rit is  the realized return of the stock of company i on date t, and E(Rit|X) is the  expected return of the stock of company i on date t conditioned on some  information set, X. We used the rate of return of the Wilshire Total Market  Index on date t as our conditioning information, X.
To calculate the abnormal return, we first specified a statistical model for  estimating the expected return of the stock of company i on date t. We used  a standard market model, which relates the rate of return of the stock of i  to the return of the overall market as in which ε it is an error term and α  and β are the parameters of the market  model. In this specification, α and β are the intercept and slope,  respectively, of the linear relationship between the return of the stock of  company i on date t and the return of the market on date t. The parameter,  β , is a measure of the covariation between the returns of the stock of i and  the returns of the market. In this way, the expected return is risk-adjusted,  taking into account the risk of stock i relative to the overall market. Next,  we estimated the parameters of the model using a subset of the data. This  subset, referred to as the “estimation window,” included approximately 120  trading days (typically about 6 calendar months) of daily closing price data  through the day prior to the initial restatement announcement. We  estimated the market model using the ordinary least squares estimation  procedure for each of the companies for which we had sufficient data. ) ) ) ) )
To measure the impact of the restatement announcement on the stock of  company i, we calculated the abnormal return over the holding period from  day –1 to day +1 to capture the immediate impact, and we calculated the  abnormal return over the holding period from day –60 to day +60 to capture  the intermediate impact. We also calculated the immediate impact on the  market capitalization of company i by multiplying the difference between  the actual stock price on day +1 and the expected price on day +1 (the  immediate market-adjusted change in price) by the number of shares  outstanding, and we calculated the intermediate impact on the market  capitalization of company i by multiplying the difference between the  actual stock price on day +60 and the expected price on day +60 (the  intermediate market-adjusted change in price) by the number of shares  outstanding. To assess the overall impact of the general event of a  restatement announcement, we averaged individual holding period  abnormal returns over all restatement announcement events in our sample  for both the immediate and intermediate time frames, and we summed all of the unadjusted and adjusted market changes in price for both the  immediate and intermediate time frames.
For the companies that dropped out of our sample from the immediate to  the intermediate event window due to trading suspensions, delistings,  bankruptcies, and mergers, among other reasons, we attempted to capture  the longer-term impact of their financial restatement announcements in a  separate analysis using unadjusted data. For each such company, we  identified its status approximately 3 months after its initial restatement  announcement using Lexis-Nexis and other sources—whether it was a  going concern, bankrupt, or merged with or was acquired by another  company. If a company were a going concern, we estimated its market  capitalization using publicly available data from Nasdaq or Pink Sheets and  SEC, and estimated the change in market value from 60 trading days before  the restatement announcement. If a company went bankrupt, we estimated  the loss in market capitalization by assuming a total loss. We did not  attempt to estimate the impact for a company that merged with or was  acquired by another company.
The usual interpretation of abnormal returns over an event window is that  they measure the impact of the event on the value of a company’s stock.  This interpretation may be misleading due to other firm-specific or market  factors. Our simple market model attempted to account for only the overall  market’s effect on the stock. One of the more relevant factors in this event  study was the simultaneous release of the restatement announcement and  scheduled financial statements to the market. For example, a company may  have issued its first quarter 2000 earnings that could have missed, met, or  exceeded the market’s expectations while also announcing that it was  restating previously issued financial statements from 1998 and 1999. To the  extent that this was an issue, our results could be biased in either direction  and, hence, attributing abnormal returns solely to the restatement  announcement could be misleading. Another potential factor is information  leakage. Events such as the announcement of an SEC inquiry, internal or  external accounting review, or abrupt departure of a company’s chief  executive officer or chief financial officer may be an early indication that a  financial restatement is forthcoming. Furthermore, it is important to note  that as we increase the time period over which we attempt to assess the  impact of the restatement on a particular stock, there can be many other  factors influencing the behavior of the stock price. To the extent that other  influences on the price are significant, our intermediate results reflect not  only the impact of the restatement announcement but these factors as well.
Additionally, there are potential sources of bias in our estimation  procedure. Some of the more important involve event-date uncertainty,  violations of our statistical assumptions, and using daily closing stock  prices. While our event study methodology assumes that we are able to  precisely identify the event date with certainty, this sometimes involved a  certain amount of judgment. The announcement of a financial statement  restatement typically only provides the date of the announcement; whether  the announcement was made before, during, or after trading on that date  may not be clear. Another possible source of bias stems from violation of  our standard statistical assumptions. A further potential source of bias in  our estimation involves using the daily closing prices of stocks. In the event  study framework, we implicitly assumed that these daily closing prices  were recorded at identical time intervals each day. However, this  assumption is easily violated because the last transaction for a given stock  can and generally does occur at a different time each day. Additionally,  some of the stocks in our event study were “thinly” or infrequently traded,  and several days could elapse between transactions. Referring to the last  recorded prices as daily closing prices assumed that closing prices are  equally spaced at 24-hour intervals, which is not the case. To the extent that  this assumption is violated, our results may be biased.
Overall, our analysis focused on the impact of a company’s restatement  announcement on its market capitalization. Therefore, we did not take into  account the effects on market participants with short positions or various  options positions, nor did we gauge the impact on the company’s  bondholders. To whatever extent—whether positively or negatively—these  market participants were affected by financial statement restatements, our  results are necessarily incomplete.
section_title: Determining the Impact of Financial Statement Restatements on Investor Confidence
paragraphs: To analyze impact of financial statement restatements on the confidence of  market participants, we relied principally on outside sources. Namely, we  identified indexes of investor confidence, located quantitative research on  the issue, conducted interviews with experts in the field and collected data  on mutual fund flows as a proxy for investor sentiment. The survey-based  indexes of investor confidence were obtained from UBS Americas, Inc.,  and the International Center for Finance at the Yale School of Management.  The Nobel Laureate economist, Dr. Lawrence Klein, acknowledged the UBS  Index for its accuracy and timeliness. The Yale School of Management  Indexes are considered to be the longest running effort to measure investor  confidence and the project is directed by one of the leading experts in the  field, Dr. Robert Shiller. We were also able to collect survey results about  the direct impact of restatements on investor confidence from UBS  Americas. Although the literature on the impact of restatements on  investor confidence is sparse, we identified two such studies. The results of  both studies were consistent with the hypothesis that investor confidence  has been negatively impacted by financial statement restatements.  However, we were not able to quote or cite one study, as the results were  preliminary at the time of this report’s issuance. To gain further insight, we  also interviewed some experts in the field and summarized their responses  to a set of questions regarding accounting practices, financial statement  restatements and investor confidence. Finally, we collected data on mutual  fund flows from the Investment Company Institute, a popular source for  statistical data on the mutual fund industry.
section_title: Analysis of SEC’s Accounting-Related Enforcement Activities
paragraphs: To analyze SEC enforcement actions involving accounting and auditing  irregularities, we reviewed 150 SEC-identified Accounting and Auditing  Enforcement Releases (AAER) issued from January 1, 2001, through  February 28, 2002. For these cases we identified the most common types of  accounting and auditing-related securities law violations, against whom  SEC enforcement actions have been brought recently, and the type of  penalties imposed by SEC. We defined “most common” as violations  constituting more than 20 percent of the total number of violations we  found in the 150 AAERs. Because multiple individual are often sanctioned,  we did not include all individual parties named in the AAER when  determining the frequency of a violation. For example, AAERs in which two  individuals were charged with the same securities violation, were counted  as one violation for purposes of analysis. We also collected other common  information disclosed in the AAERs such as the individuals and companies  charged in the cases and the sanctions levied. To describe the process that  SEC uses to develop an enforcement case, including whom to include as a  defendant in the case and penalties to assess, we used a variety of  information provided by SEC and interviews with officials from SEC’s  Divisions of Enforcement and Corporation Finance and Office of the  Chief Accountant. To obtain historical general enforcement and  accounting-related enforcement actions, we also used summary AAER  analysis done by SEC for fiscal years 1999 and 2000 and SEC annual  reports.
section_title: Collecting Information on Current and Proposed Accounting and Financial Reporting Oversight Structures
paragraphs: To describe the current regulatory, corporate and market approaches to  protecting investors and ensuring capital market integrity, we reviewed  relevant GAO reports and testimonies, SEC testimonies and speeches,  published articles, congressional hearings documents, and other available  information. We also interviewed various SEC officials and reviewed the  federal securities laws. To determine proposed regulatory approaches to  protect investors and ensure capital market integrity, we reviewed relevant  proposals from GAO, SEC, private self-regulatory bodies (e.g., NYSE),  Congress, academia, and others. To gain a better understanding of SEC’s  statutory authority to bring enforcement action against securities analysts  and credit rating agencies and any action taken against them, we  interviewed officials of SEC’s Divisions of Enforcement, Investment  Management, and Market Regulation; and we reviewed the federal  securities laws. To the extent possible, we determined the roles that key  players, such as auditors and company senior management played. We  selected 16 financial restatements for in-depth case study. The cases were  selected based on asset size, restatement period, percentage change in  earnings following the restatement, reason for the restatement, and market  where stock traded.
We did our work in Washington, D.C., between February and September  2002, in accordance with generally accepted government auditing  standards.
section_title: Comments from the Securities and Exchange Commission
section_title: Listing of Financial Statement Restatement Announcements, 1997-June 2002
paragraphs: American Business Information, Incorporated Arrhythmia Research Technology, Incorporated Arzan International (1991) Limited Ascent Entertainment Group, Incorporated Concorde Career Colleges, Incorporated First Colorado Bancorp, Incorporated First USA Paymentech, Incorporated Geographics, Incorporated In Home Health, Incorporated InPhyNet Medical Management, Incorporated International Nursing Services, Incorporated Molten Metal Technology, Incorporated National Health Enhancement Systems, Incorporated PennCorp Financial Group, Incorporated Physicians Laser Services, Incorporated Safe Alternatives Corporation of America, Incorporated Santa Anita Companies  Silicon Valley Research, Incorporated Summit Medical Systems, Incorporated System Software Associates, Incorporated Today's Man, Incorporated United Dental Care, Incorporated Universal Seismic Associates, Incorporated Wilshire Financial Services Group Incorporated COHR Incorporated Cross Medical Products, Incorporated Golden Bear Golf, Incorporated Integrated Sensor Solutions, Incorporated International Home Foods, Incorporated International Total Services, Incorporated Kyzen Corporation Lernout & Hauspie Speech Products N.V.
Norland Medical Systems, Incorporated Peritus Software Services, Incorporated Peritus Software Services, Incorporated Physician Computer Network, Incorporated Prosoft I-Net Solutions, Incorporated Telxon Corporation Total Renal Care Holdings, Incorporated Universal Seismic Associates, Incorporated Advanced Polymer Systems, Incorporated Aegis Communications Group, Incorporated Assisted Living Concepts, Incorporated Assisted Living Concepts, Incorporated Aztec Technology Partners, Incorporated Bausch & Lomb, Incorporated Blimpie International, Incorporated  Candence Design Systems, Incorporated Central Illinois Bancorp, Incorporated Colorado Casino Resorts, Incorporated Dassault Systemes S.A.
Financial Security Assurance Holdings Limited First Union Real Estate Equity and Mortgage Investments First Union Real Estate Equity and Mortgage Investments Forest City Enterprises, Incorporated Graham-Field Health Products, Incorporated Image Guided Technologies, Incorporated International Total Services, Incorporated MCN Energy Group, Incorporated MEMC Electronic Materials, Incorporated Motorcar Parts & Accessories, Incorporated National Auto Credit, Incorporated Pacific Aerospace & Electronics, Incorporated Pacific Research & Engineering Corporation PSS World Medical, Incorporated SafeGuard Health Enterprises, Incorporated Safety Components International, Incorporated Schick Technologies, Incorporated Signal Apparel Company, Incorporated The Sirena Apparel Group, Incorporated SS&C Technologies, Incorporated Sun Healthcare Group, Incorporated Total Renal Care Holdings, Incorporated 360 WellCare Management Group Incorporated 361 Western Resources, Incorporated Zions Bancorp Advanced Technical Products, Incorporated American Physicians Service Group, Incorporated Asche Transportation Services, Incorporated Aztec Technology Partners, Incorporated Bindley Western Industries, Incorporated  Bion Environmental Technologies, Incorporated BPI Packaging Technologies, Incorporated Castle Dental Centers, Incorporated Children's Comprehensive Services, Incorporated CIMA LABS Incorporated Computer Learning Centers, Incorporated Delphi Financial Group, Incorporated Dicom Imaging Systems, Incorporated EA Engineering, Science, and Technology, Incorporated EDAP TMS S.A.
First American Health Concepts, Incorporated First American Health Concepts, Incorporated Geographics, Incorporated Global Med Technologies, Incorporated Goody's Family Clothing, Incorporated Goody's Family Clothing, Incorporated Image Sensing Systems, Incorporated Information Management Associates, Incorporated International Total Services, Incorporated J. C. Penney Company, Incorporated Lernout & Hauspie Speech Products N.V.
Louis Dreyfus Natural Gas Corporation Magellan Health Services, Incorporated Monarch Investment Properties, Incorporated Network Systems International, Incorporated Pacific Gateway Exchange, Incorporated Plains All American Pipeline, L.P.
Precept Business Service, Incorporated Profit Recovery Group International, Incorporated Pulaski Financial Corporation RFS Hotel Investors, Incorporated SCB Computer Technology, Incorporated Today's Man, Incorporated Transport Corporation of America, Incorporated  TREEV, Incorporated 564 W.R. Grace & Company 565 Westmark Group Holdings, Incorporated 566 Whitney Information Network, Incorporated 567 Winnebago Industries, Incorporated 568 WorldWide Web NetworX Corporation The Ackerley Group, Incorporated Advanced Remote Communication Solutions Incorporated American Physicians Service Group, Incorporated Argosy Education Group, Incorporated ARI Network Services, Incorporated Avnet, Incorporated Centex Construction Products, Incorporated Century Business Services, Incorporated Cyber Merchants Exchange, Incorporated Daw Technologies, Incorporated Hayes Lemmerz International, Incorporated Health Care Property Investors, Incorporated Health Risk Management, Incorporated Herman Miller, Incorporated High Speed Net Solutions, Incorporated Industrial Distribution Group, Incorporated Integrated Measurement Systems, Incorporated J Jill Group, Incorporated Krispy Kreme Doughnuts, Incorporated Lands' End, Incorporated Manitowoc Company, Incorporated NCI Building Systems, Incorporated New England Business Service, Incorporated Orthodontic Centers of America, Incorporated Pre-Paid Legal Services, Incorporated Pre-Paid Legal Services, Incorporated Private Media Group, Incorporated PurchasePro.com, Incorporated Rare Medium Group, Incorporated Reader's Digest Association, Incorporated Robotic Vision Systems, Incorporated SCB Computer Technology, Incorporated SeaView Video Technology, Incorporated Shurgard Storage Centers, Incorporated Southwest Securities Group, Incorporated Stolt-Nielsen S.A.
Team Communications Group, Incorporated U.S. Aggregates, Incorporated Vical Incorporated 785 Wallace Computer Services, Incorporated 786 Warnaco Group, Incorporated 787 Warnaco Group, Incorporated 788 Webb Interactive Services, Incorporated 790 Westfield America, Incorporated 792 Williams Controls, Incorporated 793 Woodhead Industries, Incorporated Advanced Remote Communication Solutions Incorporated American Physicians Service Group, Incorporated Barrett Business Services, Incorporated Computer Associates International, Incorporated Eagle Building Technologies, Incorporated EOTT Energy Partners, L.P.
FFP Marketing Company, Incorporated FiberNet Telecom Group, Incorporated Gemstar-TV Guide International, Incorporated Great Pee Dee Bancorp, Incorporated Hub Group, Incorporated Key Production Company, Incorporated Metromedia Fiber Network, Incorporated The PNC Financial Services Group, Incorporated The PNC Financial Services Group, Incorporated Qiao Xing Universal Telephone, Incorporated Raining Data Corporation SeaView Video Technology, Incorporated Sybron Dental Specialties, Incorporated The Hain Celestial Group, Incorporated United Pan-Europe Communications N.V.
section_title: Case Study Overview
paragraphs: Our objective in reviewing individual restatements was to provide detailed  information on selected areas for 16 companies.  The purpose of this  appendix is to explain how each case study is structured and what  information is being provided. Specifically, each of the cases discussed in  appendixes V through XX provides information on (1) the company’s  operations; (2) the chronology of the restatement, including who initiated  the restatement; (3) the company’s independent auditor; (4) the market’s  reaction to the restatement; (5) securities analysts’ recommendations; (6)  the relevant credit ratings of the company’s debts; and (7) legal and/or  regulatory actions taken against the company, its executives, directors,  independent auditors or others.  The 16 companies are listed in table 8.
Our analysis was based on only publicly available information, including  company press releases and filings with the Securities and Exchange  Commission (SEC) (for example, Forms 10-K, 10-Q, and 8-K); SEC press  releases, complaints, and settlement agreements; public Department of  Justice documents; analysts’ recommendations; credit agency ratings;  historical company rating information maintained by research sources;  newspaper articles; and congressional testimonies. Although we did not  interview the company officials to obtain information about the  restatements, we requested comments on the case studies from each of the  16 companies and incorporated any technical comments received, as  appropriate.
subsections: section_title: Business Overview
paragraphs: Each case begins with an overview of the business in which the company  engages and generally provides information on its size (total revenue) and  number of employees.
section_title: Restatement Data
paragraphs: Each of the companies restated its financial statements at least once from  1997 to 2002, and this section discusses the nature of the misstated  information and the resulting restatement decision by the company’s  management. We also included previously reported or announced financial  results and the revised or restated financial data for selected information  such as revenue and net income (losses). Finally, we also identified those  companies that announced a restatement but have not yet filed restated  financial statements with SEC.
section_title: Accounting/Auditing Firm
paragraphs: This section provides information on the independent auditor of record  during the restatement period and whether the restating company changed  its auditor before, during, or after the restatement. We also provide  information on civil and criminal actions taken against the auditors.
section_title: Stock Prices
paragraphs: To illustrate the impact of a restatement announcement on a company’s  stock price, we provide selected historical closing stock price information  for each company. We also discuss how stock prices were impacted in the  days surrounding the restatement announcement and discuss other events  that may have positively or adversely impacted the company’s stock price.  In many of the cases, the company had lost a significant amount of its stock  value before the restatement announcement. Often it had already missed  an earnings target or announced an internal investigation.
section_title: Securities Analysts’ Recommendations
paragraphs: Given the criticism that many securities analysts have faced about their  optimistic ratings of companies in the face of adverse financial results and  condition, we were asked to focus on the role played by analysts in  recommending securities. Therefore, in this section we provide historical  information on securities analysts’ ratings in the months leading up to and  after financial statement restatements and other announcements about the  financial condition of the covered (researched) company. We found no  single authoritative source for historical analyst recommendations and  relied on a variety of sources for this data such as Yahoo!Finance and  CNET Investor.
Analysts use different rating systems and a variety of terms, including  strong buy, buy, near-term or long-term accumulate, near-term or long-term  over-perform or under-perform, neutral, hold, reduce, sell, and strong sell.  Critics often point to the large disparity between analysts’ buy  recommendations and sell recommendations (the latter made up less than  2 percent in 2000). However, the terms have been criticized as being  misleading because “hold” may mean that investors should sell the stock  versus holding it. Although we do not attempt to determine the definition of  each term for each firm, we provide the recommendations because they  illustrate the range of rating systems that analysts use. We generally  focused on changes in ratings around certain key dates to provide some  indication of what signals analysts were sending to the markets.
section_title: Credit Rating Agency Actions Taken
paragraphs: Like analysts, credit rating agencies have been questioned about the quality  of the information they provide, and this scrutiny heightened after the rapid  failure of Enron. To determine the information credit rating agencies were  providing to the market about the condition of these companies, we  collected credit rating information on companies when such information  was available. Once again we focused on changes in ratings around certain  key dates, such as the restatement announcement date, the actual  restatement date, and announcements of internal investigations, and  bankruptcy filings.
section_title: Legal and Regulatory Actions Taken
paragraphs: To determine the legal and regulatory actions taken, we searched for  evidence of any lawsuits and whether SEC and or the Department of  Justice had taken any action in connection with the restatement of a  company’s financial results. We found that many of the cases led to  shareholder lawsuits and that SEC and in some cases the Department of  Justice had taken action against the company, its officials, and its  independent auditor.
section_title: Adelphia Communications Corporation
subsections: section_title: Business Overview
paragraphs: Adelphia Communications Corporation (Adelphia) provides entertainment  and communication services, including high-speed Internet services, cable  entertainment, digital cable, long distance telephone services, home  security, and messaging. Telecommunications services and equipment  accounted for 77 percent of 2000 revenues; advertising and other services,  14 percent; and premium programming, 9 percent.
In June 2002, Adelphia and more than 200 of its subsidiaries and  partnerships and joint ventures in which it holds at least 50 percent  ownership interest filed for Chapter 11 bankruptcy protection under the  federal bankruptcy code.
section_title: Restatement Data
paragraphs: On March 27, 2002, Adelphia announced its fourth quarter and 2001 results  of operations, which included for the first time, the existence of certain  previously unreported off-balance sheet liabilities. According to company  and Securities and Exchange Commission (SEC or Commission)  documents, in March 2002, Adelphia’s board of directors appointed a  Special Committee of Independent Directors (Special Committee) to  review business relationships between the company and certain affiliates.  As part of that review, the Special Committee identified accounting and  disclosure issues, some of which raised questions about whether the  company’s management had engaged in improper activities. Based on the  preliminary results of the investigation, management of the company  decided to make certain adjustments to (1) its results of operations for  2000 and 2001, (2) its guidance with respect to management’s earnings  expectations for 2002, and (3) certain previous public statements regarding  the number of subscribers to the company’s cable television systems.
On May 2, 2002, Adelphia announced that it had reached a tentative  conclusion regarding the accounting treatment of certain “co-borrowing”  agreements, which Adelphia expects to result in the restatement of its  previously issued financial statements for 1999, 2000, and interim financial  statements for 2001 (table 9). The tentative conclusions are subject to the  completion of its annual audit. However, the company estimated that the  restatement would increase by about $2.6 billion, as of December 31, 2001,  to reflect the full amount of principal borrowings by certain co-borrowing  arrangements for which subsidiaries of the company are jointly and  severally liable.
Current management took control in May 2002 and has retained new  independent auditors and begun the preparation of new financial  statements. According to Adelphia’s August 20, 2002, amended Form 8-K  filed with SEC, the company has not filed its quarterly or annual filings with  SEC but still expects to restate its financial statements for the years ended  December 31, 1999, and 2000, and its interim financial statements for 2001  and possibly other periods. In addition, current management believes that  the public information provided by prior management on other matters of  interest to investors, such as the percentage of the company’s cable  television systems that the company believes have been upgraded to  current standards, was unreliable. As a result, the company anticipates that  it may have to supplement the financial and certain other information and  that such supplemental information may be material.
Accounting/Audit Firm Deloitte & Touche LLP (Deloitte) was the independent auditor during the  relevant period. According to Adelphia’s filing with SEC, on May 14, 2002,  Deloitte advised Adelphia that it had suspended its audit of the financial  statements of the company for the year ended December 31, 2001.  According to Adelphia’s Form 8-K (amendment no. 3), Deloitte’s 1999 and  2000 reports on Adelphia’s financial statements contained no adverse  opinion or disclaimer of opinion and were not qualified or modified as to  uncertainty, audit scope or accounting principles. However, according to  SEC’s complaint against Adelphia and certain individuals, Deloitte had  advised Adelphia to disclose the existence of several off-balance-sheet  liabilities in a footnote disclosure but relented when management did not  accept the advice. On June 9, 2002, Adelphia terminated Deloitte as its  independent auditor. On June 13, 2002, the company retained  PricewaterhouseCoopers LLP (PwC) as its new independent accountant.  As of August 20, 2002, PwC was still in the process of completing its audit  of Adelphia.
section_title: Stock Price
paragraphs: The company’s common stock was traded on the National Association of  Securities Dealers Automated Quotation (Nasdaq) under the ticker symbol  ADLAC. On April 18, 2002, Adelphia announced that it received a Nasdaq  Staff Determination Letter on April 17, 2002, indicating that it did not  comply with Marketplace Rule 4310(c)(14) for failing to timely file with the  SEC its annual report on Form 10-K for the year ended December 31, 2001.  Accordingly, its securities were subject to delisting from the Nasdaq Stock  Market. Nasdaq suspended trading in Adelphia’s shares on May 14, 2002,  and subsequently delisted Adelphia’s stock on June 3, 2002. The company  now trades over-the-counter under the ticker symbol ADELQ. Although we  were unable to compile comprehensive daily stock price information for  Adelphia after trading in its stock was suspended on Nasdaq, we found in  the days surrounding Adelphia’s March 26, 2002, announcement of its  fourth quarter and year end 2001 results, which included previously  unreported off-balance sheet liabilities, the price of Adelphia’s stock fell  over 20 percent from a closing price of $20.39 per share before the  announcement to $14.90 the day after the announcement (fig.12). It stock  continued to trend downward in April and by May 1, 2002, the day before  Adelphia announced that it would likely restate its financial statements for  2000 and 2001, its stock price fell almost 13 percent from $6.95 the day  before to $6.05 the day after.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on historically available securities analysts’ recommendations we  were able to identify around the time of Adelphia’s restatement  announcement and discovery of widespread problems, we found  information on three firms that researched the company. All three firms  lowered their recommendations during May 2002 following Adelphia’s  announcement of restatement and tentative restated results. Only one of  the three recommended avoiding the stock, another recommended holding  it, and the last firm rated Adelphia as underweight.
section_title: Credit Rating Agency Actions
paragraphs: Adelphia’s debt is rated by Moody’s Investors Service, Inc. (Moody’s) and  Standard and Poor’s. On January 22, 2002, Moody’s announced that it had  concluded its review of Adelphia and confirmed its bond ratings, and rated  the company’s outlook as stable. On March 27, 2002, the day Adelphia  announced its 2001 results, which included information on off-balance  sheet debt that had not previously been reported, Moody’s announced that  it had initiated a review of Adelphia and that its ratings remained under  review for a possible downgrade. On April 8, and again on April 22, 2002,  Standard and Poor’s downgraded Adelphia’s debt. On May 6, 2002,  following its announcement of changes in certain accounting practices and  the likely restatement of its 1999, 2000, and interim 2001 financial reports,  Moody’s downgraded Adelphia’s ratings and stated that they remained  under review for further downgrade. On May 15, 2002, the date Adelphia  announced that it had failed to make interest payments on outstanding debt  securities and certain preferred stock, Moody’s and Standard and Poor’s  downgraded Adelphia further and Moody’s kept it under review for  possible additional downgrades. On May 20, 2002, Standard and Poor’s  downgraded the debt even further, indicating that Adelphia had failed to  pay at least one or more of its financial obligations when it came due. On  June 5, 2002, Moody’s issued an opinion update and adjusted its ratings of  Adelphia to reflect recovery values pending the expected bankruptcy filing,  which was subsequently filed on June 25.
section_title: Legal and Regulatory Actions Taken
paragraphs: More than two dozen shareholder class-action lawsuits have been filed  against Adelphia, alleging that the Rigas family violated Section 10(b) and  20(a) of the Securities Exchange Act of 1934 (Exchange Act), by issuing  materially false and misleading statements and omitting material  information regarding the company and its business operations. For  example, as alleged in the complaint, defendants concealed borrowings,  understated the company’s debt levels, and failed to adequately disclose  the existence of billions of dollars of off-balance sheet debt.
On June 24, 2002, Adelphia announced that it had filed suit against John  Rigas, the Company’s founder and former chairman; his sons—Tim,  Michael, and James Rigas—who are former board members and company  executives; Peter Venetis his son-in-law, who was a member of the board at  the company; James Brown, former vice president of finance, and Michael  Mulcahey, former assistant treasurer. Also named in the lawsuit were Doris  Rigas, wife of John Rigas; Ellen Rigas Venetis, daughter of John Rigas; and  20 companies controlled by the family. The lawsuit charges the defendants  with violation of the Racketeer Influenced and Corrupt Organizations  (RICO) Act, breach of fiduciary duties, waste of corporate assets, abuse of  control, breach of contract, unjust enrichment, fraudulent conveyance, and  conversion of corporate assets.
On June 25, 2002, Adelphia and more than 200 of its subsidiaries and  partnerships and joint ventures in which it holds at least 50 percent  ownership interest collectively filed voluntary petitions under Chapter 11  of the U.S. Bankruptcy Code with the U.S. Bankruptcy Court for the  Southern District of New York.
On July 24, 2002, SEC filed suit in the U.S. District Court for the Southern  District of New York charging Adelphia and several individuals “in one of  the most extensive financial frauds ever to take place at a public company.”  The complaint alleges that between mid-1999 and the end of 2001, Adelphia  fraudulently excluded from its annual and quarterly consolidated financial  statements over $2 billion in debt by systematically recording those  liabilities on the books of unconsolidated affiliates, which violated  generally accepted accounting principles (GAAP).
Adelphia, at the direction of the individual defendants: (1) fraudulently  excluded billions of dollars in liabilities from its consolidated financial  statements by hiding them in off-balance sheet affiliates; (2) falsified  operation statistics and inflated Adelphia’s earnings to meet Wall  Street’s expectations; and (3) concealed rampant self-dealing by the  Rigas family, including the undisclosed use of corporate funds for Rigas  family stock purchases and the acquisition of luxury condominiums in  New York and elsewhere. Section 17(a) of the Securities Act of 1933  (Securities Act), 15 U.S.C. § 77q(a), Sections 10(b), 13(a), 13(b)(2)(A)  and 13(b)(2)(B) of the Exchange Act, 15 U.S.C. §§ 78j(b), 78m(a),  78m(b)(2)(A) and 78m(b)(2)(B), and Rules 10b-5, 12b-20, 13a-1, and  13a-13, 17 C.F.R. §§ 240.10b-5, 240.12b-20, 240.13a-1, and 240.13a-13.
In addition to Adelphia, the complaint charges several individuals with  numerous securities law violations. Specifically, the Commission’s  complaint alleges as follows:   Between mid-1999 and the end of 2001, John J. Rigas, the founder, chief  executive officer, and chairman of the board until May 15, 2002; Timothy  J. Rigas, chief financial officer, chief accounting officer, treasurer, and  board director until May 16, 2002; Michael J. Rigas, executive vice  president for operations and secretary until May 23, 2002; James P.  Rigas, vice president for strategic planning until May 23, 2002; and  James R. Brown, vice president of finance until May 19, 2002; with the  assistance of Michael C. Mulcahey, vice president and assistant  treasurer, caused Adelphia to fraudulently exclude from the company’s  annual and quarterly consolidated financial statements over $2.3 billion  in bank debt by deliberately shifting those liabilities onto the books of  Adelphia’s off-balance sheet, unconsolidated affiliates. Failure to record  this debt violated GAAP requirements and laid the foundation for a  series of misrepresentations about those liabilities by Adelphia and the  defendants, including the creation of (1) sham transactions backed by  fictitious documents to give the false appearance that Adelphia had  actually repaid debts when, in truth, it had simply shifted them to  unconsolidated Rigas-controlled entities and (2) misleading financial  statements by giving the false impression through the use of footnotes  that liabilities listed in the company’s financials included all outstanding  bank debt.
Timothy J. Rigas, Michael J. Rigas, and James R. Brown made repeated  misstatements in press releases, earnings reports, and Commission  filings about Adelphia’s performance in the cable industry, by inflating  (1) Adelphia’s basic cable subscriber numbers; (2) the extent of  Adelphia’s cable plant “rebuild” or upgrade; and (3) Adelphia’s earnings,  including its net income and quarterly EBTIDA. Each of these  represents key “metrics” by which Wall Street evaluates cable  companies.
Since at least 1998, Adelphia, through the Rigas family and Mr. Brown,  made fraudulent misrepresentations and omissions of material fact to  conceal extensive self-dealing by the Rigas family. Such self-dealing  included the use of Adelphia funds to finance undisclosed open market  stock purchases by the Rigas family, purchase timber rights to land in  Pennsylvania, construct a golf club for $12.8 million, pay off personal  margin loans and other Rigas family debts, and purchase luxury  condominiums in Colorado, Mexico, and New York City for the Rigas  family.
The Commission alleges that the defendants continued their fraud even  after Adelphia acknowledged, on March 27, 2002, that it had excluded  several billion dollars in liabilities from its balance sheet. The defendants  allegedly covered-up their conduct and secretly diverted $174 million in  Adelphia funds to pay personal margin loans of Rigas family members.
SEC seeks a final judgment ordering the defendants to account for and  disgorge all ill-gotten gains including all compensation received during the  fraud, all property unlawfully taken from Adelphia through undisclosed  related-party transactions, and any severance payments related to their  resignations from Adelphia. SEC also seeks civil penalties from each  defendant; and further, SEC seeks an order barring each of the individual  defendants from acting as an officer or director of a public company.
In conjunction with these civil charges, John Rigas, Timothy Rigas, and  Michael Rigas were arrested on federal criminal charges of conspiracy and  securities fraud, wire fraud, and bank fraud. Mr. Brown, Adelphia’s former  vice president of finance and Mr. Mulcahy, the former director of internal  reporting, were also arrested on the same charges. All five were indicted by  a federal grand jury on September 23, 2002. According to press reports,  prosecutors may file charges against other former Adelphia officials.
section_title: Aurora Foods Inc.
subsections: section_title: Business Overview
paragraphs: Aurora Foods Inc. (Aurora) is a producer and marketer of  branded food. It  was incorporated in 1998 as the successor to Aurora Foods Holdings, Inc.,  and its subsidiary AurFoods Operating Company, Inc. Aurora’s brands  include Duncan Hines, Mrs. Butterworth, Log Cabin, Van de Kamp’s, Mrs.  Paul’s, Aunt Jemina, Celeste, Chef’s Choice, and Lender’s. Its brands are  grouped into two general divisions: the dry grocery division and the frozen  food division. As of December 31, 2001, the company had net sales of over  $1 billion, and as of February 28, 2002, it had about 2,000 employees.
section_title: Restatement Data
paragraphs: During the end of year 1999 audit, Aurora’s independent auditor,  PricewaterhouseCoopers LLP (PwC), discovered documents that raised  questions about the company’s accounting practices and informed the audit  committee of the board of directors of its findings on February 9, 2000. Two  days later, Aurora’s board of directors, after discussion with its auditors,  formed a special committee to conduct an investigation into the company’s  application of certain accounting policies. The special committee retained  legal counsel (Ropes & Gray), which hired an independent accounting firm  (Deloitte & Touche LLP) to assist in the investigation. Through its  investigation, the independent auditor determined that liabilities that  existed for certain trade promotion and marketing activities and other  expenses (primarily sales returns and allowances, distribution and  consumer marketing) were not properly recognized as liabilities and that  certain assets were overstated (primarily accounts receivable, inventories,  and fixed assets). On February 17, 2000, several members of senior  management resigned including the chairman and chief executive officer  (CEO), the vice chairman, and chief financial officer (CFO).
On April 3, 2000, Aurora announced restatements of earnings for 1999 and  1998. Specifically, previously reported pretax earnings would be reduced  by $43.3 million for the first three quarters of 1999 and by $38.3 million for  the third and fourth quarters of 1998 (table 10).
Aurora also announced the appointment of a new president and executive  vice president, both of whom were to join the company’s board of  directors.
Accounting/Audit Firm Aurora’s independent auditor in 1999 was PwC, which audited Aurora’s  most recent annual financial statements to date.
section_title: Stock Price
paragraphs: Aurora’s stock trades on the New York Stock Exchange (NYSE) under the  ticker symbol AOR. Prior to its restatement, from November 22, 1999, to  November 24, 1999, Aurora’s stock price fell over 26 percent on the news  that its fourth quarter earnings would be hurt by lower profits from one of  its operations and higher interest expense. On February 1, 2000, Aurora’s  stock price closed at $8.94. In the days surrounding the February 11, 2000,  creation of a special committee to conduct an investigation into the  company’s accounting practices, Aurora’s stock price fell over 10 percent  to $7.06. However, Aurora’s stock fell over 50 percent from February 17 to  February 22, 2000, following the announcement that it was investigating its  financial practices and that several members of its senior management  team had resigned. Aurora’s stock price remained volatile and trended  downward, closing at $3.00 on March 31, 2000 (see fig. 13). On April 3, 2000,  the day that Aurora restated its financial statements, the stock price closed  at $3.375, up over 12 percent. The stock price moved up over 18 percent on  April 4 to close at $4.00 per share. Over the three trading days from March  31 through April 4, Aurora’s stock price increased over 30 percent. The  stock generally traded between $3 and $5 for the next several months.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on historical securities analyst recommendations that we were able  to identify, we found historical analyst recommendations from four firms  that covered Aurora. According to one publicly available history of analyst  ratings, recommendations for Aurora varied from buy to market perform,  depending on the analyst. In November 1999, three firms downgraded their  recommendations on the news that Aurora expected its fourth quarter  results to be adversely impacted by certain operations and expenses.  However, none of them recommended a sell. In February 2000, following  news of a delay in filing its financial reports with the Securities and  Exchange Commission (SEC or Commission) and the resignation of several  members of senior management (over a month before the restatement  announcement), one analyst upgraded his recommendation from market  perform to buy, while another analyst downgraded his buy  recommendation to a market perform.
section_title: Credit Rating Agency Actions
paragraphs: Aurora’s debt is rated by Moody’s Investors’ Service, Inc. (Moody’s). On  April 3, 2000, the date of the restatement announcement, Aurora’s  corporate bond rating indicated that conditions may have existed that  indicate the inability of the company to pay principal or interest on the  obligations. This rating was confirmed in May 2000. On February 9, 2001,  Moody’s confirmed Aurora’s rating for senior secured credit facility, a mid- range rating indicating that the company’s obligations generally lack the  characteristics of desirable investments. According to this rating, payment  of principal and interest or maintenance of other contract terms over a long  period was in doubt. Although at the higher end of the low-grade rating  category, Aurora’s senior subordinated note rating indicated that there  potentially were conditions hampering the ability of the company to pay  principal or interest on its obligations.
section_title: Legal and Regulatory Actions Taken
paragraphs: Aurora was subject to shareholder lawsuits and regulatory action related to  its accounting practices. As of April 13, 2000, Aurora had been served with  13 complaints in class-action lawsuits in the U.S. District Court for the  Northern District of California. The complaints alleged, among other  things, that as a result of accounting irregularities, the company’s  previously issued financial statements were materially false and misleading  and thus constituted violations of federal securities laws. The complaints  sought damages in unspecified amounts and were brought on behalf of  purchasers of the common stock during various periods, all of which fell  between October 28, 1998, and February 18, 2000.
According to company filings, on January 16, 2001, Aurora reached a  preliminary agreement to settle the securities class-action and derivative  lawsuits pending against the company and its former management team.
Under the terms of the agreement, Aurora will pay the class members $26  million in cash and $10 million in common stock of the company. On March  2, 2001, the company entered into definitive agreements with certain  members of former management to transfer to the company between  approximately 3 million and 3.6 million shares of common stock of the  company, in consideration for a resolution of any civil claims that the  company may have had, and partially conditioned upon future events and  circumstances. The cash component of the settlement was to be funded  entirely by the company’s insurance. As of March 23, 2001, with respect to  the common stock component of the settlement, the stock received from  former management would be sufficient, at current share prices, to satisfy  Aurora’s obligation without issuing additional shares. The actual number of  shares of common stock of the company needed to fund this component  was to be based on average share prices determined at later dates.  However, members of the class have the opportunity to opt out of the  settlement agreement, and bring separate claims against the company. In  addition, the company has agreed to continue to implement certain  remedial measures, including the adoption of an audit committee charter,  the reorganization of the company’s finance department, the establishment  of an internal audit function and the institution of a compliance program,  as consideration for resolution of the derivative litigation.
According to company filings within SEC, the staff of SEC and the U.S.  Attorney for the Southern District of New York also initiated investigations  relating to the events that resulted in the restatement of the company’s  financial statements for prior periods. SEC and the U.S. Attorney requested  that the company provide certain documents relating to the company’s  historical financial statements. On September 5, 2000, the company  received a subpoena from SEC to produce documents in connection with  the restatements. SEC also requested certain information regarding some  of the company’s former officers and employees, correspondence with the  company’s auditors and documents related to financial statements,  accounting policies, and certain transactions and business arrangements.
On January 23, 2001, the U.S. Attorney announced indictments alleging  financial accounting fraud against members of former management and  certain former employees of Aurora. Subsequently, three senior officials  and one division official pled guilty to the charges. The U.S. Attorney did  not bring charges against Aurora. In a cooperation agreement with the U.S.  Attorney, Aurora confirmed that it would continue to implement an  extensive compliance program, which will include an internal audit  function, a corporate code of conduct, a comprehensive policies and  procedures manual, employee training and education on policies and  procedures, and adequate disciplinary mechanisms for violations of  policies and procedures. According to an Aurora official and various press  reports, in 2002, Ms. Laurie Cummings, the former CFO, was sentenced to  57 months imprisonment. Other officials are scheduled to be sentenced  later this year.
In addition, Aurora consented to the entry of an order by SEC requiring  compliance with requirements for accurate and timely reporting of  quarterly and annual financial results, and the maintenance of internal  control procedures in connection with a civil action by SEC concerning  accounting irregularities at the company in 1998 and 1999. Aurora neither  admitted nor denied any wrongdoing, and SEC did not seek any monetary  penalty. Aurora also committed to continue to cooperate with SEC in  connection with its actions against certain former members of  management and former employees.
According to SEC’s January 23, 2001, press release, SEC also brought  securities fraud charges against three former senior officers and four  employees of Aurora, in connection with a scheme that caused Aurora to  underreport trade marketing expenses and substantially inflate reported  earnings in 1998 and 1999. In addition, another former employee was  charged with corporate reporting and recordkeeping violations. SEC also  announced that it had simultaneously settled the charges against two of the  individuals.
The complaint alleges that Aurora’s senior management, consisting of Ian  R. Wilson, chairman of the board of directors and CEO of Aurora, from  June 1998 until he resigned on February 17, 2000; Ms. Laurie Cummings,  CFO of Aurora, from June 1998 until she resigned on February 17, 2000; and  Ray Chung, executive vice president of Aurora, from June 1998 until he  resigned on February 17, 2000, were aware that Aurora was not accurately  reporting trade marketing expense, which is the expense Aurora incurs to  induce grocery stores to purchase its products. (For example, a case  discount or other similar incentive.) Instead of properly booking the  expense, Mr. Wilson, Ms. Cummings, and Mr. Chung allegedly tried to  conceal it from the auditors by directing division level officers and  employees to make false entries in various accounts on the company’s  books. The effect was to falsely and substantially inflate the Aurora’s  financial results. The complaint states that the result was to materially  understate expenses and liabilities on the company’s publicly filed financial  statements. The object of the scheme was to conceal from the investing  public the fact that the company had not met its earnings targets from  quarter to quarter.
The scheme allegedly involved several other employees, including Dirk  Grizzle, vice-president of finance and principal financial officer of Aurora’s  Foods division (AFI) until June 2000. The complaint described the  following events. Sometime in March 1999, Mr. Grizzle and Ms. Cummings  discussed putting known trade promotion expenses in accounts receivable,  rather than simply recording them on Aurora’s books. The effect would be  to conceal these expenses from the auditors. Thereafter, on a regular basis,  Ms. Cummings and/or Mr. Chung instructed Mr. Grizzle to move large  portions of the expense to accounts receivable. Mr. Grizzle carried out  these instructions by directing Tammy Fancelli, a senior financial analyst at  AFI until September 2000, and James Elliott, the manager of customer  financial services at AFI until September 2000, to make false entries in the  accounts receivable ledgers and subsidiary ledgers. Beginning in about  April 1999, Mr. Grizzle also prepared, at least quarterly, two versions of  AFI’s trade promotions reserve analysis, one for the company’s internal  use, which showed an ever-growing trade underaccrual, consisting  primarily of items of actual, known expense, and the others to be provided  to the auditors, which falsely showed an overaccrued position.
The complaint also alleges that at another of the company’s divisions,  Timothy B. Andersen, the vice-president of finance and principal financial  officer at Aurora’s Van de Kamp’s division (VDK) until June 2000, carried  out Ms. Cummings’s and Mr. Chung’s instructions to reduce expenses on  the books to enable Aurora to hit “must make” numbers on a quarterly or  more frequent basis. In almost every instance, in order to hit these earnings  targets, Mr. Andersen reduced trade promotion expense and the  accompanying trade promotion accrual, even though he knew that the  division had already recorded insufficient trade expense and had under- accrued the trade promotion reserve.
According to the SEC complaint, Mr. Andersen allegedly accomplished this  by directing VDK’s director of budget and planning to reduce the trade  promotion accrual. Because the division’s computers automatically posted  accruals to the reserve account as sales were posted, the automated entries  had to be adjusted manually. However, the complaint alleges that Ms.  Cummings eventually became concerned that these manual entries would  draw audit scrutiny and directed Mr. Andersen to turn off the automated  posting system. Thereafter, all accruals were posted by hand at the levels  dictated by Ms. Cummings.
The complaint alleges that Ms. Cummings directed VDK’s director of  budgeting and planning to prepare for the auditors a version of the trade  reserve analysis employing incorrect assumptions, which, had they been  disclosed, would have immediately revealed the inadequacy of the  accruals. Mr. Keith Luechtefeld, the controller at Aurora’s VDK division  until June 2000, was aware of these deliberate underaccruals, and on at  least one occasion, carried out Mr. Andersen’s instruction to conceal the  underaccruals by shifting $2 million from other liability accounts on VDK’s  books to the trade promotion reserve. These entries had no purpose other  than to make it appear to the auditors that the accrual was adequate, when,  in fact, it was not.
Allegedly, throughout 1999, division officers at both AFI and VDK regularly  informed Aurora CEO, Mr. Wilson, of the substantial trade accrual deficit,  but Mr. Wilson refused to take action to correct the problem and, from time  to time, noted his concurrence in actions directed by his subordinates Ms.  Cummings and Mr. Chung to conceal the underaccrual. The complaint  alleges that Mr. Wilson also made several public statements in 1999  concerning the company’s financial condition, which failed to disclose the  substantial unrecorded trade marketing expense. By January 2000, Mr.  Wilson allegedly actively participated in efforts to conceal the false  accounting entries from the auditors and personally directed division  employees to lie to the auditors.
Finally, SEC alleges that, as a result, Mr. Wilson, Mr. Chung, Ms. Cummings,  Mr.Grizzle, Ms. Fancelli, Mr. Andersen and Mr. Luechtefeld violated, or  aided and abetted violations of, Section 10(b) of the Securities Exchange  Act of 1934 (Exchange Act), and Rule 10b-5; that all of the individual  defendants violated Section 13(b)(5) of the Exchange Act and Rule 13b2-1  in connection with a financial reporting fraud involving Aurora; that Mr.  Wilson, Mr. Chung and Ms. Cummings also violated Rule 13b2-2  promulgated under the Exchange Act; that Aurora violated Sections 13(a)  and 13(b)(2) of the Exchange Act and Rules 12b-20, 13a-1, and 13a-13; and  that Mr. Wilson, Mr. Chung and Ms. Cummings, as control persons of  Aurora, are liable for Aurora’s violations of Sections 13(a) and 13(b)(2) of  the Exchange Act and Rules 12b-20 and 13a-13.
The Commission sought a final judgment (1) permanently enjoining each  defendant from future violations of the securities laws; (2) ordering Mr.  Wilson, Mr. Chung, Ms. Cummings and Mr. Grizzle to disgorge performance  bonuses paid to them on the basis of materially overstated earnings, plus  prejudgment interest; (3) imposing civil penalties against each defendant  (except Aurora); and (4) barring Mr. Wilson, Mr. Chung, Ms. Cummings, and  Mr. Grizzle from serving as an officer or director of a public company.
The company has consented to a permanent injunction from further  violations of the reporting and internal control provisions of the federal  securities laws. In addition, Ms. Fancelli consented to a permanent  injunction from further violations of the antifraud and reporting and  internal control provisions of the federal securities laws that ordered her to  pay a civil penalty in the amount of $20,000. Likewise, Mr. Elliott consented  to a permanent injunction from further violations of the reporting and  internal control provisions of the federal securities laws that ordered him  to pay a civil penalty in the amount of $10,000. To date, the remaining  litigation is pending in the U. S. District Court for the Southern District of  New York.
section_title: Critical Path, Inc.
subsections: section_title: Business Overview
paragraphs: Critical Path, Inc. (Critical Path), founded in 1997, provides Internet  messaging and infrastructure products and services. The company  provides messaging and collaboration services on an outsource basis,  including wireless, secure, and unified messaging to basic E-mail and  personal information management, and other identity management  solutions that simplify user profile management and strengthen  information security. Critical Path’s customers include more than 700  enterprises, 190 carriers and service providers, 8 national postal  authorities, and 35 government agencies. Its primary sources of revenue  include providing a wide range of messaging and directory products and  services. As of June 30, 2001, it had 784 employees down from 1,041 year- end 2000. For the year ended December 2000 and 2001, Critical Path had  assets totaling $498 million and $200 million, respectively.
section_title: Restatement Data
paragraphs: In 1999, Critical Path reported revenue of $16.1 million. For the first quarter  of 2000, it reported revenue of $24.6 million. During the next quarter  revenue increased to $33.5 million, beating analysts’ revenue estimates by  about $6 million. The company reported a net loss, excluding special  charges, for the second quarter of $20.2 million but again beat consensus  earnings per share estimates. Critical Path’s chief executive officer (CEO)  announced second quarter results on July 19, 2000, and predicted that for  the fourth quarter Critical Path would for the first time report a profit  excluding special charges. In October 2000, Critical Path’s CEO publicly  stated that the company was increasing its fourth quarter revenue estimate  from $54 million to $56 million and reiterated his earlier prediction that the  company would earn its first quarterly profit. On November 2, 2000, Critical  Path issued a press release reiterating that guidance.
In an Administrative Order issued in February 2002, the Securities and  Exchange Commission (SEC or Commission) found that late in 2000,  Critical Path took several actions to boost revenue and reduce costs before  the end of December 2000 in order to announce a profit for the fourth  quarter as predicted. Specifically, SEC made the following findings. In the  final week of December 2000 Critical Path’s president and vice president of  sales concluded that there was no legitimate means by which Critical Path  could achieve its revenue and earnings goals. The president told the vicepresident to get approximately $4 million in “back-pocket” deals and  assured the vice president of sales that Critical Path could use its bad debt  reserve to absorb the losses when the purported customers failed to pay.
On January 11, 2001, Critical Path’s president directed Critical Path  personnel to backdate to December 2000, a $750,000 sale just made to a  company. In addition, Critical Path planned to recognize a $7 million sale to  a firm that was formed for this transaction and was owned by a group of  shareholders who owned a substantial amount of Critical Path stock. With  revenue from these transactions, Critical Path would beat consensus  estimates for revenue but not earnings for the quarter. However, Critical  Path’s finance officer disclosed the backdating of the $750,000 contract to  the new chief financial officer (CFO), who corrected the contract date and  did not allow the revenue to be recorded in the fourth quarter.
The complaint alleges that on January 17, 2001, Critical Path’s independent  accountants, PricewaterhouseCoopers LLP (PwC), told the new CFO that  the company should not record as revenue the $7 million transaction with  the reseller because in PwC’s view the reseller and the business objectives  of the transactions lacked substance.
After the market closed on January 18, 2001, Critical Path announced  unaudited condensed consolidated operating results for the fourth quarter  and year 2000, “prepared in accordance with generally accepted accounting  principles,” which included $52 million in revenue and a net loss of $11.5  million, excluding special charges. Even though the announced results for  the fourth quarter were materially overstated, they were below analysts’  estimates for both revenue and earnings.
On January 31, 2001, Critical Path’s new CFO learned about the misconduct  and alerted the company’s board, which held an emergency meeting on  February 1, 2001. The board took a number of steps, including forming a  special committee to conduct an investigation and placing the company’s  president, David A. Thatcher, and vice president of sales, Timothy J.  Ganley, on administrative leave.
On February 2, 2001, before the market opened, Critical Path issued a press  release announcing that (1) its board of directors had formed a special  committee to conduct an investigation into the company’s revenue  recognition practices, and (2) it now believed that the results the company  announced on January 18, 2001 might have been materially misstated.
On February 15, 2001, the company announced that, based on the  preliminary results of the special committee investigation, previously  announced revenues for the fourth quarter of 2000 would decrease by $6.5  million to $8 million. Of this amount, Critical Path expected that  approximately $4.2 million involved transactions that would not result in  revenue and that the remainder might result in revenue that would be  recognized during 2001. The company further expected that costs and  operating expenses for the fourth quarter of 2000 were going to increase by  $1 million to $2 million. In addition, the revisions would cause the  company’s net loss for the fourth quarter of 2000, excluding special  charges, to increase in the range of $19 million to $21.5 million.
On April 5, 2001, Critical Path filed its Form 10-K with SEC for fiscal year  2000. The final revisions were greater than originally estimated (table 11).  Revenue for the third quarter of 2000 was restated to $35.3 million (down  from $45 million). The net loss was restated to $18.6 million (up from $8.7  million), excluding special charges. Revenue for the fourth quarter was  revised to $42.3 million (down from $52.0 million announced on January 18,  2001). The total net loss was revised to $23.3 million, compared with $11.5  million previously announced. Likewise, for the year-end, revenue for 2000  was revised to $135.7 million, down from the previously announced $155  million. Net losses were revised to $78.9 million, compared with $57.2  million as previously announced.
In February 2002, Critical Path announced that it had completed a  restructuring plan that led to its return to financial stability, including a $95  million transaction by new financial partners that significantly improved its  financial position, bringing in $30 million in gross cash proceeds. In its  fourth quarter earnings report on February 5, 2002, the company said it had  shown revenue growth for its core Internet communications products for  three consecutive quarters, and said it expects to achieve positive earnings  before interest before interest, taxes, depreciation, and amortization  (excluding special charges) in the fourth quarter of 2002.
Accounting/Audit Firm  PwC was Critical Path’s independent accountant during the restatement  period and has been the company’s auditor since at least 1999.
section_title: Stock Price
paragraphs: Critical Path’s common stock trades on the National Association of  Securities Dealers Automated Quotation (Nasdaq) under the symbol CPTH.  From April 23, 1999, to September 28, 2001, Critical Path’s closing stock  price ranged from a high of $116.75 to a low of $0.26. On January 19, 2001,  the day after Critical Path announced that it would not meet its fourth  quarter earnings projection, Critical Path experienced a 55-percent loss in  market value. On February 2, 2001, before markets opened, Critical Path  announced the pending investigation and trading was suspended pending  the release of additional information. Trading resumed on February 15,  2001, when Critical Path announced the preliminary results of its  investigation. As figure 14 illustrates, the stock value dropped 70 percent.  That is, the stock price closed at $10.06 on February 1, 2001, the day before  the announcement of the investigation, and it closed at $3.06 on February  15, 2001, the day it announced the preliminary results. On April 4, 2001, the  day before it actually restated its earnings, the stock price closed at $1.53;  on the date of the restatement it closed at $1.53; and the day after it closed  at $1.06. For this 3-day period the stock dropped 31 percent.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on historical securities analysts recommendations that we were able  to identify, we found five analysts that covered Critical Path and all  initiated the stock as a buy or accumulate. Three of the five upgraded their  ratings later in 1999. In 2000, an additional 14 analysts initiated coverage of  Critical Path; all had generally favorable ratings. On November 29, 2000,  Critical Path received its first downgrade from a strong buy to a buy.  However, on January 19, 2001, the day after Critical Path announced its  earnings, which were below estimates, 10 analysts downgraded Critical  Path. Several other firms downgraded their initial recommendations on  February 2, 2001, the day Critical Path announced that it would have to  revise previous revenue and loss estimates for the fourth quarter and year- end 2000 and that it was launching an investigation into accounting  irregularities. Two firms downgraded the stock for a second time on  February 2, 2001, to market perform. One of the two firms made an  additional downgrade on the stock on February 16, 2001.
section_title: Credit Rating Agency Actions
paragraphs: Standard and Poor’s  long-term credit rating for Critical Path’s debt  indicated that Critical Path’s obligations were more vulnerable to  nonpayment than higher-rated companies but that it currently had the  capacity to meet its financial commitment on the obligation. In addition,  such a rating indicated that adverse business, financial, or economic  conditions will likely impair Critical Path’s capacity or willingness to meet  its commitment on the obligation. By May 15, 2001, it had been downgraded  and was considered “currently vulnerable” and dependent on favorable  business, financial, and economic conditions to meet its commitments. On  March 12, 2002, Critical Path was not rated, and according to Standard and  Poor’s, its future-rating outlook was not meaningful.
section_title: Legal and Regulatory Actions Taken
paragraphs: In early 2001, shareholders filed lawsuits against Critical Path to recover  damages caused by the defendants’ alleged violation of federal securities  laws. In November 2001, Critical Path settled class-action lawsuits brought  by shareholders against the company and several of its former officers and  directors. The settlement provided for $17.5 million in cash and the  issuance of warrants to purchase 850,000 shares of Critical Path common  stock at an exercise price of $10 per share. The cash settlement amount  will be covered by the company’s liability insurance. Also in November  2001, Critical Path settled related derivative action. The derivative litigation  settlement provides for certain corporate governance changes and the payment of plaintiffs’ attorney fees. In a separate matter, on April 3, 2002,  shareholders voluntarily withdrew lawsuits that had been filed in February  and March of 2002.
In February 2001, SEC issued a formal order of investigation of Critical  Path and certain unidentified individuals associated with Critical Path. The  investigation related to accounting matters, financial reports, other public  disclosures, and trading activity in its stock. In February 2002, without  admitting or denying SEC’s findings, Critical Path consented to an  administrative order finding that the company violated the periodic  reporting, books and records, and internal control provisions of the  Securities Exchange Act of 1934 (Exchange Act) and SEC Rule 13a-13.   The order directs Critical Path to cease and desist from committing or  causing violations of those provisions. SEC did not fine the company.
SEC initiated civil actions against Mr. Thatcher; Mr. Ganley, the vice  president of sales for Critical Path; William H. Rinehart, the head of Critical  Path’s North and Latin American sales forces from November 1998 until  February 2001; Jonathan A. Beck, a vice president of sales at Critical Path  from November 1998 until February 2001; and Kevin P. Clark, a regional  vice president of sales from November 1998 until February 2001. SEC’s  investigation in this matter is continuing.
Without admitting or denying SEC’s allegations, Mr. Thatcher consented to  a final judgment permanently enjoining him from violating antifraud,  reporting, books and records, and internal control provisions of the  Exchange Act and SEC rules and from aiding and abetting such violations.  The court also barred him for 5 years from serving as an officer or director  of any public company and ordered him to pay a civil penalty in the amount  of $110,000.
Mr. Ganley was charged with participating in one of the eight back-pocket  transactions, and it was alleged that he then illegally sold 1,300 shares of  Critical Path stock in January 2001 based on information he possessed  about the fraud and the company’s true financial condition. Without  admitting or denying SEC’s allegations, Mr. Ganley consented to the entry  of final judgment permanently enjoining him from violating antifraud and  books and record provisions of the Exchange Act and related SEC rules  and from aiding and abetting violations of books and records and internal  control requirements of the Exchange Act. He was also ordered to pay over  $105,900 in penalties and disgorgement. Specifically, he had to disgorge a  $27,950 loss he avoided by engaging in insider trading, plus prejudgment  interest. Mr. Ganley also had to pay a $27,950 civil penalty for insider  trading and a $50,000 civil penalty for his participation in the fictitious  transaction that was part of the financial fraud.
Mr. Rinehart was charged with directing his sales force to arrange—and in  each instance personally participated in—certain transactions for which  Critical Path improperly recorded revenue of approximately $6.3 million  for the fourth quarter of fiscal 2000. He then falsely stated in a letter to  Critical Path’s auditors that all of the company’s sales were bonafide.  Without admitting or denying the Commission’s allegations, Mr. Rinehart  consented to the entry of final judgments permanently enjoining him from  violating Sections 10(b) and 13(b)(5) of the Exchange Act and Exchange  Act Rules 10b-5, 13b2-1 and 13b2-2, and from aiding and abetting violations  of Sections 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act. He was also  ordered to pay a $110,000 civil penalty for his participation in the financial  fraud and barred from acting as an officer or director of a public company  for 5 years.
Mr. Clark was also charged with participating in one of these fraudulent  transactions, for which Critical Path improperly recorded revenue totaling  approximately $2.125 million. Mr. Clark, without admitting or denying the  Commission’s allegations, consented to the entry of final judgments  permanently enjoining him from violating Sections 10(b) and 13(b)(5) of  the Exchange Act and Exchange Act Rules 10b-5, 13b2-1 and 13b2-2, and  from aiding and abetting violations of Sections 13(b)(2)(A) and 13(b)(2)(B)  of the Exchange Act. He was also ordered to disgorge $343,140 plus $35,772  prejudgment interest.
The complaint alleges that Mr. Beck participated on one of the fraudulent  transactions, for which Critical Path improperly recorded revenue totaling  about $2.125 million. SEC alleges that Mr. Beck violated, or aided and  abetted violations of the antifraud, books and records, internal accounting  controls, and reporting provisions of the federal securities laws. The  Commission’s complaint further alleges that Mr. Beck illegally sold 27,348  shares of Critical Path stock based on nonpublic information he possessed  about the fraud and the company’s true financial condition. By selling  shares while the fraud was under way, Mr. Beck avoided losses of $586,368.  SEC asked the court to permanently restrain and enjoin Mr. Beck from  violating Sections 10(b) and 13(b)(5) of the Exchange Act and Exchange  Act Rules 10b-5 and 13b2-1, and from aiding and abetting violations of  Sections 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act. SEC also seeks  a civil monetary penalty and disgorgement of ill-gotten gains.
SEC also entered an administrative order against David A. Thatcher, the  president of Critical Path from January 2000 to February 2001 and acting  CFO from December 6, 2000, to January 3, 2001. Prior to becoming  president of Critical Path in January 2000, he served as CFO from  December 1998 to January 2000. In addition, he intermittently served on the  board of directors since 1997. He was a licensed certified public accountant  and signed off on Critical Path’s Form 10-Q filed with SEC for the first 3  quarters of 1999.
On February 5, 2002, the U.S. Attorney’s Office announced that it had filed  securities fraud charges against Mr. Thatcher, the former president, and the  unsealing of insider trading charges against Mr. Ganley, the former sales  vice president. Mr. Thatcher was charged with conspiracy to commit  securities fraud in violation of 18 U.S.C. § 371. According to the  announcement, he and others conspired to improperly record and  accelerate revenues during the third and fourth quarters of 2000. On  January 12, 2002, Mr. Thatcher pled guilty to the securities fraud charges.  Specifically, he admitted participation in six transactions for which Critical  Path improperly recognized revenue during the third and fourth quarters of  2000. He faces a maximum statutory penalty of 5 years imprisonment, a  $250,000 fine, and 3 years supervised release. As of September 19, 2002, Mr.  Thatcher had not been sentenced.
Mr. Ganley, the former sales vice president, was charged with insider  trading in violation of 15 U.S.C. § 78j(b), 15 U.S.C. § 78ff(a) and 17 CFR  240.10b-5. According to the January 9, 2002 grand jury indictment, he sold  Critical Path stock on January 11, 2001, while aware that the company was  recording false revenues and fraudulently under-recording expenses in an  ultimately unsuccessful attempt to meet its publicly stated goal of  profitability during the fourth quarter of 2000. On April 10, 2002, he pled  guilty to insider-trading charges. He admitted that on January 11, 2001, he  sold Critical Path stock on the basis of material inside information in  violations of securities laws. He faced a maximum statutory penalty of 10  years imprisonment, a $1 million fine, and 3 years supervised release. On  September 10, 2002, Mr. Ganley was sentenced to 6 months imprisonment,  2 years supervised release with a condition of 6 months home detention,  and a $100 special assessment.
On August 27, 2002, the U.S. Attorney’s Office for the Northern District of  California  announced criminal charges against Messrs. Beck and Clark for  insider trading. Both are expected to appear in court later in the year.
section_title: Enron Corporation
subsections: section_title: Business Overview
paragraphs: Enron Corporation (Enron) provides products and services related to  natural gas, electricity, and communications to wholesale and retail  customers through subsidiaries and affiliates. Enron’s activities are divided  into five segments: transportation and distribution, wholesale services,  retail energy services, broadband services, and other. Enron operates in the  United States, Canada, Europe, Japan, Australia, South America, and India.  Wholesale services accounted for 93 percent of 2000 revenues; retail  energy services, 4 percent; transportation and distribution, 3 percent; and  broadband services and other services, less than 1 percent. On December 2,  2001, Enron and 13 of its subsidiaries filed for Chapter 11 bankruptcy  protection under the federal bankruptcy code.
section_title: Restatement Data
paragraphs: On October 16, 2001, Enron announced its third quarter 2001 numbers, a  net loss of $618 million, which included a $544 million charge characterized  as a nonrecurring item related to the termination of “certain structured  finance arrangements” (table 12). On October 26, 2001, a special  committee of Enron’s board of directors began a review of transactions  between Enron and certain related parties. The board hired Wilmer, Cutler  & Pickering as its counsel, which hired Deloitte & Touche LLP to provide  accounting advice.
On November 8, 2001, Enron announced that it would restate earnings for  the period 1997 through 2001 to reflect (1) recording the previously  announced $1.2 billion reduction to shareholders’ equity reported by Enron  in the third quarter of 2001 and (2) various income statement and balance  sheet adjustments required as the result of a determination by Enron and  its auditors (which resulted from information made available from further  review of certain related-party transactions) that three unconsolidated  entities should have been consolidated in the financial statements pursuant  to generally accepted accounting principles (GAAP).
Enron, like many other companies, utilized a variety of structured  financings in the ordinary course of its business to access capital or hedge  risk.  Many of these transactions involved special purpose entities  (SPE).  Accounting guidelines allowed for SPEs to report separately from  the sponsoring company’s financial statements in certain circumstances,  and in other cases the SPEs’ financial results should be recorded with the  sponsoring company’s results. Accordingly, certain transactions between  the sponsoring company and the SPE may result in gains or losses or cash  flow being recognized by the sponsor, commonly referred to by financial  institutions as “monetizations.”  Enron established several SPEs; most  notable were Joint Energy Development Investments, L. P. (JEDI); Chewco  Investments, L.P. (Chewco); LJM Cayman, L.P. (LJM1); and LJM2 Co- Investment, L.P. (LJM2) referred to collectively as the LJMs.
JEDI was established in 1993 as a partnership between Enron and  California Public Employees’ Retirement System (Calpers) to invest in  natural gas projects. In 1997, Enron wanted to expand JEDI, but Calpers  was reluctant. Andrew Fastow, then chief financial officer (CFO), created  Chewco, which was setup in 1997 to buy out the interest of Calpers  investment in JEDI, which was valued at $383 million. The LJMs were  private investment limited partnerships that were formed in 1999. Mr.  Fastow was (from inception through July 2001) the managing member of  the general partners of the LJMs.
Enron restated its financial statements from 1997 through 2000 and the first  and second quarters of 2001 to (1) reflect the conclusion that three entities  mentioned above did not meet certain accounting requirements and should  have been consolidated, (2) reflect the adjustment to shareholders’ equity,  and (3) include prior-year proposed audit adjustments and reclassifications  (that were previously determined to be immaterial in the year originally  proposed).
Specifically, Enron concluded that based on current information the  financial activities of Chewco, a related party that was an investor in JEDI,  should have been consolidated beginning in November 1997. The financial  activities of JEDI, in which Enron was an investor and which were  consolidated into Enron’s financial statements during the first quarter of  2001, should have been consolidated beginning in November 1997; and the  financial activities of a wholly owned subsidiary of LJM1, which engaged in  transactions with Enron to permit Enron to hedge market risks of an equity  investment in Rhythms NetConnections, Inc., should have been  consolidated into Enron’s financial statements beginning in 1999.
Enron indicated that the restatement would include a reduction to reported  net income of approximately $96 million in 1997, $113 million in 1998, $250  million in 1999, and $132 million in 2000, and would also include increases  of $17 million for the first quarter of 2001 and $5 million for the second  quarter, and a reduction of $17 million for the third quarter of 2001 (table  12). These changes to net income were the result of the retroactive  consolidation of JEDI and Chewco (November 1997), the consolidation of  the LJM1 subsidiary for 1999 and 2000 and prior year proposed audit  adjustments. The consolidation of JEDI and Chewco also increased  Enron’s debt by approximately $711 million in 1997, $561 million in 1998,  $685 million in 1999, and $628 million in 2000 (table 12). Enron expected  the restatement would have no negative impact on its reported earnings for  the 9-month period ending September 2001.  from 1985 to 2001.  On January 17, 2002, Arthur Andersen was discharged  by Enron’s board of directors. As of August 2002, the company did not have  an independent auditor, and based on discussions with independent  auditing firms, Enron management believed that the retention of an auditor  is not feasible. Enron’s October 16, 2001, press release characterized  numerous charges against income for the third quarter as nonrecurring,  even though Arthur Andersen believed the company did not have a basis  for concluding that the charges would in fact be nonrecurring. According to  the U.S. Department of Justice indictment against Arthur Andersen, Arthur  Andersen allegedly advised Enron against using the term “nonrecurring”  and documented its objections internally in the event of litigation but did  not report its objections or otherwise take steps to cure Enron’s public  statement. The Department of Justice alleged that Arthur Andersen was put  on direct notice of the allegations of Sherron Watkins, an Enron employee  and former Arthur Andersen employee, regarding possible fraud and other  improprieties at Enron. In particular, she noted the possibility of fraud in  Enron’s use of off-balance-sheet SPEs that enabled the company to  camouflage the true financial condition of the company. Ms. Watkins had  reported her concerns to a partner at Arthur Andersen, who thereafter  allegedly disseminated them within Arthur Andersen, including to the team  working on the Enron audit.
section_title: Stock Price
paragraphs: Enron’s stock traded on the New York Stock Exchange (NYSE) under the  ticker symbol ENE. After being delisted from NYSE, Enron trades on the  over the counter under the ticker symbol ENRNQ. Enron’s stock  experienced a marked decline from May 2001 to October 2001, falling from  over $60 per share to under $30 per share. Following the October 16, 2001,  announcement of its third quarter net loss, which included a $544 million  loss on a structured finance arrangement, Enron’s stock price fell almost 75  percent from $33.84 to $9.05 by November 7, 2001, the day before it  announced that it would restate earnings for 1997 through 2001 (fig.15). In  the days surrounding the restatement announcement, its stock price fell  from $9.05 to $8.63, a drop of less than 5 percent. Shortly thereafter,  following a precipitous decline from over $9 to just over $4 in the weeks  following the restatement announcement, the stock lost 85 percent of its  remaining value on November 28, 2001, dropping from $4.14 to $0.61, after  a buyout by Dynegy Inc., fell through and bankruptcy appeared inevitable.  As of September 13, 2002, the stock price closed at $0.16.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on available historical securities analyst information we were able to  identify, as of October 18, 2001, 15 firms rated Enron a buy—12 of the 15  considered the stock a strong buy. Even as late as November 8, 2001, the  date of Enron’s disclosure that nearly 5 years of earnings would have to be  recalculated,  although most firms downgraded their ratings, 11 of 15  continued to recommend buying the stock, 3 recommended holding, and  only 1 recommended selling. In November 2001, one firm upgraded its  recommendation from sell to hold.
section_title: Credit Rating Agency Actions
paragraphs: Moody’s Investors Service, Inc. (Moody’s), and Standard and Poor’s rated  Enron. Each reacted differently to Enron’s October 16, 2001,  announcement of third-quarter losses. Standard and Poor’s affirmed  Enron’s medium grade rating, which indicated that Enron had adequate  capacity to meet its financial commitments. However, its rating also  indicated that adverse economic conditions or changing circumstances  were more likely to lead to a weakened capacity to meet financial  commitments. Moody’s placed all of Enron’s long-term debt on review for  possible downgrade. Both firms continued to downgrade Enron’s debt and  commercial paper throughout October and November 2001. On December  3, 2001, the day after Enron filed for bankruptcy protection under Chapter  11, Standard and Poor’s lowered Enron’s rating to reflect its view that a  default was likely and that Enron would fail to pay all or substantially all of  its obligations when they came due. Moody’s downgraded Enron’s long- term debt ratings and senior unsecured debt to a low grade indicating that a  partial recovery was possible.
section_title: Legal and Regulatory Actions Taken
paragraphs: Enron is a defendant in several civil lawsuits. Early in 2002, a class-action  lawsuit was filed against Enron in the U.S. District Court for the Southern  District of Texas. Among other things, the complaint alleges that certain  Enron executives and directors, its accountants, law firms, and banks  violated securities laws and conducted massive insider trading while  making false and misleading statements. The trial is scheduled to begin on  December 1, 2003. On December 2, 2001, Enron and 1,500 of its subsidiaries  filed for Chapter 11 bankruptcy protection under the federal bankruptcy  code.
On October 17, 2001, the day after Enron initially announced a large loss,  the Securities and Exchange Commission (SEC or Commission) began an  investigation by requesting in writing information from Enron. By October  19, 2001, Enron had notified Arthur Andersen that SEC had begun an  inquiry regarding Enron’s SPEs and the involvement of Enron’s CFO.  According to the Department of Justice action, on October 23, 2001, Arthur  Andersen’s Enron engagement team allegedly began the wholesale  destruction of documents at Arthur Andersen’s offices in Houston, Texas,  under orders from Arthur Andersen partners. On or about November 8,  2001, SEC served Arthur Andersen with a subpoena relating to its work for  Enron. It was at that point that Arthur Andersen’s Enron team was  instructed to halt destroying documents because the firm had been  officially served a subpoena. Arthur Andersen’s lead Enron auditor, David  B. Duncan, pled guilty to obstruction of justice charges on April 9, 2002,  and cooperated with authorities. On June 15, 2002, Arthur Andersen was  found guilty of obstruction of justice. Arthur Andersen is appealing the  decision. Also, on June 15, 2002, Arthur Andersen notified SEC that as of  August 31, 2002, it would cease to practice before SEC. On September 2,  2002, Arthur Andersen announced that it had surrendered to state  regulators all licenses “to practice public accountancy.”
SEC filed a subpoena enforcement action against Mr. Fastow, former CFO,  for failing to appear for testimony before SEC staff on December 12, 2001.  On August 20, 2002, the Department of Justice filed suit against Michael J.  Kopper, charging him with money-laundering conspiracy and conspiracy to  commit wire fraud. The following day, August 21, 2002, SEC charged  former senior Enron official Michael J. Kopper with violating the antifraud  provisions of the federal securities laws. As of August 2002, no other legal  action has been taken against Enron or its current or former employees by  government agencies; however, investigations continue.
section_title: Hayes Lemmerz International, Inc.
subsections: section_title: Business Overview
paragraphs: Hayes Lemmerz International, Inc. (Hayes) is a supplier of automotive and  commercial highway wheels, brakes, power train, suspension, structural  and other lightweight components. The company’s principal customers for  wheel and brake products consist of every major original equipment  manufacturer in North America, Europe, and Japan. The company has 46  plants, 6 joint venture facilities, and over 14,000 employees worldwide. For  the fiscal year ended January 31, 2001, Hayes had net sales of $2 billion. On  December 5, 2001, the company and certain of its subsidiaries filed for  Chapter 11 bankruptcy protection under the federal bankruptcy code.
section_title: Restatement Data
paragraphs: On September 5, 2001, the company announced that it would restate  financial results for fiscal 2000 and the first quarter of fiscal 2001.  According to its press release, these restatements would correct errors that  the company and its auditors, KPMG LLP, identified in the accounting for  certain items and write down the value of certain impaired assets at one of  its manufacturing plants. In addition, Hayes announced that its audit  committee of the board of directors was given the responsibility to  investigate these accounting errors. The audit committee engaged  Skadden, Arps, Slate, Meagher & Flom LLP and Ernst & Young LLP to  advise it during this review. Subsequently, Hayes formally notified the  Securities and Exchange Commission (SEC or Commission) that its Form  10-Q for the fiscal quarter ended July 31, 2001, would be delayed.
On December 13, 2001, Hayes announced that it had substantially  completed its accounting investigation and restatement for fiscal 2000 and  the first quarter of 2001. In addition, Hayes announced that it was also  restating its financial results for the fiscal year 1999 and related quarters.  On February 19, 2002, Hayes filed its amended Form 10-K with SEC, which  restated its financial statements and cumulatively reduced previously  reported net income for fiscal years 1999 and 2000 and the first quarter of  fiscal 2001 by $218 million in total (table 13). The company also reported  that earnings before interest, taxes, depreciation, and amortization  (EBITDA), a measure of operating performance, would be reduced by $96.4  million. In addition, Hayes reported that non-EBITDA adjustments related  primarily to asset impairment losses, increases in deferred income tax  valuation allowances, and restructuring charges.
LLP continued in that capacity.
section_title: Stock Price
paragraphs: The company’s common stock was traded on the New York Stock  Exchange (NYSE) under the ticker symbol HAZ. However, trading was  suspended on December 6, 2001, after it filed for bankruptcy. Its stock was  delisted on February 8, 2002. The company now trades over the counter  under the ticker symbol HLMMQ.
In March 2001, Hayes traded at over $6 per share and trended upward to  over $8 a share in June 2001. It remained volatile throughout August 2001.  On September 4, 2001, the day before it announced its financial restatement  and the initiation of an internal investigation into its accounting practices,  Hayes’s shares closed at $4.15. On September 6, 2001, the day after the  announcement, it closed at $1.80 per share (see fig. 16), a decline of more  than 50 percent. When the company filed for bankruptcy on December 5,  2001, its stock price had fallen to $0.50 per share.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on available historical securities analyst information we were able to  identify, on November 21, 2000, almost a year before the restatement  announcement, one analyst downgraded Hayes’s rating from a buy to  neutral. In the week before the financial restatement, another analyst  downgraded his recommendation on Hayes from buy to hold. On  December 6, 2001, the same firm stopped its coverage of Hayes after the  bankruptcy filing.
section_title: Credit Rating Agency Actions
paragraphs: Both Moody’s Investors Service, Inc. (Moody’s) and Standard and Poor’s  rated the company’s debt before and during the restatement period. In  October 2000, Moody’s rated Hayes’s debt as poor, generally lacking  characteristics of a desirable investment. In April 2001, Standard and Poor’s  gave Hayes debt a generally comparable weak rating, which indicated that  Hayes had the capacity to meet its financial obligations but was vulnerable  to adverse business, financial, or economic conditions. In June 2001,  Moody’s downgraded Hayes’s subordinated debt to very poor but  considered its outlook stable. On September 6, 2001, the day after the  restatement announcement and internal investigation, Standard and Poor’s  maintained Hayes’s debt rating but assigned its outlook as negative. On the  following day, September 7, 2001, Moody’s downgraded Hayes’s debt  further and placed the company on review for a further downgrade. In  October, Moody’s and Standard and Poor’s downgraded Hayes’s credit  rating once again. On December 6, 2001, the day after Hayes filed for  Chapter 11 bankruptcy protection, Standard and Poor’s downgraded its  rating indicating that it had filed for bankruptcy protection. In January  2002, Standard and Poor’s placed Hayes on its nonrated list.
section_title: Legal and Regulatory Actions Taken
paragraphs: On December 5, 2001, the company, its domestic subsidiaries, and one  subsidiary in Mexico filed voluntary petitions under Chapter 11 of the U.S.  Bankruptcy Code.
In May 2002, a group of Hayes bondholders brought a class-action lawsuit  against 13 present and former directors and officers of Hayes (but not the  company) and KPMG LLP in the U.S. District Court for the Eastern District  of Michigan. The complaint seeks damages for a class of persons who  purchased Hayes bonds between June 3, 1999, and September 5, 2001, and  claim to have been injured because they relied on the allegedly false and  misleading financial statements. The complaint was subsequently amended  to add CIBC World Markets Corp. and Credit Suisse First Boston  Corporation, underwriters for certain bonds issued by Hayes, as  defendants.
Before the date Hayes commenced Chapter 11 bankruptcy, four class  actions were filed in the U.S. District Court for the Eastern District of  Michigan against Hayes and certain of its directors and officers, on behalf  of purchasers of Hayes’s common stock from June 3, 1999, to December 13,  2001, based on similar allegations of securities fraud. On May 10, 2002, the  plaintiffs filed a consolidated and amended class-action complaint seeking  damages against present and former Hayes officers and directors (but not  the company).
According to the Hayes September 16, 2002, Form 10-Q filed with SEC,  Hayes was under investigation by SEC for accounting errors found in its  fiscal 1999, 2000, and the first quarter of fiscal 2001 statements.
section_title: JDS Uniphase Corporation
subsections: section_title: Business Overview
paragraphs: JDS Uniphase Corporation (JDS Uniphase) is a technology company that  designs, develops, manufactures, and distributes fiber-optic components,  modules and subsystems for the fiber-optic communications industry.  These products are deployed in optical communications networks for the  data communications, telecommunications, and cable television industries  and include source and pump lasers and modulators to send signals across  fiber-optic networks, as well as passive components that amplify and guide  optical signals on their way. JDS Uniphase and its subsidiaries also use  optics technology to offer products and solutions in other markets,  including optical coatings, biomedical instruments, semiconductors and  graphic arts. Nortel Networks, Alcatel, and Lucent account for a combined  36 percent of sales; other customers include CIENA, Tyco, Cisco, Compaq  and Motorola.
According to company documentation, JDS Uniphase is the product of a  number of substantial mergers and acquisitions, including the combination  of Uniphase Corporation and JDS Fitel Inc., to form JDS Uniphase  Corporation on June 30, 1999, and the subsequent acquisitions of Optical  Coating Laboratory, Inc., (OCLI) on February 4, 2000; E-Tek Dynamics, Inc.,  (E-Tek) on June 30, 2000; and SDL, Inc., (SDL) on February 13, 2001. In  2001, JDS Uniphase sold a Zurich based pump laser manufacturing plant to  Nortel to gain regulatory approval for the SDL acquisition. JDS Uniphase  has planned additional facility closures and has laid off more than 50  percent of its staff in response to lagging sales and massive losses incurred  from write-downs of its acquisitions.
section_title: Restatement Data
paragraphs: respectively. The company also announced that it was conducting a further  assessment of its long-lived assets and that additional adjustments to fiscal  2001 results might be necessary. This review resulted in JDS Uniphase  recording additional charges to reduce goodwill and other long-lived assets  of $1.1 billion and $4.2 billion during the quarters ended March 31, 2001,  and June 30, 2001, respectively. The financial statements reflecting these  charges, including the restated figures for the quarter ended March 31,  2001, were filed with SEC on September 19, 2001. The restatement  increased the company’s net loss from the originally reported amount of  $1.3 billion to a restated loss of $41.9 billion (table 14).
In addition to the $39.8 billion reduction in the carrying value of goodwill,  the financial statements for the quarter ended March 31, 2001, were  restated to (1) reclassify $300.9 million in amounts paid to certain SDL  executives in connection with the acquisition as compensation expense for  the period, rather than acquisition costs as previously reported; (2) adjust  for other acquisition costs related to the acquisitions of SDL and E-TEK for  $16.8 million; and (3) record a charge of $714.5 million to write down the  value of the company’s investment in ADVA, a publicly traded German  company, due to an other than temporary decline in its fair value. separately identifiable cash flows. Of the total write down, $46.6 billion was  related to the goodwill primarily associated with the acquisitions of E-TEK,  SDL, and OCLI.
Accounting/Audit Firm Ernst & Young, LLP (Ernst & Young) was the independent auditor for JDS  Uniphase during the relevant period. It has been named in at least one  class-action lawsuit filed April 23, 2002.
section_title: Stock Price
paragraphs: JDS Uniphase Corporation is traded on the National Association Securities  Dealers Automated Quotation (Nasdaq) under the symbol JDSU. On  February 4, 2000, when JDS Uniphase initiated a substantial number of  acquisitions with the purchase of OCLI, the company’s stock price was  $105.59 per share. About 1 year later its stock price closed at less than half  that price. From February 2001 to April 2001, its stock price continued to  fall. On April 24, 2001, when JDS Uniphase announced that its review of the  carrying amount of goodwill might result in a significant write-down, the  stock price closed at $20.84, down $3.34 or almost 14 percent from the  prior day’s close (fig. 17). On July 26, 2001, when the company announced  the charges for the quarters ended March 31, 2001, and June 30, 2001, the  stock price closed at $9.47. Once JDS Uniphase filed its restated financials  on September 19, 2001, the stock price further declined to $5.70. This  represented a decline of over 70 percent from the initial announcement of  the goodwill review on April 24, 2001. Over the same period, the Nasdaq  Composite Index lost about 25 percent.
section_title: Securities Analysts’ Recommendations
paragraphs: downgraded its recommendation on JDS Uniphase stock to market  perform.
In the period following the restatement announcement, most firms  downgraded or reiterated their ratings, which included hold, neutral, buy  and market perform. Several of the analysts upgraded the stock in  September and October 2001 (the month of and the month following the  restatement). Three others downgraded their ratings and one firm made no  change. From February 2001 through October 2001, the time period  surrounding the events of the restatement and goodwill reduction analyst  recommendations included primarily buy and hold or neutral ratings. For  example, after the company filed its restated financial statements on  September 19, 2001, a number of firms upgraded their recommendations to  buy ratings. Throughout 2001, the distribution of buy and hold ratings  remained mixed.
section_title: Credit Rating Agency Actions
paragraphs: No information was found.
section_title: Legal and Regulatory Actions Taken
paragraphs: Several civil lawsuits, including a consolidated class-action suit, have been  filed against JDS Uniphase since March 27, 2002. The lawsuits charge JDS  Uniphase and certain of its officers and directors with violations of the  Securities Exchange Act of 1934. The class-action complaint alleges, among  other things, that JDS Uniphase and the other defendants were motivated  to inflate the value of JDS Uniphase’s stock to finance its acquisitions and  to enable top officers and directors of JDS Uniphase to sell their shares.  Furthermore, the complaint alleges that JDS Uniphase violated federal  securities law by failing to disclose that its earnings were artificially  inflated due to the company’s failure to record write-downs of goodwill and  other intangible assets associated with the mergers between Uniphase  Corp., OCLI, E-Tek, and SDL and JDS Uniphase after it had become  apparent that such assets were being carried at unrealistically and  misleadingly high values. In at least one of the lawsuits, JDS Uniphase’s  auditor, Ernst & Young, was named as a defendant. The complaint alleges  that Ernst & Young violated federal securities laws by issuing unqualified  audit opinions regarding JDS Uniphase’s financial statements that Ernst &  Young knew or recklessly failed to discover were false and misleading.
As of August 21, 2002, SEC had taken no regulatory action against JDS  Uniphase or any of its officers or directors.
section_title: MicroStrategy Incorporated
subsections: section_title: Business Overview
paragraphs: MicroStrategy Incorporated (MicroStrategy) is a worldwide provider of  business intelligence software that enables companies to analyze the raw  data stored across their enterprises to reveal the trends and answers  needed to manage their business. MicroStrategy’s software is used by   workgroups, the enterprise and extranet communities via E-mail, Web,  wireless and voice communication channels. MicroStrategy also offers  services to its customers and partners, including consulting, education, and  technical support, accounting for 60 percent of sales. Customers number  over 1,700 and include retail, telecommunications, pharmaceutical,  insurance, manufacturing, and financial services companies. In business  intelligence software, MicroStrategy competes with Microsoft, Oracle,  Hyperion Solutions, SAP AG, Computer Associates, and SAS. The company  markets its products and services through partners and a direct sales force.  MicroStrategy has over 480 technology and integration partners, including  IBM, PeopleSoft, and JD Edwards. A slumping economy has led the  company to consolidate its operations and cut its workforce by more than  one-third. On December 31, 2001, MicroStrategy discontinued the  operations of its Strategy.com subsidiary, a personalized information  delivery network.
section_title: Restatement Data
paragraphs: The Center for Financial Research & Analysis raised questions about  certain accounting practices at MicroStrategy in a report issued in  November 1999. Specifically, the report raised concerns about  MicroStrategy’s revenue and earnings figures from an earlier quarter. On  March 6, 2000, a Forbes magazine article also questioned MicroStrategy’s  accounting of revenue.  After discussions with its senior management,  PricewaterhouseCoopers LLP (PwC), MicroStrategy’s auditor,  recommended that the company issue a restatement. On March 20, 2000,  MicroStrategy announced that it intended to restate its financial results for  the fiscal years 1998 and 1999. On April 13, 2000, MicroStrategy restated its  net income by about $55.8 million for the years 1997, 1998 and 1999. The  restatement reduced earnings for those 3 years, from a total net income of  about $18.9 million to a net loss of about $36.9 million. In 1997 and 1998,  net earnings were reduced by about $1.0 million and $8.4 million, or 831  percent and 137 percent of the amount originally reported, respectively. In  1999, net earnings were reduced by about $46.4 million, or 367 percent of  the amount originally reported (table 15).
According to the Securities and Exchange Commission (SEC or  Commission) order filed in December 2000, the company’s reporting  failures primarily derived from its premature recognition of revenue from  some of its software sales, in violation of The American Institute of  Certified Public Accountants (AICPA) Statement of Position (SOP) 97-2,  with additional restatements resulting from the company’s failure to  properly execute contracts in the same fiscal period that revenue was  recorded from those deals, as well as other accounting errors.  Generally  for accounting purposes, product revenue is recognized immediately, while  revenue from services is recognized as the services are provided.  According to the order, because MicroStrategy’s software license sales  were part of multiple-element transactions that included other services  such as product support and development and consulting, the company  was required to apply contract accounting (the subscription method or the  percentage of completion method of accounting). However, for a number  of transactions that were subsequently restated, MicroStrategy had (1)  improperly separated software license sales from their service elements  and (2) characterized revenue in multiple element transactions as product  or software revenue and recognized it at the time of the transaction.
SEC also alleged that additional accounting errors included the timing of  contracts, valuing future obligations, and revenue recognition for barter  transactions. In at least three instances, MicroStrategy recognized revenue  on transactions that were not completed or signed by either party prior to  the close of the quarter. In a separate transaction, MicroStrategy  improperly recognized revenue for a license to unspecified future products  and failed to recognize a deal as a barter transaction yielding no revenue.
In addition to restating its revenue, the company also restated several  balance sheet items. This included a reduction of fixed assets by  approximately $8.8 million, with approximately $5 million of this as a   reduction of revenue, for the fiscal year-end December 31, 1999.
According to SEC’s order, one example of the alleged improper use of  accounting by MicroStrategy was the handling of a transaction with NCR  Corporation (NCR). MicroStrategy signed a final contract for a $27.5  million transaction with NCR in the early hours of October 1, 1999.  Although the contract had not been signed by the end of the quarter ended  September 30, MicroStrategy improperly recognized $17.5 million in  revenue from the transaction in its financial statements for the quarter  ended September 30, 1999. NCR, however, did not record the transaction  until its fourth quarter. MicroStrategy ultimately restated the NCR  transaction due to a misapplication of SOP 97-2. By accounting for the NCR  transaction in the third quarter, chief executive officer (CEO) Michael  Saylor was able to announce on October 18, 1999, that MicroStrategy had  achieved its 15th consecutive quarter of increased revenues. Without the  improperly recognized transaction, revenues would have dropped nearly 20  percent from the previous quarter.
Accounting/Audit Firm PwC assumed its audit role in July 1998 and issued unqualified opinions on  MicroStrategy’s subsequent financial statements. On January 26, 2000, PwC  certified MicroStrategy’s 1999 financial statements. After public scrutiny of  third quarter results by the Center for Financial Research & Analysis and  Forbes magazine, PwC recommended that MicroStrategy restate its  financial statements in March 2000. Later that year, SEC began  investigating the relationship between PwC and MicroStrategy. Specifically,  SEC investigated PwC’s purchase of MicroStrategy products for resale to  its consulting clients. According to Microstrategy, SEC’s investigation is  still ongoing. To date, PwC has not been charged in this matter. On July 7,  2000, PwC was named as a defendant in a consolidated class-action lawsuit  filed against MicroStrategy, its officers and directors. See the “Legal and  Regulatory Actions” section of this case study.
section_title: Stock Price
paragraphs: MicroStrategy stock trades on the National Association of Securities  Dealers Automated Quotation (Nasdaq) under the ticker symbol MSTR.  Even after questions were raised about MicroStrategy’s accounting  practices, its stock price continued to increase dramatically. From the time  that the Center for Financial Research & Analysis first raised concern on  November 11, 1999, to the Forbes article on March 6, 2000, the stock price  increased over 400 percent. On January 27, 2000, after MicroStrategy  announced fourth quarter results, the stock price closed at $149.56 per  share.  The stock price continued to climb and doubled between the end  of February and March 10, 2000, when the stock price closed at $313. On  the last trading day before MicroStrategy announced its intended  restatement, MicroStrategy’s stock price closed at $226.75 per share. On  March 20, 2000, when MicroStrategy announced that its financial  statements for the past 2 years would need to be restated, the stock price  fell over 60 percent to close at $86.75. The stock price continued to fall the  day after the announcement and closed at $72.31. Over these 3 trading  days, the stock price fell almost 70 percent. By the time MicroStrategy filed  its restated financial statements with SEC on April 13, 2000, the stock price  closed at $39.06. On July 25, 2002, the stock price closed at $0.47. On  September 17, 2002, the stock price closed at $10.29.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on historical securities analysts’ research we found, in early 2000, as  MicroStrategy’s stock price increased, analysts promoted the stock. For  example, on January 12, 2000, one firm reiterated its strong buy  recommendation, while another reiterated its buy recommendation on  January 28, 2000. While a number of firms downgraded their  recommendations after the March 20, 2000, restatement announcement,  the downgrades ranged from accumulate to hold. For example, on March  20, 2000, one firm downgraded MicroStrategy from near-term/long-term  buy to near-term/long-term accumulate while three other firms  downgraded from strong buy and long-term buy to accumulate and hold,  respectively, on April 27, 2000.
section_title: Credit Rating Agency Actions
paragraphs: No information was found.
section_title: Legal and Regulatory Actions Taken
paragraphs: From March 2000 through May 2000, 25 class-action complaints were filed  against MicroStrategy and certain of its officers and directors alleging  violations of Section 10(b), Rule 10b-5 thereunder, Section 20(a) and  Section 20A of the Securities Exchange Act of 1934 (Exchange Act). The  company’s auditor, PwC, was also named in two of the suits. The  complaints contained varying allegations, including that MicroStrategy  made materially false and misleading statements regarding the company’s  1997, 1998, and 1999 financial results in filings with SEC, analysts’ reports,  press releases and media reports. These class-action lawsuits were  consolidated and a settlement agreement was later reached on October 23,  2000. The class members were entitled to receive (1) an aggregate principal  amount of $80.3 million of MicroStrategy’s 7.5 percent series A unsecured  notes, which have a 5-year maturity and bear interest at 7.5 percent per  year, payable semiannually; (2) 297,330 shares of class A common stock;  (3) warrants to purchase 189,698 shares of class A common stock at an  exercise price of $400.00 per share, with the warrants expiring on June 24,  2007; and (4) approximately $5,000 in cash to settle remaining fractional  interests. On June 24, 2002, all of the common stock, warrants and cash  were issued to the class members. The company issued 1 percent of the  aggregate principal amount of the promissory notes on June 24, 2002, and  issued the remaining 99 percent of the aggregate principal amount of the  promissory notes on July 2, 2002. PwC also settled its class-action lawsuit  in connection with the restatement of MicroStrategy’s financial statements  with a $55 million cash payment.
On June 30, 2000, a shareholder derivative action was filed in the Delaware  Court of Chancery seeking recovery for various alleged breaches of  fiduciary duties by certain of the company’s directors and officers relating  to its restatement of financial results. Subsequently, Microstrategy and the  directors and officers named as defendants settled this action. Under the  settlement, MicroStrategy added two new independent directors with  finance experience to the audit committee of its board of directors and will  ensure continued adherence with applicable legal and regulatory  requirements regarding the independence of audit committee members and  trading by insiders. On November 7, 2001, as a part of the derivative  settlement agreement and in satisfaction of a condition to the distribution  of the securities issued as part of the class-action settlement, Mr. Saylor,  chairman of the board of directors and CEO; Mr. Bansal, vice chairman,  executive vice president and chief operating officer (COO); and Mr. Lynch,  former chief financial officer (CFO) and current vice president of business  affairs, tendered to MicroStrategy for cancellation an aggregate of 168,350  shares of class A common stock held by them.
In March 2000, SEC issued a formal order of investigation of MicroStrategy  relating to the company’s restatement of revenue and earnings. On  December 14, 2000, this investigation resulted in SEC’s initiation and  settlement of administrative reporting charges against MicroStrategy and  accounting fraud charges against its Mr. Saylor, CEO; Sanju K. Bansal,  COO; and Mark S. Lynch, former CFO.
The charges against the company were instituted through entry of an order  instituting proceedings pursuant to Section 21C of the Exchange Act,  making findings, and imposing remedial sanctions and a cease and desist  order. SEC found that MicroStrategy violated Sections 13(a), 13(b)(2)(A),  and 13(b)(2)(B) of the Exchange Act and Rules 13a-1 and 13a-13  thereunder, relating to the filing of annual and quarterly reports, the  recording of transactions, and the maintenance of accurate books and  records. The company consented to this order and agreed to significant  undertakings in the areas of corporate governance, management, and  compliance in order to strengthen the company’s financial reporting and  accounting processes.
The action against MicroStrategy’s top three officers alleged that they  materially overstated MicroStrategy’s revenues and earnings from the time  of its initial public offering in June 1998 through March 2000. SEC alleged  that Mr. Lynch, the CFO, was principally responsible for ensuring the  veracity of MicroStrategy’s financial reporting and signed the company’  periodic reports. Mr. Saylor, the CEO, signed the periodic reports and  participated in the negotiation of several of the largest restated  transactions. Mr. Bansal, the COO, also participated in the negotiation of  several of the restated transactions and signed numerous contracts on  which revenue was improperly recognized. Without admitting or denying  the allegations, these company officers consented to the entry of a final  judgment permanently enjoining each of them from violating the antifraud  and recordkeeping provisions of the federal securities laws (Section 17(a)  of the Securities Act of 1933, Section 10(b) of the Exchange Act and Rules  10b-5 and 13b2-1 thereunder). These officers further agreed to disgorge a  total of approximately $10 million and pay civil penalties of $350,000 each.  Mr. Lynch also consented to the entry of an administrative order pursuant  to SEC Rule 102(e)(3), based on entry of an injunction, barring him from  practicing before SEC as an accountant, with a right to reapply after 3  years. SEC also instituted a settled order against Antoinette A. Parsons,  MicroStrategy’s corporate controller, and Stacy L. Hamm, the accounting  manager, in which each consented to the entry of a cease and desist order  for reporting and recordkeeping violations.
section_title: Orbital Sciences Corporation
subsections: section_title: Business Overview
paragraphs: Orbital Sciences Corporation (Orbital) is a space technology company that  designs, manufactures, operates, and markets a broad range of space-  related systems for commercial, government and military customers.  Orbital’s products include low-level orbit, geosynchronous orbit, and  planetary spacecraft used for communications, remote sensing, and  scientific purposes. The company also provides launch services used to  place satellites into orbit and suborbital launch vehicles and missile  defense boosters that are used as interceptor and target vehicles in missile  defense systems. The U.S. government and its contractors account for  about 55 percent of Orbital’s 2001 sales. For the 6 months ending June 30,  2002, revenues rose 26 percent to $256.1 million. Net income from  continuing operations totaled $7.8 million for the 6 months ended June 30,  2002, versus a net loss of $47.8 million for the comparable 2001 period.
section_title: Restatement Data
paragraphs: During 1999 and 2000, Orbital made a number of announcements regarding  various determinations to restate its financial statements. Initially, on  February 16, 1999, Orbital announced that the company would restate its  financial statements for the first three quarters of 1998, based upon  recommendations made by its independent auditors, KPMG LLP. The  company indicated that it did not agree with such recommendations, which  related primarily to the accounting treatment of certain capitalized costs  and revenue recognition. On April 29, 1999, the company fired KPMG LLP  due to disagreements with regard to, among other things, the above- described accounting issues. Orbital engaged PricewaterhouseCoopers  LLP (PwC) as its new independent auditor.
On October 29, 1999, Orbital announced that based on a recommendation  by PwC, the company would change its previously audited accounting  treatment primarily with respect to its investment in an affiliate. While  KPMG LLP had previously reviewed and approved the company’s prior  accounting treatment, when the issue was raised by PwC, KPMG LLP  informed the company that KPMG LLP had changed its position and the  company’s financial statements should be restated for fiscal years ended  December 31, 1997, and 1998. restatement announcement occurred on April 14, 2000. The company  announced that based on the recommendation of its current auditors, PwC,  Orbital determined that it would also restate its financial statements for the  years ended December 31, 1995, and 1996, in order to expense costs related  to the company’s two principal space launch vehicles that were previously  capitalized. The company also announced that it was continuing to work  with its current and previous auditors to finalize the previously announced  restatements for 1997, 1998, and the first three quarters of 1999. restatements. Additionally, Orbital restated 1995 and 1996 financial results  as a result of a change in how it accounted for product enhancement costs.
section_title: Stock Price
paragraphs: Orbital’s stock is traded on the New York Stock Exchange (NYSE) under  the ticker symbol ORB. The stock peaked at over $45 per share in mid- January 1999 (Fig. 19). A sharp decline ensued following an earnings  warning from the company on February 4, 1999, in which Orbital said that  accounting changes at two of its units would cause it to miss earnings  estimates. The stock closed at $29.625 on February 16, 1999, and after the  close of trading the company reported its fiscal fourth quarter numbers— which were far below analyst estimates—and announced a restatement. On  February 17, 1999, Orbital shares fell $2.25 (8 percent) to $27.375. Later,  after reporting a large fiscal first-quarter loss and announcing a change of  auditors on April 29,1999, Orbital’s stock declined over 25 percent. Then, in  mid-September 1999, a brokerage firm lowered its third-quarter estimates  for Orbital; the stock dropped from over $23 to the mid-teens by late  October 1999. On October 29, 1999, the date that Orbital announced that it  would need to restate back to 1997, its stock fell slightly. On March 30 and  April 14, 2000, Orbital issued announcements regarding delays in the  release of financial statements as a result of deciding to restate additional  years. Finally, beginning in April 2000 Orbital began to release its restated  numbers. The stream of earnings disappointments and accounting  problems contributed to the stock moving from over $40 in early 1999 to  under $10 in late 2000. Over the same period the stock market increased  over 20 percent.
section_title: Securities Analysts’ Recommendations
paragraphs: company as an outperform with a $17 price target. At that time, the stock  was trading at $9.63 (August 16, 2000).
section_title: Credit Rating Agency Actions
paragraphs: Moody’s Investors Service, Inc. (Moody’s) and Standard and Poor’s rated  Orbital’s debt. In 1998 Moody’s credit rating for Orbital’s debt indicated that  it generally lacked the characteristics of a desired investment and  assurance that interest and principal payments over any long period may be  small. Standard and Poor’s rating was slightly higher, indicating that it  faced major ongoing uncertainties and exposure to adverse business,  financial, or economic conditions, which could affect its capacity to meet  its financial commitments. In June 1999, Moody’s downgraded Orbital’s  debt rating to poor. In November 1999, after the October restatement  announcement, Standard and Poor’s lowered Orbital’s credit rating as well.  In May 2000, Standard and Poor’s reaffirmed its rating.
section_title: Legal and Regulatory Actions Taken
paragraphs: In the first quarter of 1999, several lawsuits were filed by investors on  behalf of shareholders against Orbital and KPMG LLP. The lawsuits related  to, among other things, matters underlying the restatements announced in  February 1999. These lawsuits were eventually consolidated into a class- action lawsuit. In the fourth quarter of 1999, in connection with the  company’s October 1999 restatement announcement, another class-action  lawsuit was filed against Orbital. According to Orbital, the consolidated  class-action lawsuits were settled. Under the settlement, Orbital’s  insurance carrier was to pay $11 million to the shareholder class. In  addition, Orbital was to issue warrants having an aggregate fair value of  $11.5 million as of the settlement date. The proposed settlement of the  class- action lawsuit against KPMG LLP required KPMG LLP to pay $1  million in cash.
SEC filed an amicus curaie—friend of the court brief—related to motions  filed with the court regarding the appointment of lead plaintiff in the  shareholder actions. However, to date, SEC has not pursued any legal or  administrative proceedings against the company related to securities  violations.
section_title: Rite Aid Corporation
subsections: section_title: Business Overview
paragraphs: Rite Aid Corporation (Rite Aid) is the third largest retail drugstore chain in  the United States, operating nearly 3,500 retail drugstores in 28 states and  the District of Columbia. Rite Aid sells prescription drugs—accounting for  about 60 percent of sales—nonprescription medications, health and beauty  aids, personal care items, cosmetics, photo processing and convenience  items. In July 1999, Rite Aid partnered with the Internet pharmacy  drugstore.com with an approximately 22 percent equity investment, which  has since been sold. During the 1990s, Rite Aid expanded through a number  of acquisitions, including Perry Drug Stores in fiscal year 1995; Thrifty  PayLess Holdings, Inc., (Thrifty PayLess) in fiscal year 1996; Harco Inc.,  (Harco); and K&B Inc., (K&B), in fiscal year 1997; and PCS Health Systems  Inc., (PCS) in fiscal year 1999. In order to reduce debt, Rite Aid sold the  health care provider PCS to Advance Paradigm in October 2000.
section_title: Restatement Data
paragraphs: On June 1, 1999, Rite Aid filed its Form 10-K with the Securities and  Exchange Commission (SEC or Commission), which included its financial  statements for fiscal year ended February 27, 1999. This filing also  contained restatements of Rite Aid’s prior financial statements for fiscal  years 1997 and 1998, and the interim periods for 1998 and 1999. According  to the filing, the restatement followed discussions between Rite Aid and  SEC concerning an SEC review of a filed registration statement. On  October 11, 1999, following further discussions with SEC, Rite Aid  announced that it would again restate previously reported interim and  annual financial statements for 1997, 1998, and 1999.
On October 18, 1999, Martin L. Grass resigned his positions as chairman of  the board and chief executive officer (CEO) of Rite Aid. Frank Bergonzi,  who had previously stepped down as the company’s chief financial officer  (CFO), also left the company. On November 11, 1999, KPMG LLP resigned  as Rite Aid’s auditor and withdrew its report on the company’s consolidated  financial statements for the 3-year period ended February 27, 1999, stating  that it was unable to continue to rely on management’s representations.
In its quarterly report for the second quarter of fiscal year 2000, filed on  November 2, 1999, Rite Aid restated its previously reported financial  statements for the first two quarters of fiscal year 1999 and the first quarter  of fiscal year 2000. In that filing, Rite Aid indicated that additional  adjustments to its financial statements might be necessary.
According to Rite Aid’s filing with SEC, on December 5, 1999, Rite Aid hired  a new executive management team that started a process to resolve the  company’s financial reporting issues. Rite Aid’s new management team  reevaluated the accounting issues identified before December 1999 as well  as an investigation and restatement for 1998, 1999, and the first two  quarters of 2000. According to Rite Aid, after the new management team  arrived, it (1) hired a new auditor; (2) engaged a law firm, through the audit  committee of the board, to conduct an investigation of its reporting and  accounting practices with the assistance of Deloitte & Touche LLP; (3)  decided not to file additional reports with SEC until the new audit was  complete; (4) retained Arthur Andersen LLP to assist with reconciling the  books; and (5) began to develop a plan to strengthen the company’s  internal controls. Rite Aid filed the result of this review with SEC on July  11, 2000, which included restatements for 1998, 1999, and part of 2000. The  aggregate affect of these adjustments was to reduce net income by $492  million and $566 million for fiscal 1998 and 1999, respectively. Likewise, the  adjustments for 1998 and 1999 reduced retained earnings by $1.6 billion.  Rite Aid did not restate 1996 and 1997 financial statements because it  believed that it would require unreasonable cost and expense. However,  the company reported that the financial data for 1997 and 1996 should not  be relied upon.
According to SEC’s complaint filed against the company, Rite Aid’s  misstated financials were due to widespread errors resulting from faulty,  inappropriate, and misleading accounting practices. Rite Aid listed its  major adjustments to correct these practices as follows:  Adjustments to inventory and cost of goods sold included correcting  unearned vendor allowances previously recorded as a reduction to cost  of goods sold, correctly applying the retail method of accounting,  recording write downs for slow moving and obsolete inventory,  recognizing certain selling costs including promotional markdowns and  shrink in the period in which they were incurred, accruing for inventory  cutoff, and reflecting unearned vendor allowances in the inventory  balances. For example, for those vendors that did not require Rite Aid to  return damaged and outdated products, Rite Aid had the products  destroyed and reported to the vendor the quantity and dollar value of  the destroyed product and deducted the value of the destroyed products  from a future remittance to the vendor. Rite Aid allegedly inflated these  values.
Rite Aid also failed to expense the cost of the company’s stock  appreciation rights program.
Adjustments to property, plant, and equipment that were previously  capitalized to expense them in the period in which they were incurred.  The items include certain costs for repairs and maintenance, interest,  and internal software expenditures. The adjustments also include  increases to depreciation expense to reverse the effects of retroactive  changes made to the useful lives of certain assets, to depreciate assets  misclassified as construction in progress and to recognize depreciation  expense in the appropriate periods.
Adjustments to lease obligations to reflect the sale leaseback of certain  stores as financing transactions. Such transactions had previously been  accounted for as sales with corresponding operating leases. The  adjustment to correct these items resulted in the reversal of the asset  sales and the establishment of lease obligations. In addition, certain  leases previously accounted for as operating leases, were determined to  be capital leases.
Adjustments for liabilities associated with Rite Aid’s acquisition of  Thrifty PayLess in fiscal 1997 and Harco and K&B in fiscal 1998. Certain  liabilities associated with these acquisitions that had previously been  established with a corresponding increase to goodwill have either been  reduced or eliminated to correctly reflect the fair value of the assets and  liabilities acquired at the date of acquisition.
Adjustments to expense certain operating costs in the period in which  they were incurred and to record a corresponding liability for those  items not paid at the end of the period. Such costs primarily consisted of  payroll, vacation pay, incentive compensation, executive retirement  plans, scheduled rent increases, and certain insurance claims.
Adjustments to appropriately recognize charges related to store  closures in the period in which the decision, and ability, to close a store  was made. In addition, other charges not related to exiting stores and  gains from the sale of certain assets that had previously been recorded  as adjustments to the store exit liability were reflected as income or  expense in the period in which they were incurred or realized. stated that Rite Aid’s internal controls were insufficient to allow the  company’s management “to accumulate and reconcile information  necessary to properly record and analyze transactions on a timely basis.”   The letter also suggested a number of actions to improve the quality of Rite  Aid’s financial accounting and reporting functions. KPMG LLP recounted  that it informed Rite Aid on June 23, 1999, and the audit committee at the  June 30, 1999, meeting that, as a result of the issuance of the material  weakness letter, KPMG LLP would not be in a position to issue quarterly  review reports until the matters it raised were addressed and resolved.  KPMG LLP also asserted that it was no longer willing to rely on  representations made by the serving CFO at that time. The members of Rite  Aid’s audit committee and another member of the company’s board of  directors who attended the June 30, 1999, meeting deny that any such  statements were made, while KPMG LLP strongly stands behind its  recollection of the meeting. Subsequent to the meeting, Rite Aid says that  actions were taken to evaluate system needs in order to improve its  financial reporting system. On December 5, 1999, Rite Aid’s CFO was  replaced. On November 11, 1999, KPMG LLP resigned as auditor of Rite Aid  because it was unable to rely on management’s representations. KPMG LLP  also withdrew its auditor’s report dated May 28, 1999, of Rite Aid’s financial  statements. The withdrawn report and KPMG LLP’s report on Rite Aid’s  financial statements for the fiscal year ended February 28, 1998, did not  contain an adverse opinion or a disclaimer of opinion and were not  qualified or modified as to uncertainty, audit scope, or accounting  principles. However, SEC has alleged in a complaint dated June 21, 2002,  that Rite Aid’s CEO provided, and directed his staff to provide, false and  misleading information to KPMG LLP. The false information included,  among other things, Rite Aid’s books and records, unaudited financial  statements, and bank records.
Rite Aid subsequently hired Deloitte & Touche LLP as its independent  auditor.
section_title: Stock Price
paragraphs: $24.50. By October 11, 1999, when Rite Aid announced that it would once  again restate its 1997 through 1999 earnings, its stock price closed at $10.  Around this time Rite Aid also announced that it would not be able to file  its Form 10-Q on time. Overall, Rite Aid’s stock price fell almost 60 percent  from June to October and continued to fall for most of the balance of 1999.  The stock price finished 1999 at slightly above $11. On July 11, 2000, when  Rite Aid filed its Form 10-K with SEC, which included restated financial  statements for the previously restated periods, its stock closed at $6.62,  down over 20 percent from $8.38 the day before the restatement; the day  after the restatement, the stock slipped to $6 (a drop of almost 30 percent  over the 3 days). The stock price continued to decline, and when Rite Aid  filed its amended annual report in October 2000, its stock price closed at  $3.06.
section_title: Securities Analysts’ Recommendations
paragraphs: stock have continued to vary, with some analysts downgrading their  recommendations and others upgrading them.
section_title: Credit Rating Agency Actions
paragraphs: Rite Aid’s debt is rated by Moody’s Investors Service, Inc. (Moody’s) and  Standard and Poor’s rating agencies. Moody’s and Standard and Poor’s  began to lower Rite Aid’s credit rating in 1995 and made several rating  actions over the next several years. In 1996 and 1998, Moody’s confirmed  Rite Aid’s debt, which indicated that its debt offered adequate financial  security while Standard and Poor’s took no action. In June 1999, 3 days  after the restatement of its 1997 to 1999 financial statements, Moody’s  confirmed Rite Aid’s rating but changed its outlook to negative, while on  June 14, 1999, almost 2 weeks after the June 1, 1999, restatement, Standard  and Poor’s lowered its rating. In September 1999, the month before the  revised restatement, Moody’s placed Rite Aid’s rating on review for  possible downgrade. On October 1, 1999, a week before the restatement of  the previously restated financial statements, Moody’s downgraded Rite  Aid’s rating, indicating that certain protective elements might be lacking  over time, and rated its outlook as negative. Standard and Poor’s took  similar action days before the October 11, 1999, restatement. Within weeks,  Moody’s and Standard and Poor’s downgraded Rite Aid’s debt again  indicating that its long-term debt was of questionable financial security and  maintained their negative outlook. One month later, Moody’s lowered Rite  Aid’s rating again indicating that it offered poor financial security and the  outlook remained negative. In 2000, Moody’s and Standard and Poor’s  downgraded Rite Aid’s rating even further.
section_title: Legal and Regulatory Actions Taken
paragraphs: On March 15, 1999, a securities class-action lawsuit was filed against Rite  Aid, its directors, officers, and outside auditor, KPMG LLP. Rite Aid was  accused of making materially false and misleading statements and  artificially inflating the price of Rite Aid’s common stock. In November  2001, Rite Aid agreed to pay $45 million in cash and about $150 million in  stock to its shareholders to settle the suit. Although shareholders settled  with the company, there are still outstanding civil cases against KPMG LLP,  Mr. Martin L . Grass and Mr. Frank M. Bergonzi. former president and chief operating officer (COO). Neither Rite Aid nor  Mr. Noonan admitted nor denied SEC’s findings. According to the cease- and-desist order, SEC alleged that Rite Aid’s former management team  engaged in financial fraud that materially overstated the company’s net  income for fiscal years 1998, 1999, and the first quarter of 2000. SEC further  alleged that Rite Aid’s former senior management failed to disclose  material information, including related-party transactions, in proxy and  registration statements, and a Form 8-K filed in February 1999.
SEC alleged that Rite Aid violated the reporting, books and records, and  internal controls provisions of the Securities Exchange Act of 1934  (Exchange Act). According to SEC, Rite Aid’s internal books, records, and  accounts reflected numerous transactions that were invalid or without  substantiation, had no legitimate business purpose, and were recorded in  violation of generally accepted accounting principles (GAAP). Moreover,  SEC charged that from at least 1997 to July 11, 2000, all of the annual and  quarterly reports that Rite Aid filed with SEC contained misleading  financial statements. As a result, Rite Aid violated Sections 13(a) and  13(b)(2)(A) of the Exchange Act and Rules 12b-20, 13a-1, and 13a-13  thereunder. SEC further alleged that Rite Aid's system of internal  accounting controls was not designed to provide reasonable assurances  that transactions were recorded as necessary to permit preparation of  financial statements in conformity with GAAP or to maintain the  accountability of assets; hence, Rite Aid’s system of internal accounting  controls failed to prevent, and facilitated, the improper accounting  practices described above. As a result, SEC charged that Rite Aid violated  Section 13(b) of the Exchange Act and Rule 13(b)(2)(B) thereunder. unauthorized markdowns. Based on these activities, SEC charged that Mr.  Noonan committed or caused violations of Sections 10(b) of the Exchange  Act and Rule 10b-5 thereunder, and caused violations by Rite Aid of  Sections 13(a) and 13(b)(2) of the Exchange Act and Rules 12b-20, 13a-1,  and 13a-13 thereunder. Based on the cooperation extended to SEC, SEC  deemed it appropriate to issue a cease-and-desist order.
In June 2002, SEC filed a separate complaint against Mr. Bergonzi, Rite  Aid’s CFO from March 1995 to January 1999; Franklin C. Brown, executive  vice president and chief legal counsel from April 1993 to July 1997 (served  as vice chairman of the board until May 2000); and Mr. Grass, CEO and  chairman of the board from March 1995 until his resignation on October 18,  1999. According to the complaint, Messrs. Bergonzi, Brown, and Grass  were controlling persons of Rite Aid for the purposes of Section 20(a) of  the Exchange Act. According to SEC’s complaint, Messrs. Bergonzi, Brown,  and Grass received ill-gotten gains in the form of performance-related cash  bonuses totaling more than $1.5 million The SEC complaint alleged that at the direction of Mr. Bergonzi, Rite Aid’s  accounting staff recorded numerous and varied types of accounting entries  that had no basis or false substantiation and/or were in violation of GAAP.  SEC stated that these transactions were generally made at the end of or just  after a quarterly or yearly period. SEC charged all three with financial  fraud, fraudulent periodic reports and registration statements; fraudulent  proxy statements and press releases; fraudulent misrepresentations in  connection with stock pledges (violations of Section 17(a) of the Securities  Act of 1933, and Section 10(b) of the Exchange Act, and Rule 10(b)-5  thereunder); falsification of corporate books and records and  circumvention of internal controls (violations of Section 13(b)(5) of the  Exchange Act, and Rule 13b2-1 thereunder); misrepresentations to  accountants (violations of Exchange Act Rule 13b2-2, 17 C.F.R. §240.13b2- 2); periodic reporting violations (violations of Sections 13(a) of the  Exchange Act, and Rules 12b-20 and 13a-1, thereunder); and corporate  recordkeeping and internal control violations (Section 13(b)(2) of the  Exchange Act). Mr. Bergonzi was also charged as a controlling person with  quarterly reporting violations (violations of Section 13(a) of the Exchange  Act, and Rules 12b-20 and 13a-13, thereunder). Mr. Grass and Mr. Brown, as  controlling persons of Rite Aid, were also charged with current reporting  violations and proxy statement violations (Sections 13(a) of the Exchange  Act, and Rules 12b-20 and 13a-11 thereunder), and Section 14(a) of the  Exchange Act, and Rule 14a-9(a) thereunder.
SEC is seeking against Messrs. Bergonzi, Brown, and Grass a permanent  injunction, disgorgement of ill-gotten gains, civil money penalties, and  officer and director bars.
The U.S. Attorney of the Middle District of Pennsylvania also announced  related criminal charges against Messrs. Bergonzi, Brown, and Grass  including mail fraud, wire fraud, conspiracy and lying to SEC.
section_title: Safety-Kleen Corporation
subsections: section_title: Business Overview
paragraphs: Safety-Kleen Corporation (Safety-Kleen) is an industrial and hazardous  waste management company in North America. The company provides a  range of services designed to collect, transport, process, recycle, or dispose  of hazardous and nonhazardous industrial and commercial waste. As of  May 1, 2001, the company had over 9,600 employees.
On June 9, 2000, Safety-Kleen and 73 of its domestic subsidiaries  voluntarily filed for protection under Chapter 11 of the U.S. Bankruptcy  Code. Safety-Kleen is in the process of reorganizing.
section_title: Restatement Data
paragraphs: According to Safety-Kleen’s filings with the Securities and Exchange  Commission (SEC or Commission), on March 6, 2000, Safety-Kleen’s board  of directors received information alleging possible accounting irregularities  that may have affected previously reported financial results. On March 6,  2000, the company announced that it had initiated an internal investigation  of its previously reported results and certain of its accounting policies and  practices. Specifically, the investigation focused on accounting  irregularities, including improper revenue recognition, inappropriate  recognition of gain on derivatives transactions, inappropriate capitalization  of costs, and insufficient liability accruals. The board’s independent  directors headed the effort and hired Shaw Pittman and Arthur Andersen  LLP to conduct the investigation. The investigation ultimately led to the  July 9, 2001, restatement of previously reported earnings for fiscal years  1997 through 1999, which decreased its previously reported earnings by  $534 million (table 18). the periods in question. On March 8, 2000, PwC notified the company by  letter that it was withdrawing its previously issued reports on the financial  statements of the company for the fiscal years ending August 31, 1997,  1998, and 1999. PwC further stated that such reports should no longer be  relied upon or associated with the company’s financial statements for such  years. On August 1, 2000, Safety-Kleen dismissed PwC and engaged Arthur  Andersen LLP as its new independent accountant.
section_title: Stock Price
paragraphs: The company’s common stock traded on the New York Stock Exchange  (NYSE) under the ticker symbol SK until it was suspended from trading in  June 2000 and was ultimately delisted on July 28, 2000. As of June 15, 2000,  the company now trades over the counter under the ticker symbol SKLNQ.  The company’s stock price generally declined from December 1999 through  February 2000 (fig. 21). Specifically, the stock price increased over 20  percent on December 17, 1999, following an analyst’s recommendation  earlier in the week. But this was quickly reversed as Safety-Kleen reported  earnings that were below market expectations on January 5, 2000, and the  stock price fell almost 30 percent. The trend remained negative through  February 2000. Then on March 6, 2000, the date of the announcement of the  preliminary internal investigation, Safety-Kleen’s stock price fell 45 percent  from the previous day’s close of $3.63, to close at $2.00. On March 13, 2000,  the company announced that it had been advised by SEC staff that a formal  investigation of the company had been initiated. The next day, the  company’s stock price fell once again to $1.06 per share, from its previous  trading day’s closing price of $2.06 per share. The trend generally remained  negative, with the stock remaining under $1 per share until it was  suspended from NYSE at $0.625 after the close on June 9, 2000.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on historical analyst recommendations that we were able to identify,  prior to the March 6, 2000, restatement announcement, four firms rated  Safety-Kleen. One recommended it as a moderate buy and the other three  recommended a hold. After the restatement, the same firms changed the  company’s recommendation from moderate buy to hold. Also, one firm  lowered its recommendation on Safety-Kleen from market outperform to  market perform.
section_title: Credit Rating Agency Actions
paragraphs: Moody’s Investors Service, Inc. (Moody’s) and Standard and Poor’s rated  Safety-Kleen’s debt. On May 7, 1999, before the restatement, Moody’s  assigned rating for Safety-Kleen indicated that its debt generally lacked  desirable characteristics and assurance of interest and principal payments  or maintenance of other terms of the contract over any long period of time.  However, the company’s outlook was considered stable. On September 13,  1999, before the restatement, Standard and Poor’s assigned Safety-Kleen a  slightly higher rating but rated the company’s outlook as negative. On the  announcement date of March 13, 2000, Standard and Poor’s downgraded  the company’s rating, which indicated that it considered Safety-Kleen’s  obligations to be more vulnerable to nonpayment than previously. On  March 10, 2000, Moody's changed its previous rating on Safety-Kleen’s  outlook from stable to negative and lowered Safety-Kleen’s credit ratings  for most of its debt. Subsequently, Standard and Poor’s downgraded Safety- Kleen’s debt rating on April 18, 2000, May 16, 2000, and ultimately removed  the company from its rating list on July 26, 2000, and classified it as “not  rated.”
section_title: Legal and Regulatory Actions Taken
paragraphs: On June 9, 2000, Safety-Kleen and 73 of its domestic subsidiaries  voluntarily filed for protection under Chapter 11 of the U.S. Bankruptcy  Code.
In the Spring of 2000, Safety-Kleen and certain officers and directors were  named in various class actions brought by holders of its securities. The  lawsuits charge, among other things, that the defendants made or caused  materially false and misleading financial statements regarding the  company’s financial condition. Cases brought by shareholders were  consolidated. Certain bond holders subsequently filed a class action  against the company and PwC on the same grounds.
In March 2000, shortly after the company’s announcement of an internal  investigation of its previously reported results and certain of its accounting  policies and practices, Safety-Kleen announced that SEC had initiated a  formal investigation into the company. The U.S. Attorney for the Southern  District of New York also initiated an investigation into Safety-Kleen for  accounting irregularities. According to Safety-Kleen, as of March 28, 2002,  the company has responded to subpoenas issued by SEC and the grand jury  in New York and is cooperating with both ongoing investigations.
section_title: SeaView Video Technology, Inc.
subsections: section_title: Business Overview
paragraphs: SeaView Videdo Technology, Inc., (SeaView) manufactures and sells  underwater video cameras, lighting, and accessories for the marine,  consumer retail, and commercial markets. It is also engages in the  development, marketing, and sale of proprietary video security network  devices and consumer electronic products that utilize patented  technologies, licensed by the company, to retailers, commercial businesses  and original equipment manufacturers throughout the United States. The  company was originally incorporated as Gopher, Inc., in Utah on April 16,  1986. In order to change its domicile, Gopher, Inc., was reorganized under  the laws of Nevada on December 30, 1993. On March 24, 1999, the company  entered into a reorganization agreement with SeaView Underwater  Research, Inc., a privately held Florida corporation. On February 2, 2000,  the company changed its name to SeaView Video Technology, Inc. As of  December 31, 2001, SeaView had net revenues of $732,401 and employed  about 20 people.
section_title: Restatement Data
paragraphs: SeaView made two restatement announcements. The first restatement  announcement was made on March 19, 2001, during an internal review of  fiscal year 2000 operations that was undertaken by its newly hired chief  financial officer (CFO). SeaView’s original Form 10-Q for the quarters  ended June 30 and September 30, 2000, incorrectly included as revenues  and accounts receivable approximately $1.2 million and $2.3 million,  respectively, of purchase orders that were received for new security  camera products but were not shipped to the customers in time. After the  restatement, the second and third quarter net revenues were approximately  $335,120 and $212,592, respectively (table 19). The restatement also  included a reduction in liabilities, totaling approximately $849,235, which  were previously recorded relating to the purchase orders that were  erroneously included as revenues. This restatement resulted in a reduction  of net income by approximately $966,957 for the quarter ended June 30,  2000, and by approximately $871,639 for the quarter ended September 30,  2000. Net income was overstated by 468 percent during the 6-month period.  The financials were restated on April 16, 2001.
Appendix XV SeaView Video Technology, Inc.
Appendix XV SeaView Video Technology, Inc. internal control deficiencies, several unspecified audit adjustments were  proposed and recorded to SeaView’s financial statements for the fiscal year  ended December 31, 2000.
section_title: Stock Price
paragraphs: SeaView’s common stock trades over-the-counter under the ticker symbol  SEVU. The stock traded at over $11 per share in early November 2000, but  it fell sharply to around $2 by January 2001. According to press reports, the  announcement of complications in its negotiations to sell $80 million worth  of equipment preceded the decline; and in a letter to shareholders,  SeaView’s CEO blamed the sharp drop on short sellers. SeaView’s stock  price recovered slightly. On February 20, 2001, the CEO stepped aside. On  March 19, 2001, the stock price fell nearly 33 percent after SeaView  announced that it would have to restate the second and third quarter  financial results from the year 2000 (fig. 22). The stock price fell for much  of 2001, generally trading below $0.50 per share by December 2001. The  stock price suddenly peaked at $1.30 on October 11, 2001, several days  after the death of the former CEO. The stock price then continued to fall  and by SeaView’s April 16, 2002, announcement that it would once again  restate its financial statements, the stock price closed at $0.22 per share.  From the time of SeaView’s restatement announcement on March 19, 2001,  to the issuance of its second restatement on April 16, 2002, SeaView’s stock  price fell over 80 percent from almost $1.12 to $0.22. As of June 28, 2002,  the stock closed at $0.20.
Appendix XV SeaView Video Technology, Inc.
section_title: Securities Analysts’ Recommendations
paragraphs: No information found.
Appendix XV SeaView Video Technology, Inc.
section_title: Credit Rating Agency Actions
paragraphs: No information found.
section_title: Legal and Regulatory Actions Taken
paragraphs: SeaView was subject to shareholder and regulatory action related to its  accounting practices. SeaView was a defendant in a consolidated class-  action lawsuit in the U. S. District Court for the Middle District of Florida  against the company and Mr. McBride, SeaView’s former CEO.
Beginning in May 2001, plaintiffs filed five almost identical class-action  lawsuits against SeaView and the company’s president and CEO, Mr.  McBride alleging that, among other things, from March 30, 2000, to March  19, 2001, SeaView and Mr. McBride misstated the company’s sales and  revenue figures; improperly recognized revenues; misrepresented the  nature and extent of the company’s dealer network; falsely touted  purported sales contracts and agreements with large retailers;  misrepresented the company’s ability to manufacture, or to have  manufactured, its products; and misrepresented SeaView’s likelihood of  achieving certain publicly announced sales targets. On July 24, 2001, those  lawsuits were consolidated and the consolidated amended class-action  complaint was filed in December 2001.
On July 1, 2002, SeaView and the lead counsel for the plaintiffs executed a  memorandum of understanding, setting forth the basic terms of a  settlement in the consolidated class-action lawsuit. The principal terms of  the settlement require SeaView to tender to the plaintiffs, after the effective  date of the settlement, 6,000,000 shares of SeaView common stock, which  can be freely traded for the benefit of the class. SeaView will also pay up to  $125,000 for costs incurred by the plaintiffs in this litigation, plus costs of  settlement notice and administration.
According to SeaView’s 2001 annual report, SEC initiated an investigation  into unspecified matters related to SeaView’s financial results and common  stock performance during 2000. To date, SEC has not initiated action  against SeaView or its officials.
section_title: Shurgard Storage Centers, Inc.
subsections: section_title: Business Overview
paragraphs: As of December 31, 2001, Shurgard Storage Centers, Inc. (Shurgard) is one  of the largest owners and operators in the self-storage industry, with 479  properties under management in 21 states as well as Belgium, Denmark,  France, the Netherlands, United Kingdom, and Sweden. With more than  1,000 employees, it is organized as a fully integrated real estate investment  trust, which means the company develops, acquires, owns, leases, and  manages its own storage centers. As of December 31, 2001, the company  had revenues of $232.6 million and real estate operations accounted for  about 97 percent of total revenues.
section_title: Restatement Data
paragraphs: On November 8, 2001, Shurgard announced the postponement of its  previously announced third-quarter earnings. Its independent auditor,  Deloitte & Touche LLP (Deloitte), informed the audit committee of the  board of directors of its change in advice regarding the accounting  treatment of four joint ventures the company had entered into since 1998.  According to Deloitte, the proposed change in accounting treatment would  require restatement of the company’s financial statements for 1998, 1999,  2000, and the first 6 months of 2001. According to Shurgard officials, after  notification of the auditor’s change in opinion regarding the accounting  treatment for the development joint ventures, the company submitted the  proposed new accounting treatment to the Office of the Chief Accountant  (OCA) of the Securities Exchange Commission (SEC).  Prior to the  company filing restated financial statements, OCA advised the company  that it did not object to the proposed new accounting treatment for the  joint ventures. The company believed that the restatement would result in a  material adverse impact on previously reported income. On December 4,  2001, Shurgard announced that it had amended its annual report for fiscal  year ended December 31, 2000 (table 20).
Appendix XVI Shurgard Storage Centers, Inc. (Dollars in millions)
Shurgard agreed with its independent auditor that the four joint venture  arrangements entered into from 1998 to 2000 should have been accounted  for as financing arrangements from inception. However, these  arrangements were previously included in Shurgard’s consolidated  statements and the ventures partners’ share of the operating results were  reflected as minority interest in the consolidated statements. The excess of  the repurchase price of the joint venture properties over the original sales  prices to the joint venture was capitalized in a manner similar to the  acquisition of minority interests. It was also determined that the company  had not appropriately changed its method of accounting for the  participation features included in a mortgage loan assumed.
Accounting/Audit Firm Deloitte was the company’s independent auditor during the relevant period.
Shurgard’s stock is traded on the New York Stock Exchange (NYSE) under  the ticker symbol SHU. The stock price trended slightly higher from May  2001 until November 2001 (fig. 23). On November 7, 2001, the date before  the restatement announcement, the stock price closed at $30.76. On the day  of the restatement announcement, the stock price closed at $29.38, a loss of  around 4.5 percent. The following day, the stock price closed at $29.78. The  announcement of the restatement appeared to have little longer-term  impact on the stock price, as it continued its upward trend through April  2002 and closed in the mid-thirties.
Appendix XVI Shurgard Storage Centers, Inc.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on available historical securities analysts rating information we  identified, we found that five analysts that covered Shurgard from 2000  through 2001. A few months prior to the November 8, 2001, restatement  announcement, one analyst upgraded the company’s rating from neutral to  outperform. One analyst downgraded Shurgard’s rating (from hold to sell)  on November 8, 2001, following its restatement announcement.
Appendix XVI Shurgard Storage Centers, Inc.
section_title: Credit Rating Agency Actions
paragraphs: The company’s securities are rated by Moody’s Investors Service, Inc.  (Moody’s) and Standard and Poor’s. On April 29, 1997, Standard and Poor’s  rating of Shurgard’s senior unsecured debt and preferred stock indicated  that the obligations generally have adequate protection measures, but that  adverse economic conditions or changing circumstances are more likely to  lead to a weakened capacity of the company to fulfill its financial  commitment on the debt. On February 14, 2001, Shurgard’s debt received a  medium-grade debt rating from Moody’s, which indicated that the bonds  are neither highly protected nor poorly secured and are ranked mid-range.  In addition, principal and interest payments appear adequate for the  present, but the long-term certain protective elements may be lacking. This  rating remained unchanged throughout 2001. As of August 2002, Standard  and Poor’s had not changed its rating since 1997.
section_title: Legal and Regulatory Actions Taken
paragraphs: To date, there has been no civil or regulatory action taken with regard to  Shurgard’s restatement announcement.
section_title: Sunbeam Corporation
subsections: section_title: Business Overview
paragraphs: Sunbeam Corporation (Sunbeam) designs, manufactures, markets and  supplies branded consumer products. The company's product categories  include appliances, health care, personal care and comfort, and camping  products. Appliances include mixers, blenders, food steamers, toasters,  irons and garment steamers. The significant trademarks of the company  are Sunbeam, Coleman, Oster, Mr. Coffee, Health O Meter, First Alert,  Campingaz, and Powermate. Outdoor leisure accounted for 40 percent of  1999 revenues; household appliances, 35 percent; and international sales,  25 percent. On February 6, 2001, Sunbeam filed for bankruptcy protection  under Chapter 11. On September 9, 2002, a reorganization plan was filed  with the bankruptcy court and a hearing for the company to emerge from  bankruptcy will be held on November 4, 2002.
section_title: Restatement Data
paragraphs: Around year-end 1996, Sunbeam created accounting reserves, which  increased Sunbeam’s reported loss for 1996. According to the Securities  and Exchange Commission (SEC or Commission) complaint, filed May 15,  2001, these reserves were then allegedly used to inflate income in 1997,  thus contributing to the false picture of a rapid turn around.
On June 30, 1998, Sunbeam announced that the audit committee of the  board of directors would conduct a review of Sunbeam’s prior financial  statements. Sunbeam also announced that Deloitte & Touche LLP had been  retained to assist the audit committee and Arthur Andersen LLP (Arthur  Andersen) in its review of Sunbeam’s prior financial statements. On August  6, 1998, Sunbeam announced that the audit committee had determined that  Sunbeam would be required to restate its financial statements for 1997, the  first quarter of 1998 and possibly 1996, and that the adjustments, while not  then quantified, would be material. Sunbeam announced on October 20,  1998, the restatement of its financial results for a 6-quarter period from the  fourth quarter of 1996 through the first quarter of 1998. The restatement  reduced the 1996 net loss by $20 million (9 percent of reported losses); it  reduced 1997 net income by $71 million (65 percent of reported earnings);  and it increased 1998 earnings by $10 million (21 percent of reported  losses). See table 21.
The incorrectly reported numbers affected numerous accounts. Sunbeam  concluded, based upon its review, that for certain periods revenue was  incorrectly recognized (principally “bill and hold” and guaranteed sales  transactions), certain costs and allowances were not accrued or were  incorrectly recorded (principally allowances for sales returns, co-op  advertising, customer deductions and reserves for product liability and  warranty expense), and certain costs were incorrectly included in and  charged to restructuring, asset impairment and other costs.
Accounting/Audit Firm Arthur Andersen was the independent auditor and wrote unqualified  opinions for Sunbeam, although Arthur Andersen’s engagement partner,  Phillip Harlow, was allegedly aware of Sunbeam’s accounting improprieties  and disclosure failures. On May 15, 2001, Mr. Harlow was charged with  fraud along with Sunbeam’s former senior management team, led by Mr.  Albert J. Dunlap, chairman of the board. The suit is still pending. Details are  provided in the “Legal and Regulatory Actions Taken” section of this case.
section_title: Stock Price
paragraphs: Sunbeam stock was traded on the New York Stock Exchange (NYSE) under  the ticker symbol SOC. However, on February 6, 2001, NYSE suspended  trading of Sunbeam stock and subsequently delisted the company in 2001.  It currently trades over the counter as SOCNQ. On March 4, 1998, Sunbeam  stock hit a high of $52 per share (fig. 24). The stock price fell over 9 percent  on March 19 after Sunbeam issued a profit warning; then on April 3, 1998,  the stock price fell another 25 percent to $34 after Sunbeam issued a  second profit warning. The stock continued to fall through April and May  1998. Following a June 8, 1998, article in Barron’s suggesting that Sunbeam  engaged in “accounting gimmickry,” the reports of an SEC inquiry, and the  firing of Mr. Dunlap, the stock declined from over $20 per share to under $10 per share by July 1998. By the date of the financial restatement  announcement on June 30, 1998, the stock price closed at $10.375. The  stock price continued its generally downward trend in late 1998.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on historical analysts’ recommendations we were able to identifiy, in  mid-1997, in the middle of Sunbeam’s stock price appreciation, analysts  were touting Sunbeam as a future leader in the industry. One analyst’s  earnings estimate was $1.55 per share in 1997 and $2.25 per share in 1998.  Analysts speculated that Sunbeam’s earnings could reach $3 per share in  1999. The actual earnings based on SEC filings were $0.62 per share, a loss  of $7.99 per share, and a loss of $2.97 for 1997, 1998, and 1999, respectively.
Based on news in April 1998 that sales would be down for the first quarter  of 1998, one firm downgraded the company’s stock. After the restatement  warning in June 1998, another firm downgraded its rating to a sell.
section_title: Credit Rating Agency Actions
section_title: Legal and Regulatory Actions Taken
paragraphs: On February 6, 2001, Sunbeam filed for Chapter 11 bankruptcy protection  under U.S. Bankruptcy Court.
In January 1999, a consolidated class-action lawsuit against Sunbeam, its  auditor, Arthur Andersen, and Sunbeam principals was filed in the U.S.  District Court for the Southern District of Florida. The complaint alleged  that, among other things, from March 19, 1998, through April 3, 1998,  Sunbeam and the chief executive officer (CEO) of the company, Albert  Dunlap, violated the federal securities laws (Sections 10(b) and 20(a) of the  Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5) by, among  other things, misrepresenting and/or omitting material information  concerning the business operations, sales and future prospects of the  company. The suit reached final settlement on August 9, 2002. Sunbeam  was not a party in the final settlement due to its previous bankruptcy filing.  The total settlement amount was $141 million. The largest portion came  from Sunbeam’s accountant at the time, Arthur Andersen, which agreed to  pay $110 million in April 2001. Since that time the money has been held in  escrow earning interest, pending the final settlement with Sunbeam. Mr.  Dunlap, the former CEO, also paid $15 million. Another portion of the  settlement came from the Chubb Group’s Executive Risk Indemnity Inc.  ($13.5 million), and Great American Insurance Group ($2 million). Both  firms had policies covering Sunbeam officials.
On May 15, 2001, SEC filed a civil action in the U.S. District Court of Miami  against five former officers of Sunbeam (Mr. Dunlap, chairman and CEO;  Russell Kersh, chief financial officer (CFO); Robert Gluck, chief accounting  officer; Donald R. Uzzi and Lee B. Griffith, former vice presidents) and  Phillip Harlow, former Arthur Andersen engagement partner. On May 15,  2001, SEC also instituted an administrative proceeding against Sunbeam,  which was concurrently settled. The complaint charged Sunbeam with  filing false and misleading reports with the Commission from the fourth  quarter of 1996 through the first quarter of 1998. Sunbeam consented to the  entry of a cease-and-desist order prohibiting future violations of the  antifraud, reporting, books and records, and internal controls provisions of  the securities laws. Finally, an administrative action was also filed and  concurrently settled against David Fannin, former Sunbeam general  counsel, for participating in drafting misleading press releases on the  company’s operations.
The civil complaint alleges that Messrs. Dunlap and Kersh, together with  others, employed improper accounting techniques and undisclosed  nonrecurring transactions to misrepresent Sunbeam’s results of operations.  According to SEC’s complaint, through this conduct, Messrs. Dunlap and  Kersh, personally and as controlling persons within the meaning of Section  20(a) of the Exchange Act, and Messrs. Gluck and Griffith violated or aided  and abetted violations of Section 17(a) of the Securities Act of 1933 and  Sections 10(b), 13(a), 13(b)(2)(A), 13(b)(2)(B) and (with the exception of  Mr. Dunlap) 13(b)(5) of the Exchange Act and Rules 10b-5, 12b-20, 13a-1,  13a-13, 13b2-1, and 13b2-2 thereunder; and Messrs. Uzzi and Harlow  violated or aided and abetted violations of all of the above provisions,  except Exchange Act Rule 13b2-2. SEC seeks, permanent injunctions  against all defendants for future violations of the above provisions of the  securities laws and civil penalties and, in the case of Messrs. Dunlap, Kersh,  Gluck, and Uzzi, seeks permanent bars from acting as an officer or director  of any public company.
On September 4, 2002, Messrs. Dunlap and Kersh agreed to settle their  cases with SEC, while not admitting or denying guilt. Mr. Dunlap paid  $500,000 in the settlement and Mr. Kersh paid $200,000. Both agreed to be  barred permanently from serving as an officer of a public company. The  civil suit is still pending against the other officers, and a trial is set for mid- January 2003.
section_title: Thomas & Betts Corporation
subsections: section_title: Business Overview
paragraphs: Thomas & Betts Corporation (Thomas & Betts) is a designer, manufacturer,  and marketer of electrical components and systems for connecting,  fastening, protecting, and identifying wires, components, and conduits. As  of December 31, 2000, the company had reported net sales of $1.76 billion  and it employed approximately 14,000 people.
section_title: Restatement Data
paragraphs: Thomas & Betts announced planned restatements to its financial  statements in 1999 and again in 2000. First, on October 26, 1999, Thomas &  Betts announced that it might restate the first and second fiscal quarters  1999 and prior fiscal years. Upon review with its independent auditors,  KPMG LLP, and after review and consultation with the audit committee of  its board of directors, Thomas & Betts decided to restate its previously  issued financial statements for quarters ended April 4, 1999, and October 3,  1999. In November 1999, Thomas & Betts filed its Form 10-Q with the  Securities and Exchange Commission (SEC or Commission). On December  20, 1999, Thomas & Betts announced that it has completed its previously  reported review of certain accounting matters, which has largely resulted  from or had been identified by conversions of its worldwide financial  systems. As a result of that review, the company concluded, with the  concurrence of KPMG LLP that attribution of adjustments to the first and  third quarters of 1999 as previously announced should be modified. That  modification resulted in a $2.2 million increase in first-quarter net earnings  and a $3.1 million decrease in third-quarter net earnings from amounts  disclosed in the company’s Form 10-Q filed November 17, 1999.  Consequently, a revised Form 10-Q (amended) was filed for the first and  third quarters reflected net income for the first quarter of 1999 of $34.5  million and net income for the third quarter of 1999 of $46.9 million. the appropriate reporting periods. Although the review was ongoing,  Thomas & Betts announced that it planned to restate its financial  statements for 1999. Since a portion of these special charges recorded in  the second quarter 2000 were attributable to fiscal 1999, adjustments had to  be made in fiscal 1999 and the second quarter of 2000. Upon completion of  the review, on March 29, 2001, the company filed its Form 10-K for fiscal  year 2000 with SEC, which contained restated financials for fiscal years  1996 through 1999, all four quarters of fiscal 1999, and the first two quarters  of fiscal 2000 (see table 22).
section_title: Stock Price
paragraphs: previous close of $46.50, after reporting third quarter earnings that were  consistent with analysts’ expectations and announcing the restatement.  The stock price generally trended downward over the next month, ending  November 1999 at $41.00. On December 15, 1999, a brokerage firm  downgraded Thomas & Betts sending the stock price down almost 30  percent from $39.188 to $27.875.
On June 19, 2000, Thomas & Betts reported that it expected second quarter  earnings to come in significantly below the current analyst consensus of  $0.74 per share, excluding an anticipated gain on the sale of the company’s  electronic original equipment manufacturer business. The company stated  that the expected earnings decrease would primarily result from a likely  increase in provisions for sales and accounts receivable deductions. On  June 19, 2000, the stock price closed at $26.81, and the following day closed  at $19.18, a decline of more than 28 percent (fig. 26). On August 14, 2000,  the company’s stock price closed at $20.06. By the end of that week, it  closed at $20.00, virtually unchanged. On Monday of the following week  (August 21, 2000), Thomas & Betts announced its planned restatement, and  its stock price closed at $19.38. The next day, it declined further to $18.94, a  decline of about 5 percent over these 3 days.
section_title: Securities Analysts’ Recommendations
paragraphs: restated financials were filed with SEC, one brokerage firm downgraded its  recommendation to market perform.
section_title: Credit Rating Agency Actions
paragraphs: Thomas & Betts’s debt is rated by Moody’s Investors Service, Inc. (Moody’s)  and Standard and Poor’s. In August 2000, Moody’s debt rating for the  company indicated that Thomas & Betts’s obligations were neither highly  protected nor poorly secured and lacked outstanding investment  characteristics. From August 2000 and throughout 2001, Moody’s rating for  the corporate bond remained unchanged.
In December 2000, Standard and Poor’s downgraded Thomas & Betts’  corporate credit rating indicating that the company has adequate capacity  to meet its financial commitments, but that adverse economic conditions  or changing circumstances are more likely to lead to a weakened capacity  of the company to meet its financial commitments.
section_title: Legal and Regulatory Actions Taken
paragraphs: Thomas & Betts was subject to shareholder lawsuits and regulatory action  related to its accounting practices. During 2000 certain shareholders of the  Corporation filed five separate class-action suits in the U.S. District Court  for the Western District of Tennessee against Thomas & Betts, Clyde R.  Moore, former CEO, and Fred R. Jones, former CFO. The complaints allege  fraud and violations of Section 10(b) and 20(a) of the Securities Exchange  Act of 1934 (Exchange Act) and SEC Rule 10b-5. The plaintiffs allege that  purchasers of Thomas & Betts common stock between April 28, 1999, and  August 21, 2000, were damaged when the market value of the stock  dropped by nearly 29 percent on December 15, 1999; dropped nearly 26  percent on June 20, 2000; and fell another 8 percent on August 22, 2000. An  unspecified amount of damages is sought.
On December 12, 2000, all five of the actions were consolidated into a  single action. The consolidated complaint essentially repeats the  allegations in the earlier complaints. On April 9, 2002, the U.S. District  Court for the Western District of Tennessee entered an order granting in  part and denying in part the company’s Motion to Dismiss in the  shareholder class-action lawsuit. The court dismissed allegations against  Mr. Moore, former CEO, and Mr. Jones, former CFO, for violations of  Section 10(b) and Rule 10b-5 under the Exchange Act. The court also  granted KPMG LLP’s Motion to Dismiss in a parallel shareholder class- action lawsuit.
On July 24, 2002, the court refrained from establishing a schedule for  pretrial discovery in this case. The Court instead ordered that the parties  enter into formal mediation proceedings immediately. A formal order  controlling the mediation is expected in the near future.
Soon after issuing the August 21, 2000, press release announcing  substantial charges ($223.9 million) in the second fiscal quarter of 2000,  Thomas & Betts received an informal request for information regarding the  basis of the charges from SEC. According to the company’s fiscal year 2000  annual report, on January 4, 2001, SEC initiated a formal order of  investigation concerning the company’s financial reporting and other  matters. To date, no additional action has been taken.
section_title: Waste Management, Inc.
subsections: section_title: Business Overview
paragraphs: Waste Management, Inc., was created in 1998 when USA Waste Services,  Inc. of Houston acquired the Chicago based Waste Management, Inc., and  then adopted the name Waste Management.  Waste Management provides  integrated waste management services, consisting of collection, transfer,  disposal, recycling, and resource recovery services. In addition, it provides  hazardous waste services to commercial, industrial, municipal and  residential customers. Waste Management serves about 27 million  municipal, business, and residential customers in the United States,  Canada, and Puerto Rico. It has a network of 600 landfills and transfer  stations, 1,400 collection centers, as well as disposal and recycling services.  To focus on its core North American operations, Waste Management has  sold off its international solid- and hazardous-waste management  businesses. For the fiscal year ended December 31, 2001, sales were $11.32  billion. Net income before extraordinary items and accounting changes  totaled $503 million.
section_title: Restatement Data
paragraphs: Appendix XIX Waste Management, Inc. in its financial statements for 1996 and the first 9 months of 1997, although  these reclassifications and adjustments had no impact on 1996 earnings  and an insignificant impact on 1997 earnings, according to the company. On  January 5, 1998, the company announced that, in response to a request  from the Securities and Exchange Commission’s (SEC or Commission)   Division of Corporation Finance, it had agreed to file amended reports in  Forms 10-K and 10-Q for the year ended December 31, 1996, and for the 3-month periods ended March 31, 1997, and June 30, 1997. The amended  reports were to contain restated financial statements and revised  management discussion and analysis reflecting information contained in its  Form 10-Q for the 3 months ended September 30, 1997. The company also  stated that the ongoing review would likely necessitate revisions to  previous classifications of various items of income and expense reported in  its 1994 and 1995 financial statements. Ultimately, the company announced  a financial statement restatement on January 29, 1998, and filed an  amended Form 10-K on February 24, 1998, with SEC. Earnings were  restated for the period from 1992 to 1997, totaling $1.3 billion (table 23).  The incorrectly reported numbers were primarily expense related.  Depreciation expense was misstated due to incorrect vehicle, equipment,  and container salvage value assumptions and capitalized interest relating to  landfill construction projects was misstated.
On August 3, 1999, after the acquisition of Chicago-based Waste  Management by USA Waste Services, the new company, Waste  Management, which was under new senior management, announced that  an internal audit might cause it to revise first quarter 1999 results. It singled  out $95 million reported as operating income that instead should  potentially have been calculated as nonrecurring items. On August 16, 1999,  the company filed its Form 10-Q including the results of its review,  determining that it had incorrectly reported $30.2 million as first quarter  pretax income, which instead should have been reflected over the life of  certain landfill assets. Including charges, earnings for the 3 months ended  March 31 were revised to $346.7 million, compared with $364.3 million as  previously reported (table 23).
Appendix XIX Waste Management, Inc. (995) (39) (1,176)
subsections: section_title: Accounting/Audit Firm Arthur Andersen LLP (Arthur Andersen) was the company’s independent
paragraphs: auditor and wrote unqualified opinions for the company during the periods  that were eventually restated, although Arthur Andersen had identified the  company’s improper accounting practices and quantified those practices in  relation to the company’s financial statements. According to the complaint  filed by SEC, these misstatements were presented annually to the  company’s management, along with “Proposed Adjusting Journal Entries”  to correct the errors.
section_title: Stock Price
paragraphs: Appendix XIX Waste Management, Inc. early March 1998, after it agreed to merge with its smaller rival, USA Waste  Services Inc.
Appendix XIX Waste Management, Inc. release of scheduled quarterly financial results that met repeatedly lowered  expectations. Previously, an earnings warning issued after the close of  trading on July 6, 1999, sent the stock price down 37 percent the following  day and a second earnings warning on July 29, 1999, drove the stock price  down another 17 percent. Over the next few months following the  restatement announcement, the stock price drifted lower and then  stabilized in the mid-teens.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on the historical information we were able to obtain, at the time of  the initial earnings warning on July 6, 1999, analysts generally had buy  recommendations and price targets of $70 to $75 per share to be achieved  within 12 months. As late as May 12, 1999, analysts stressed Waste  Management’s strong cash flow potential. Within weeks of the earnings  warning, the stock was downgraded primarily to neutral and hold ratings,  and the few remaining buy recommendations were now quoting 12-month  price targets of $40 per share.
section_title: Credit Rating Agency Actions
paragraphs: Moody’s Investors Service, Inc. (Moody’s) rated Waste Management’s debt.  In December 1997 after the first restatement announcement, Moody’s  confirmed Waste Management’s rating as medium-grade. In 1998 after the  second restatement announcement, Moody’s confirmed Waste  Management’s credit rating and assigned similar ratings to its other debt  throughout the year. In April 1999, Moody’s raised the company’s long-term  debt rating slightly. After the profit warning of July 6, 1999, Moody’s  confirmed the rating but changed the rating outlook to negative. On July 29,  1999, Moody’s downgraded the company’s long- and short-term debt to its  1997 levels and left it under review for a possible downgrade.
section_title: Legal and Regulatory Actions
paragraphs: SEC has instituted and settled anti-fraud injunctions and improper  professional conduct administrative proceedings  against  Arthur Andersen and four of its partners. Without admitting or denying the  allegations or findings, the firm agreed to pay a $7 million civil penalty and  $120,000 for three of the partners named, at that time the largest penalty in  an SEC enforcement action against a major accounting firm.
Waste Management agreed to settle a shareholder lawsuit alleging years of  questionable accounting practices. On September 7, 2001, it announced a  settlement agreement with certain shareholders relating to activity that  resulted in the 1998 restatement of the financials, and other issues. This  settlement is final and resulted in establishment of a settlement fund for the  class of $457 million. Also, SEC recently (March 26, 2002) filed suit against  the former management (chairman, CEO, chief operating officer, chief  financial officer (CFO), controller, chief accounting officer (CAO), and  other senior managers), and charged that the defendants engaged in a  systematic scheme to falsify and misrepresent Waste Management’s  financial results between 1992 and 1997 (list of accused below). The case is  still pending.
Appendix XIX Waste Management, Inc.
SEC accused Arthur Andersen of “knowingly or recklessly” issuing false  and misleading audit reports for Waste Management for the years 1992  though 1996 that inflated the company’s earnings by more than $1 billion. In  each of the years 1992 through 1996, the Arthur Andersen engagement team  identified a variety of improper accounting practices that caused Waste  Management’s operating and income tax expenses to be understated and its  net income to be overstated. While Arthur Andersen quantified some of  these misstatements, other known and likely misstatements were not  quantified and estimated, as required by generally accepted auditing  standards. In connection with the audit of the company’s 1993 financial  statements, Arthur Andersen proposed a series of “Action Steps” to change  Waste Management’s improper accounting practices only in future periods  and to write off its prior misstatements over a 5- to 7- year period, rather  than require immediate correction in accordance with generally accepted  accounting principles. Ultimately, when the misstatements were revealed,  the company announced the largest restatement, at the time, in American  corporate history. In issuing an unqualified audit report on the restated  financial statements, Andersen acknowledged that the financial statements  it had originally audited were materially misstated.
Appendix XIX Waste Management, Inc.
Edward G. Maier, currently a partner and then the risk management  partner for Arthur Andersen’s Chicago office and the concurring partner  on the Waste Management engagement, consented (1) to the entry of a  permanent injunction enjoining him from violating Section 10(b) of the  Exchange Act and rule 10b-5 thereunder and Section 17(a) of the  Securities Act; (2) to pay a civil money penalty in the amount $40,000;  and (3) in related administrative proceedings pursuant to Rule 102(e), to  the entry of an order denying him the privilege of appearing or  practicing before SEC as an accountant, with the right to request his  reinstatement after 3 years;  Walter Cercavschi, currently a partner and then a partner on the Waste  Management engagement, consented (1) to the entry of a permanent  injunction enjoining him from violating Section 10(b) of the Exchange  Act and rule 10b-5 thereunder and Section 17(a) of the Securities Act;  (2) to pay a civil money penalty in the amount $30,000; and (3) in related  administrative proceedings pursuant to Rule 102(e), to the entry of an  order denying him the privilege of appearing or practicing before SEC as  an accountant, with the right to request his reinstatement after 3 years;  Robert G. Kutsenda, currently a partner and then the Central Region  Audit Practice Director responsible for Arthur Andersen’s Chicago,  Kansas City, Indianapolis, and Omaha offices (Practice Director),  consented in administrative proceedings pursuant to Rule 102(e), to the  entry of an order, based on SEC’s finding that he engaged in improper  professional conduct, denying him the privilege of appearing or  practicing before the Commission as an accountant, with the right to  request reinstatement after 1 year.
On March 26, 2002, SEC filed suit against Waste Management’s former  management (chairman; CEO; chief operating officer; CFO; controller;  CAO; and other senior managers) and charged that the defendants engaged  in a systematic scheme to falsify and misrepresent Waste Management’s  financial results between 1992 and 1997. SEC’s complaint charges that the  defendants’ improper accounting practices were centralized at corporate  headquarters. According to the complaint, each year, Dean L. Buntrock,  then CEO, Phillip B. Rooney, then the chief operating officer and others  prepared an annual budget in which they set earnings targets for the  upcoming year. During the year, they monitored the company’s actual  operating results and compared them to the quarterly targets set in the  budget, according to the complaint. To reduce expenses and inflate  earnings artificially, defendants then primarily used “top-level adjustments”
Appendix XIX Waste Management, Inc. to conform Waste Management’s actual results to the predetermined  earnings targets, according to the complaint. The inflated earnings of prior  periods then became the basis for future manipulations. The complaint  charges that, to sustain the scheme, earnings fraudulently achieved in one  period had to be replaced in the next.
The complaint alleges that defendants fraudulently manipulated Waste  Management’s financial results to meet predetermined earnings targets.  According to the complaint, the company’s revenues were not growing fast  enough to meet these targets, so defendants instead resorted to improperly  eliminating and deferring current period expenses to inflate earnings. They  employed a multitude of improper accounting practices to achieve this  objective. Among other things, the complaint charges that the defendants  avoided depreciation expenses on their garbage trucks by both assigning  unsupported, inflated and arbitrary salvage values and extending the useful  lives of garbage trucks. They failed to record expenses for decreases in the  value of landfills as they were filled with waste, and refused to record  expenses necessary to write off the costs of unsuccessful and abandoned  landfill development projects. They established inflated environmental  reserves (liabilities) in connection with acquisitions so that the excess  reserves could be used to avoid recording unrelated operating expenses.  Finally, the complaint alleges, they improperly capitalized a variety of  expenses, and failed to establish sufficient reserves (liabilities) to pay for  income taxes and other expenses.
The following former Waste Management executives, none of whom is  currently with the company, are named in the SEC legal action: Mr. Buntrock, Waste Management’s founder, chairman of the board of  directors, and CEO during most of the relevant period, was accused of  being the driving force behind the fraud. According to SEC, he set  earnings targets, fostered a culture of fraudulent accounting, personally  directed certain of the accounting changes to make the targeted  earnings, and was the spokesperson who announced Waste  Management’s phony numbers. SEC charged that he allegedly was the  primary beneficiary of the fraud and reaped more than $16.9 million  from, among other things, performance-based bonuses, retirement  benefits, charitable giving, and selling Waste Management stock while  the fraud was ongoing.
Appendix XIX Waste Management, Inc.
Mr. Rooney, Waste Management’s president and chief operating officer,  director, and CEO for a portion of the relevant period, was in charge of  building the profitability of the company’s core solid waste operations  and at all times exercised overall control over the company’s largest  subsidiary. According to SEC ensured that required write-offs were not  recorded and, in some instances, overruled accounting decisions that  would have a negative impact on operations. SEC charged that he  allegedly reaped more than $9.2 million from, among others things,  performance-based bonuses, retirement benefits, and selling company  stock while the fraud was ongoing.
James E. Koenig, Waste Management’s executive vice president and  CFO, was primarily responsible for executing the scheme. SEC alleges  that he also ordered the destruction of damaging evidence, misled the  company’s audit committee and internal accountants, and withheld  information from the outside auditors. SEC charged that he profited by  more than $900,000 from his fraudulent acts.
Thomas C. Hau, Waste Management’s vice president, corporate  controller, and CAO, allegedly was the principal technician for the  fraudulent accounting. According to charges, among other things, he  devised many “one-off” accounting manipulations to deliver the targeted  earnings and carefully crafted the deceptive disclosures according to  the SEC complaint. He profited by more than $600,000 from his  fraudulent acts.
Bruce D. Tobecksen, Waste Management’s vice president of finance, was  another accounting expert who allegedly was Koenig’s right-hand man.  In 1994, he was enlisted to assist Hau. He allegedly profited by more  than $400,000 from his fraudulent acts.
Herbert Getz, Waste Management’s senior vice president, general  counsel, and secretary, allegedly blessed the company’s fraudulent  disclosures and allegedly profited by more than $450,000 from his  fraudulent acts.
Appendix XIX Waste Management, Inc.
Rules 10b-5, 12b-20, 13a-1, 13a-13, 13b2-1, and 13b2-2. The Commission  alleges that Mr. Tobecksen violated, or aided and abetted violations of,  Section 17(a) of the Securities Act, Sections 10(b), 13(a), 13(b)(2)(A) of the  Exchange Act, and Exchange Act Rules l0b-5, 12b-20, 13a-1, 13a-13, and  13b2-1.
The Commission has requested (1) permanent injunctions against Messrs.  Buntrock, Rooney, Koenig, Hau, Getz, and Tobecksen from future  violations of, and aiding and abetting future violations of, Section 17(a) of  the Securities Act, Section 10(b) of the Exchange Act and Exchange Act  Rule 10b-5 and from aiding and abetting future violations of Section 13(a)  of the Exchange Act, and Exchange Act Rules 12b-20, 13a-1, and 13a-13; (2)  permanent injunctions against Messrs. Koenig, Hau, and Tobecksen from  aiding and abetting future violations of Section 13(b)(2)(A) of the  Exchange Act and from future violations of Exchange Act Rule 13b2-1; (3)  permanent injunction against Messrs. Koenig and Hau from future  violations of Exchange Act Rule 13b2-2; (4) Messrs. Buntrock, Rooney,  Koenig, Hau, Getz, and Tobecksen to provide a complete accounting of, and  to disgorge, the unjust enrichment realized by them, plus prejudgment  interest thereon; (5) that Messrs. Buntrock, Rooney, Koenig, Hau, Getz, and  Tobecksen pay civil money penalties pursuant to Section 20(d) of the  Securities Act  and Section 21(d)(3) of the Exchange Act  ;  (6) Messrs. Buntrock and Rooney pay civil money  penalties pursuant to the Section 21A of the Exchange Act [15 U.S.C. § 78u- 1], in the amount of three times their illegal trading profits gained or losses  avoided, as described herein; and (7) pursuant to Section 20(c) of the  Securities Act  and Section 21(d)(2) [15 U.S.C. §  78u(d)(2)] of the Exchange Act prohibit Messrs. Buntrock, Rooney, Koenig,  Hau, Getz, and Tobecksen from serving as an officer or director of a public  company.
section_title: Xerox Corporation
subsections: section_title: Business Overview
paragraphs: Xerox Corporation (Xerox) provides hardware, software, services, and  business solutions products. The company’s equipment products include  multifunctional systems which print, copy, fax and scan as well as printers  and copiers for office and production markets. Xerox also provides  document outsourcing, network management, and consulting services. For  2001, the company had revenues of $17 billion, a net loss of $71 million, and  had about 79,000 employees worldwide.
section_title: Restatement Data
paragraphs: On June 16, 2000, Xerox publicly disclosed unexpected provisions in its  Mexican business. On June 22, 2000, SEC began an investigation into  accounting issues related to Xerox’s operations in Mexico. On April 3, 2001,  Xerox announced that it was delaying the filing of its year 2000 Form 10-K  with the Securities and Exchange Commission (SEC or Commission) due  to an independent review begun by Xerox’s audit committee in cooperation  with Xerox’s independent auditor, KPMG LLP. On May 31, 2001, Xerox filed  its 2000 Form 10-K with restated consolidated financial statements for the  years ending December 31, 1998, and 1999, as a result of two separate  investigations conducted by the audit committee of the board of directors.  Earnings were restated to reduce 1998 net income by $122 million (30.9  percent) and 1999 net income by $85 million (6 percent). For the 2-year  period, Xerox overstated net income by $207 million (11.4 percent).
The two independent investigations focused on the company’s operations  in Mexico and the company’s accounting policies and procedures. As a  result, the company determined that certain accounting errors and  irregularities had occurred and certain accounting practices misapplied  generally accepted accounting principles (GAAP). Xerox found that over a  period of years, several senior managers in Mexico had collaborated to  circumvent certain of Xerox's accounting policies and administrative  procedures. The charge-offs related to provisions for uncollectible long- term receivables, the recording of liabilities for amounts due to  concessionaires and, to a lesser extent, for contracts that did not fully meet  the requirements to be recorded as sales-type leases. Other items in the  restatement were unrelated to Mexico, such as an acquisition reserve.
On April 1, 2002, Xerox announced a settlement in principle with SEC that  called for a second restatement of its financial results for 1997 through  2000 as well as an adjustment of previously announced 2001 results (table  24). On June 28, 2002, Xerox restated its consolidated financial statements  for the years ending December 31, 1997, 1998, 1999, and 2000, and revised  its previously announced 2001 results. For 1997, net income decreased by  $466 million (34.3 percent), 1998 net income decreased by $440 million  (161.2 percent), 1999 net income decreased by $495 million (37 percent),  and 2000 net loss increased by $16 million (6.2 percent). For the 4-year  period, Xerox overstated net income by $1.42 billion (52.3 percent). Once  again, Xerox determined that certain of its accounting practices misapplied  GAAP. The restatements primarily reflected expense recognition and  adjustments in the timing and allocation of revenue from bundled leases,  which needed to be reallocated among equipment, service, supplies and  finance revenue streams as appropriate by applying a methodology  different than the one Xerox had used during previous years. hired PricewaterhouseCoopers LLP (PwC) as its independent accountant.  Prior to October, KPMG LLP and Xerox had a long relationship. Currently,  KPMG LLP and at least two of its partners on the Xerox account are  subjects of an SEC investigation looking into their roles in the financial  restatement process. KPMG LLP also faces shareholder lawsuits over its  role in approving the accounting that Xerox and its new accountant, PwC,  rejected on June 28, 2002.
section_title: Stock Price
paragraphs: Xerox stock is listed on the New York Stock Exchange (NYSE) and trades  under the ticker symbol XRX. Despite its April 3, 2001, announcement,  shares of Xerox stock price began a sharp ascent from early April through  May 2001. In mid-April the company announced fiscal first quarter results  that beat analyst estimates and further stated that its turnaround and  restructuring strategy was effective. During this period, the stock price  climbed from under $5 to over $11 (fig. 29). On May 31, 2001, Xerox  announced a restatement but also stated that no fraud had been discovered  and the company’s liquidity would not be impacted. Shares rose nearly 10  percent to $9.91. By early September 2001, shares were trading around $9  per share.
At the beginning of March 2002, Xerox stock was trading near $10 per  share. When Xerox announced a second restatement on April 1, 2002, the  stock price peaked at $11.08, up 3 percent on the day. Xerox stock price  subsequently declined, along with the overall market, through June 2002,  closing at $6 on June 28, 2002.
section_title: Securities Analysts’ Recommendations
paragraphs: Based on historical analyst research information we identified, we found 8  out of 11 securities analysts researching Xerox issued “strong buy”  recommendations. Buy recommendations continued throughout most of  1999. However, on October 9, 1999, Xerox warned that its earnings would  be lower than expected. The same day, the stock price dropped 24 percent  and several analysts downgraded their earnings estimates for 1999 and  2000.
On December 14, 1999, Xerox warned that fourth quarter earnings would  fall short of expectations. Although the stock price dropped another 14  percent and many more analysts downgraded their recommendations, not  all analysts lowered their recommendations. For example, one analyst  reiterated her buy recommendation and predicted that the share price  would hit $41 within the next 18 months. Xerox stock closed the day at  $20.06 per share.
As the stock price continued to fall, closing at $8.94 on October 24, 2000,  and almost half that at $4.69 on December 5, 2000, 10 of the 11 analysts who  followed Xerox had “hold” ratings on the stock. On June 28, 2002, at the  time of the second restatement and with the stock price at $6.97, there was  still only one “sell” recommendation on Xerox stock.
section_title: Credit Rating Agency Actions
paragraphs: Moody’s Investors Service, Inc. (Moody’s) and Standard and Poor’s rate  Xerox’s debt. After confirming the credit ratings of certain of Xerox’s debt  in September 1999, Moody’s placed Xerox under review for possible  downgrade in December following its October 1999 early warning. In April  2000, Moody’s lowered Xerox’s rating and considered its outlook stable.  However, in July 2000, Xerox was placed under review for another possible  downgrade. Likewise, Standard and Poor’s credit watch was negative. In  September 2000, Moody’s and Standard and Poor’s lowered their rating for  Xerox. In the following month, Moody’s announced that Xerox’s ratings had  been placed under review for a possible downgrade while Standard and  Poor’s lowered Xerox’s long-term debt rating. In December 2000, Moody’s  lowered the company’s debt rating and considered its outlook negative. In  March 2001, Moody’s confirmed Xerox’s rating. In October 2001, Standard  and Poor’s lowered its long-term rating once again. By January 2002,  Moody’s placed Xerox’s rating under review for a possible downgrade while  Standard and Poor’s lowered the rating in April, several weeks after the  second restatement announcement. Moody’s lowered its rating of Xerox in  May 2002. In June 2002, Standard and Poor’s lowered Xerox’s long-term  rating once again.
section_title: Legal and Regulatory Actions Taken
paragraphs: A consolidated securities law action (consisting of 17 cases) is pending in  the U.S. District Court for the District of Connecticut. Defendants are the  company, Barry Romeril, Paul Allaire and G. Richard Thoman. The  consolidated action is a class action on behalf purchasers of Xerox  common stock during the period between October 22, 1998, through  October 7, 1999. The complaint in the action alleges that in violation of  Section 10(b) and/or 20(a) of the Securities Exchange Act of 1934  (Exchange Act) and Rule 10b-5 thereunder, each of the defendants  fraudulently disseminated materially false and misleading statements  and/or concealed material facts. The parties are engaged in discovery.
A second consolidated securities law action Carlson vs. Xerox Coporation  et al. (consisting of 21 cases), is pending in the U.S. District Court for the  District of Connecticut against the company, KPMG LLP, and Paul A.  Allaire, G. Richard Thoman, Anne M. Mulcahy, Barry D. Romeril, Gregory  Tayler and Philip Fishbach. The consolidated action purports to be a class  action on behalf of the named plaintiffs and all purchasers of securities of,  and bonds issued by, Xerox during the period between February 17, 1998,  through February 6, 2001. Among other things, the second consolidated  amended complaint, filed on February 11, 2002, generally alleges that each  of the defendants violated Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. The individual defendants are also allegedly liable as  “controlling persons” of the company pursuant to Section 20(a) of the  Exchange Act. Plaintiffs claim that the defendants fraudulently  disseminated materially false and misleading statements and/or concealed  material adverse facts relating to the company’s Mexican operations and  other matters relating to the company’s accounting practices and financial  condition. On May 6, 2002, Xerox and the individual defendants filed a  motion to dismiss the second consolidated amended complaint. KPMG LLP  filed a separate motion to dismiss. According to Xerox, the plaintiffs have  indicated that they intend to file a third amended complaint.
On January 4, 2002, the Florida State Board of Administration, the  Teachers’ Retirement System of Louisiana, and Franklin Mutual Advisers  filed an action in the U. S. District Court for the Northern District of Florida  against the company, Paul Allaire, G. Richard Thoman, Barry Romeril, Anne  Mulcahy, Philip Fishbach, Gregory Tayler, Eunice M. Filter and KPMG LLP.  The plaintiffs allege that each of the defendants and KPMG LLP violated  Sections 10(b) and 18 of the Exchange Act, Rule 10b-5 thereunder, the  Florida Securities Investors Protection Act, Fl. Stat. § 517.301, and the  Louisiana Securities Act, R.S. 51:712(A). The plaintiffs further claim that  the individual defendants are each liable as “controlling persons” of the  company pursuant to Section 20 of the Exchange Act and that each of the  defendants is liable for common law fraud and negligent  misrepresentation. The complaint generally alleges that the defendants  deceived the investing public by disseminating materially false and  misleading statements and/or concealing material adverse facts relating to  the company’s Mexican operations and other matters relating to the  company’s financial condition and accounting practices. This case was  transferred to the U.S. District Court for the District of Connecticut for  consolidation or coordination for pretrial purposes with the previously  described 21 consolidated actions currently pending there under the  caption, Carlson v. Xerox et al. According to Xerox, the plaintiffs have  indicated that they intend to file an amended complaint.
On July 1, 2002, a class-action complaint was filed in the U. S. District Court  for the District of Connecticut alleging violations of the Employee  Retirement Income Security Act (ERISA). The named plaintiff, Thomas  Patti, is a Xerox employee who alleges he is a participant in the Xerox  Corporation Profit Sharing and Savings Plan (Plan) who invested or  maintained investments in the Xerox stock fund during the proposed class  period, February 15, 1998 to the present. He seeks to represent a class of  individuals similarly situated, which he claims exceeds 50,000 persons. The  defendants include Xerox, the Plan (as a nominal defendant only) and the  following individuals or groups of individuals during the proposed class  period: the Plan Administrator, the Plan’s administrative committee, the  board of directors, the finance committee of the board of directors, and the  treasurer. The complaint claims that all of the defendants were fiduciaries  of the Plan under ERISA and, as such, were obligated to protect the Plan’s  assets and act in the best interest of Plan participants. The complaint  alleges that the defendants failed to do so and thereby breached their  fiduciary duties. The complaint sets out four separate ERISA causes of  action. Specifically, he claims that the defendants failed to provide accurate  and complete material information to participants concerning Xerox stock,  including accounting practices which allegedly artificially inflated the value  of the stock, and misled participants regarding the soundness of the stock  and the prudence of investing retirement benefits in Xerox stock. The  plaintiff also claims that the defendants failed to ensure that Plan assets  were invested prudently, to monitor the other fiduciaries and to disregard  Plan directives they knew or should have known were imprudent.
A consolidated putative shareholder derivative action is pending in the  Supreme Court of the State of New York against several current and former  members of the board of directors, including William F. Buehler, B.R.  Inman, Antonia Johnson, Vernon E. Jordan, Jr., Yotaro Kobayashi, Hilmar  Kopper, Ralph Larsen, George J. Mitchell, N.J. Nicolas, Jr., John E. Pepper,  Patricia Russo, Martha Seger, Thomas C. Theobald, Paul Allaire, G. Richard  Thoman, Anne Mulcahy and Barry Romeril, and KPMG LLP. The plaintiffs  brought this action in the name of and for the benefit of the company,  which is named as a nominal defendant, and its public shareholders.
The complaint alleges that each of the director defendants breached his or  her fiduciary duties to Xerox and its shareholders by, among other things,  ignoring indications of a lack of oversight at the company and the existence  of flawed business and accounting practices within Xerox’s Mexican and  other operations; failing to have in place sufficient controls and procedures  to monitor the company’s accounting practices; knowingly and recklessly  disseminating and permitting to be disseminated, misleading information  to shareholders and the investing public; and permitting Xerox to engage in  improper accounting practices. The plaintiffs also allege that each of the  director defendants breached his/her duties of due care and diligence in the  management and administration of Xerox’s affairs and grossly mismanaged  or aided and abetted the gross mismanagement of Xerox and its assets. The  complaint also asserts claims of negligence, negligent misrepresentation,  breach of contract and breach of fiduciary duty against KPMG LLP.  Additionally, plaintiffs claim that KPMG LLP is liable to Xerox for  contribution, based on KPMG LLP’s share of the responsibility for any  injuries or damages for which Xerox is held liable to plaintiffs in related  pending securities class-action litigation. On behalf of the company, the  plaintiffs seek a judgment declaring that the director defendants violated  and/or aided and abetted the breach of their fiduciary duties to Xerox and  its shareholders.
On May 16, 2002, a shareholder derivative action was brought in U.S.  District Court for the District of Connecticut against KPMG LLP. The  company was named as a nominal defendant. The plaintiff purported to  bring this action derivatively in the right, and for the benefit, of Xerox. He  contended that he is excused from complying with the prerequisite to make  a demand on the Xerox board of directors, and that such demand would be  futile, because the directors are disabled from making a disinterested,  independent decision about whether to prosecute this action. In the  original complaint, plaintiff alleged that KPMG LLP, Xerox’s former outside  auditor, breached its duties of loyalty and due care owed to Xerox by  repeatedly acquiescing in, permitting and aiding and abetting the  manipulation of Xerox’s accounting and financial records in order to  improve the company’s publicly reported financial results. He further  claimed that KPMG LLP committed malpractice and breached its duty to  use such skill, prudence and diligence as other members of the accounting  profession commonly possess and exercise. The plaintiff claimed that as a  result of KPMG LLP’s breaches of duties, Xerox has suffered loss and  damage. On May 29, 2002, the plaintiff amended the complaint to add as  defendants the present and certain former directors of Xerox. He added  claims against each of them for breach of fiduciary duty, and separate  additional claims against the directors who are or were members of the  audit committee of the board of directors, based upon the alleged failure,  inter alia, to implement, supervise and maintain proper accounting  systems, controls and practices.
On June 6, 2002, a shareholder, Stanley Lerner, commenced a derivative  action in the U. S. District Court for the District of Connecticut against  Messrs. Allaire, Buehler, Romeril, G. Thoman, and Ms. Mulcahy. The  plaintiff purports to bring the action derivatively, on behalf of Xerox, which  is named as a nominal defendant. The plaintiff alleges that the individual  defendants breached their fiduciary duties of care and loyalty by disguising  the true operating performance of Xerox through improper undisclosed  accounting mechanisms between 1997 and 2000.
On June 22, 2000, SEC began an investigation of accounting issues related  to Xerox’s Mexican business. On April 11, 2002, SEC and Xerox concluded  a settlement, as a result of which SEC filed a civil complaint alleging that  from at least 1997 through 2000, Xerox used a variety of undisclosed  accounting actions to meet or exceed Wall Street’s expectations and  disguise its true operating performance from investors. The complaint  alleges that “in a scheme directed and approved by its senior management,  Xerox disguised its true operating performance by using undisclosed  accounting maneuvers—most of which were improper—that accelerated  the recognition of equipment revenue by over $3 billion and increased  earnings by approximately $1.5 billion.”  According to SEC’s complaint,  Xerox engaged in a variety of accounting violations, including  Accelerating leasing revenue—Xerox allegedly repeatedly changed the  way it accounted for lease revenue but failed to disclose that the  associated gains were the result of accounting changes rather than  improved operating performance. Moreover, many of the practices used  failed to comply with GAAP. For example, Xerox used a return on equity  allocation method that involved calculating the estimated fair value of  the equipment as the portion of the lease payments remaining after  subtracting the estimated fair value of the services and financing  components. As the estimated fair value of services and financing  declined, the equipment sales revenue that was recognized immediately  increased. Xerox was also accused of accelerating the recognition of  revenues by immediately recognizing as the revenue price increases and  extensions of existing lease rather than recognizing the increases over  the remaining life of the lease.
Improper increases in residual values of leased equipment—Xerox  allegedly adjusted the estimated residual value of leased equipment  (that is, its remaining value at the end of the lease term) after the  inception of the lease in violation of GAAP. SEC alleges that this write- up in the residual value of equipment was used to credit the cost of  sales, were recorded close to the end of quarterly reporting periods as “a  gap-closing measure to help Xerox meet or exceed internal and external  earnings and revenue expectations.”
Acceleration of revenues from portfolio asset strategy transactions— selling investors the revenue streams from portfolios of its leases that  otherwise would not have allowed for immediate revenue recognition.  SEC alleges that Xerox used these transactions to recognize revenue  that would have otherwise been recognized in future periods and failed  to disclose this practice.
Fraudulent manipulation of reserves and other income—Xerox  allegedly increased its earnings by releasing excess reserves that were  originally established for some other purpose into income in violation of  GAAP. Xerox also allegedly systematically released a gain associated  with the successful resolution of a dispute with the Internal Revenue  Service to improperly increase earnings from 1997 through 2000.  Although GAAP required that the entire gain be recognized upon the  completion of all legal contingencies in 1995 and 1996, Xerox used most  of it to meet its earnings targets.
Failure to disclose factoring transactions—Xerox allegedly failed to  disclose factoring transactions that allowed it to report a positive year- end cash balance, instead of a negative one. This factoring involved  Xerox selling its receivables at a discount in order to realize instant cash  instead of a future stream of cash. According to SEC complaint, analysts  looked to Xerox to increase its liquidity and called for stronger end-of- year cash balances in 1999. Unable to generate cash, Xerox management  instructed its largest operating units to explore the possibility of  engaging in factoring transactions with local banks. These transactions  materially affected Xerox’s 1999 operating cash flows but these  transactions were not disclosed in its 1999 financial statements. In some  of the factoring transactions involved buy-back agreements in which  Xerox would reacquire the receivables after the end of the year. By  accounting for these transactions as true sales, Xerox violated GAAP.  Not only did Xerox fail to disclose the agreements, it failed to reverse  them in the next year.
Without admitting or denying the allegations of the complaint, Xerox  consented to a final judgment that includes a permanent injunction from  violating the antifraud, reporting and recordkeeping provisions of the  federal securities laws, specifically Section 17(a) of the Securities Act of  1933 and Sections 10(b), 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the  Exchange Act and Rules 10b-5, 13a-1. 13a-13, 12b-20 and 13b2-1  promulgated thereunder. In addition, Xerox agreed to restate its financials  for the years 1997 through 2000 and pay a $10 million civil penalty. As part  of this agreement, Xerox also agreed to have its board of directors review  the company’s material internal accounting controls and policies.
section_title: Side-by-Side of the Existing Corporate Governance and Oversight Structure and the Sarbanes-Oxley Act of 2002
paragraphs: The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) addresses many of the  concerns about the existing corporate governance and financial reporting  regulatory structure by enhancing the oversight of financial accounting.  One of the major cornerstones of the act is the creation of a new oversight  body, the Public Company Oversight Board (Board), to oversee the audit of  public companies. The act requires that any public accounting firm that  performs any audit report for any publicly held company register with the  Board. To ensure the independence of this new board, it will be structured  as a nonprofit corporation funded by registration and annual fees from  registered public accounting firms and support fees assessed to issuers. A  majority of its members will be nonaccountants. Unlike the previous  oversight structure [that is, now disbanded the Public Oversight Board  (POB)], this new board will have sweeping powers to inspect accounting  firms, set rules and standards for auditing, and impose meaningful  sanctions on violators. Further, the act addresses auditor independence  issues by, among other things, prohibiting auditors from providing certain  nonaudit services to their audit clients and strengthening the oversight role  of the board of directors.
To increase corporate accountability, corporate boards of directors’ audit  committee members must be “independent” and are responsible for  selecting and overseeing outside auditors. In addition, pursuant to  Securities and Exchange Commission (SEC or Commission) rules required  by the act, top corporate officials will have to personally attest to the  accuracy of their firm’s accounting (and can face civil and criminal  penalties if the certifications are false). The act also addresses numerous  other issues aimed at strengthening investor confidence, including  requiring that SEC or, at its direction, the self-regulatory organizations  (SRO), implement rules addressing analysts’ conflicts of interest, creating  new disclosure requirements and criminal prohibitions, increasing criminal  sanctions, and requiring that SEC issue rules that address standards of  professional conduct for attorneys. See table 27 for an overview of key  provisions of the existing structure and the new structure under Sarbanes- Oxley. This list is not intended to be an exhaustive overview of either  structure.
subsections: section_title: Audit requirements are generally provided under Section 10A of the Exchange Act (15 U.S.C. 78j-1). Section 10A requires audit procedures designed to:
paragraphs: Section 10A is amended to, among other things:   limit the scope of services provided by auditors while performing   provide reasonable assurance of detecting   require audit committee approval of permitted nonaudit services;  require audit partner rotation every 5 years;  require reports to audit committees regarding critical accounting   to identify related party transactions that are  material to the financial statements; and  to evaluate whether there is substantial doubt  policies and practices, alternative treatments discussed with  management, and certain written communications with  management; about the continued existence as a going  concern.
Also under Section 10A, the auditor has a duty  to investigate and take remedial measures  concerning possibly unlawful acts. require SEC to issue implementing rules by January 6, 2003.
In addition, the Board has authority to adopt auditor independence  standards.
SEC’s regulations before enactment of  Sarbanes-Oxley contained an auditor  independence standard and descriptions of  several circumstances the Commission would  consider inconsistent with the standard in  determining whether an auditor was  independent. These circumstances include the  provision of nonaudit services during an audit  and relationships between the auditor and the  company. Those and other factors are “general  guidance only,” and their application depends  on particular facts and circumstances. 17 C.F.R.  § 210.2-01 (2002).
AICPA is involved in the development and  interpretation of auditing standards and  accounting-related matters. (Until it terminated  in May 2002, the Public Oversight Board, a  body formed by AICPA in consultation with the  SEC, oversaw AICPA members who audited  SEC registrants and contributed to the  development and application of auditing  standards.)
The Board is to cooperate on an ongoing basis with certain  professional groups of accountants and advisory groups to  examine the need for changes in auditing, quality control, ethics,  and other standards and take other steps to increase the  effectiveness of the standard setting process.
ASB, a 15 member senior committee of the  AICPA, promulgates GAAS, related standards  governing attestation services, and quality  control standards.
The Board has authority to establish standards for auditing and  quality control; standards are to be set by rule and must include  requirements set forth in Sarbanes-Oxley. Subject to SEC  approval, the Board may adopt as rules auditing standards  proposed by one or more professional groups of accountants or  advisory groups.
section_title: The AICPA Code of Professional Conduct contains auditor independence rules that address many of the same matters addressed by SEC auditor independence rules for auditors of SEC registrants (SEC regulation S-X). On July 31, 2002, AICPA published its “Plain English Guide to Independence” to assist accountants in understanding independence requirements.
paragraphs: As discussed above, SEC is to promulgate rules implementing  Sarbanes-Oxley auditor independence standards by January 6,  2003. The Board has authority to issue rules establishing auditor  independence and any other appropriate independence standards.
SROs listing rules [New York Stock Exchange  (NYSE), National Association of Securities  Dealers (NASD), American Stock Exchange  (Amex)], with amendments submitted to SEC in  August 2002 for approval, establish  requirements for corporate audit committee  independence from and control over auditors  and the oversight and approval of nonaudit  services.
Professional Ethics Executive Committee  (PEEC)—AICPA’s Ethics Division (16 members  from private practice and 5 members from  academia and the legal profession) is  responsible for maintaining, interpreting and  enforcing the AICPA Code of Professional  Conduct and, when appropriate, suggesting  changes to the Code. The division investigates  any allegation of wrongdoing by members made  by the public, federal or state regulatory bodies,  other AICPA or other appropriate sources. The  division also initiates investigations if it becomes  aware of allegations of wrongdoing through  media reports or federal or state regulatory  action. The division is responsible for AICPA’s  auditor independence rules.
General rulemaking authority to establish ethics requirements.
Oversight of Organizations Responsible for Auditor Regulation and Auditing Standards SEC has no authority over the composition,  funding, activities, or subsidiaries of the AICPA.  SEC has accepted GAAS promulgated by the  ASB as the standards for audits.
SEC has general oversight authority over the Board. SEC  responsibilities include:  planning and approving capability and capacity of the Board;  oversight and enforcement authority over the Board;  approval of Board rules;  removal of Board member(s) for good cause; and  review of Board inspection findings and challenges to draft  findings (this authority also is provided to appropriate state  regulators).
section_title: AICPA audit and attest standards require, among other things, communications with audit committee about the auditor’s judgments on the quality of the company’s accounting principles and communications with management. (See, for example, AIPCA Audit and Attest Standards, Statements on Audit Standards Nos. 61, 71). SRO corporate governance rules, as proposed to SEC in August 2002, contain similar audit
paragraphs: RPAF must report to audit committee on critical accounting policies  and practices to be used, treatments of financial information within  GAAP discussed with issuer’s management and related matters,  and material written communications between RPAF and issuer’s  management. committee requirements.
SEC Rules require proxy disclosure of audit  committee members’ independence. SRO rules  require audit committee charters to cover audit  committee financial expertise and oversight of  independent auditors. NYSE, NASD, Amex  have submitted to SEC for approval proposed  amendments to corporate governance listing  standards, which include audit committee  independence standards and audit oversight  requirements.
Not later than 270 days after enactment of Sarbanes-Oxley, SEC  must promulgate rules directing national securities exchanges and  national securities associations to prohibit the listing of any security  of any issuer that is not in compliance with Sarbanes-Oxley  provisions requiring audit committee responsibility for oversight of  RPFA, audit committee independence, audit committee complaint  processing procedures, and funding for RPAFs and audit  committee advisers.
Audit committee responsibilities, which include  audit committee independence standards and  audit oversight requirements, are contained in  SRO listing requirements and in fiduciary and  other duties based on state laws. Guidance on  auditor relationship with audit committee is set  forth in AICPA Statements on Accounting  Standards.
The audit committee is responsible for appointment,  compensation, and oversight of RPAF employed by issuer; Each audit committee member must be a member of issuer’s  board of directors and be otherwise independent; Audit committee  must establish procedures for receipt, retention, and treatment of  complaints received by the issuer regarding accounting, internal  accounting controls, auditing matters and the confidential,  anonymous treatment of submissions by employees concerning  questionable accounting or auditing matters.
Auditing and permissible nonaudit services must be preapproved  by the issuer’s audit committee.
section_title: There are no statutory requirements that the chief executive officer or the chief financial officer (CFO) certify certain (CEO) periodic corporate financial statements. Under instructions issued by SEC for periodic and other filings, there was a general requirement that the forms had to be signed by officers, and in the case of annual reports, by a majority of the directors as well. These signing requirements did not include any type of certification or other attestation regarding the accuracy or completeness of the report. On June 14, 2002, SEC published a Notice of Proposed Rulemaking, containing a requirement that a company's CEO and CFO certify that the information contained in its financial reports is complete and true in all- important respects. On June 27, 2002, SEC issued an order requiring the CEOs of 945 companies (each with reported annual revenues in excess of $1.2 billion) personally to make a one-time written certification, under oath, that their company’s most recent periodic reports filed with the Commission are complete and accurate.
paragraphs: Principal executive officer(s) and principal financial officer(s) must  certify the following in each annual or quarterly report:  signing officer has reviewed the report;  the report fairly presents, in all material respects, issuer’s  operations and financial condition; SEC issued final rules requiring the certification effective August  29, 2002 (See the later description in this table of a corresponding criminal  provision relating to director and officer certifications).
Under state law fiduciary principles and  applicable federal securities laws, officers,  directors could be liable to the company and/or  shareholder for causing materially false  corporate financial reports.
Subject to SEC rules, officers and directors, and those acting at  their direction, are prohibited from fraudulently influencing or  misleading any independent public or certified accountant  conducting audit for the purpose of making financial statements  materially misleading.
Issuer CEOs and CFOs must reimburse issuer for bonuses,  incentive-based or equity-based compensation, and profits from  sales of issuer securities received during 1-year period following an  accounting restatement due to material noncompliance with  financial reporting requirements resulting from misconduct.
Directors and executive officers of issuers are prohibited from  selling, purchasing, or transferring stock during pension fund  blackout periods (that is, when at least 50 percent of beneficiaries  are prohibited from trading); blackout period requires 30-day prior  notice; profits from such insider trades are to be recovered by  issuer.
In most states, a corporation may lend money to  an officer or director if the board of directors  authorizes the loan and finds that it will "benefit"  the corporation.
Issuers are prohibited from making personal loans (with some  exceptions) to or for any director or executive officer.
section_title: SEC regulations require disclosure in proxy statements of fees paid for services rendered by the company’s principal accountant. 17 C.F.R. § 14a-101, Instruction Item 9 (2002).
paragraphs: Issuer must disclose in periodic reports the audit committee’s  approval of a nonaudit service to be performed by the issuer’s  auditor.
Section 16(a) of the 1934 Act requires certain  insiders (directors, officers, beneficial owners of  more than 10 percent equity) to file a Section  16(a) transaction report (reporting any change  in the person’s ownership of, or any purchase or  sale of, a security-based swap agreement  involving the company’s equity security).  Previously, this reporting was required within 10  days after the close of the calendar month in  which the transaction occurred.
Section 403 of the act amends section 16(a) of the Exchange Act  to shorten the due date for Section 16 insiders (directors, officers,  and beneficial equity owners of more than 10 percent of a  company’s equity) to file Section 16(a) transaction report. These  transaction reports must be filed within 2 business days after the  transaction has been executed. SEC may, by rule, provide for later  than 2-day reporting should the agency determine cases in which  the 2-day period is not feasible. Beginning not later than one year  after the enactment of the act, these ownership and trading reports  will be required to be filed electronically and made rapidly available  on the internet. On August 28, 2002, SEC adopted final  implementing rules, which became effective August 29, 2002.
In its “Commission Statement About  Management’s Discussion and Analysis of  Financial Condition and Results of Operations,”  SEC. Rel. Nos. 33-8056; 34-45321 (Jan. 23,  2002), SEC discussed circumstances under  which the “Management’s Discussion and  Analysis” portion of a financial statement  (MD&A) required by Regulation S-K, 17 C.F.R. §  229.303, should include a discussion of the  company’s off-balance-sheet transactions and  relationships. The rule did not specifically  require such a discussion.
Subject to mandated SEC rules, issuers must disclose material off- balance-sheet transactions and relationships that may have a  material effect on the issuer’s financial condition and present pro  forma financial information in a manner that is not misleading and,  under GAAP, is reconcilable with the issuer’s financial condition.
For SPE partnerships, consolidation was not  required if, among other things, an independent  third party invested at least 3 percent of the  capital. The Financial Accounting Standards  Board is proposing to raise this threshold and  change other conditions for avoiding  consolidation on the sponsor’s balance sheet.
Subject to mandated SEC rules, annual reports must contain an  “internal control report” describing management responsibility for,  and effectiveness of, internal controls for financial reporting; RPAF  that prepares or issues the issuer’s audit report must attest to and  report on management’s assessment.
section_title: Existing (former) structure
paragraphs: SEC rules for periodic reports must require an issuer to disclose  whether it has adopted a code of ethics for senior financial officers  or explain why a code has not been adopted, and rules for updated  disclosure (Form 8-K) must require issuer immediately to disclose  any change in or waiver of the code of ethics for senior financial  officers.
Prior to Sarbanes-Oxley, SRO rules required all  audit committee members to satisfy financial  literacy requirements and to have at least one  member with financial management expertise.
Subject to SEC rules, the issuer must disclose, together with  periodic reports, whether its members include at least one financial  expert or explain why at least one member of the committee is not  a financial expert, as that term is defined by SEC.
SEC Form 8-K must be filed with SEC within  certain time periods after the occurrence of an  event listed on the form. These events relate to  the company’s financial condition or operations.  The periods range from 5 business days to 15  calendar days. SEC has issued proposed rules  setting forth additional events to be reported.  SEC Rel. Nos. 33-8106; 34-46084 (June 17,  2002). The Commission proposed to accelerate  the Form 8-K filing deadline by requiring  companies to file the form within 2 business  days after the occurrence of a triggering event.
In connection with registration statements and periodic reports, a  public company must publicly disclose “on a rapid and current  basis” such information concerning material changes in the  issuer’s financial condition or operations, as is to be required by  SEC rule.
section_title: Existing (former) structure
paragraphs: Fraud Accountability (Title VIII of Sarbanes-Oxley)
Prior to the Sarbanes-Oxley, anyone who  "corruptly persuades" others to destroy, alter or  conceal evidence can be prosecuted under 18  U.S.C. § 1512. Section 1512 reaches  destruction of evidence with intent to obstruct  an official proceeding that may not yet have  been commenced. However, Section 1512 does  not reach the “individual shredder.” While  prosecution of obstruction under 18 U.S.C. §  1505 does not require “corrupt persuasion,” it  does require the existence of a pending  proceeding. In addition, existing law does not  explicitly address the retention of accounting  work papers for a fixed period of time.
Prohibits knowingly destroying, altering, concealing or falsifying  records with the intent to obstruct or influence an investigation in a  matter within the jurisdiction of any U.S. department or agency or  any bankruptcy case; imposes penalty of a fine or not more than  20 years in prison or both. Section 802 adds two new criminal  provisions, 18 U.S.C. §§ 1519 and 1520. Section 1519 expands  existing law to cover the alteration, destruction or falsification of  records, documents or tangible objects, by any person, with intent  to impede, obstruct or influence, the investigation or proper  administration of any “matters” within the jurisdiction of any  department or agency of the United States, or any bankruptcy  proceeding, or in relation to or contemplation of any such matter or  proceeding. This section explicitly reaches activities by an  individual “in relation to or contemplation of” any matters. No  corrupt persuasion is required. New Section 1519 should be read  in conjunction with the amendment to 18 U.S.C. 1512, added by  Section 1102 of Sarbanes-Oxley, discussed below, which similarly  bars corrupt acts to destroy, alter, mutilate or conceal evidence, in  contemplation of an “official proceeding.”
Mandates that any accountant who conducts an audit of a public  corporation shall maintain all work papers for 5 years and instructs  SEC to promulgate rules regarding record retention; knowing and  willful violation of the 5 year retention requirement and/or SEC  retention rules is punishable by a fine or 10 years in prison or both.
Accountants who fail to retain the audit or review workpapers of a  covered audit for a period of 5 years will violate Section 1520,  which creates a new felony, with a maximum period of  incarceration of 10 years. Under rulemaking authority granted in  Section 1520(b), SEC will promulgate rules relating to the retention  of workpapers and other audit or review documents.
section_title: Section 523 of the federal bankruptcy code, 11 U.S.C § 523, contains a list of exceptions to provisions of the code permitting the discharge of debts.
paragraphs: The act amends federal bankruptcy law so that a debtor cannot  discharge in bankruptcy any order or settlement arising from a  claim that the debtor has violated any Federal or state securities  law or regulation, or from a claim of common law fraud, deceit, or  manipulation in connection with the purchase or sale of any  security. Debts for penalties, fines, damages, disgorgement  payments and other costs and payments, likewise, may not be  discharged in bankruptcy.
Previous law allowed for a suit to be brought  within 1 year after discovery of violation or 3  years after occurrence of violation.
Section 804 establishes a statute of limitations for claims of fraud,  deceit, manipulation, or contrivance in contravention of a  regulatory requirement concerning federal securities laws as  follows:  2 years after discovery of facts constituting the violation;  5 years after such violation.
Under previous law, questions arose about  whether the Sentencing Guidelines sufficiently  address obstruction of justice crimes.
Section 805 requires the U.S. Sentencing Commission to  undertake an expedited review of these issues, particularly in light  of the two new obstruction of justice statutes, described above. It  also directs the Sentencing Commission to consider a number of  factors such as destruction of a large amount of evidence,  participation of a large number of individuals, or destruction of  particularly probative or essential evidence, which might be  considered sufficiently aggravating as to warrant additional  enhancements or inclusion as offense characteristics.
Section 806 prohibits public companies, their officers, employees,  contractors and agents from retaliatory actions against employees  who assist in proceedings involving alleged securities violations  and provides an administrative process for employees seeking  relief for violators. Also, the section provides for a civil action based  on a violation of the section.
The previous federal criminal laws (Title 18 of  the U.S. Code) did not have a specific crime  directly prohibiting securities fraud schemes.  Prosecutors have found it necessary to reach  many securities fraud schemes through the mail  and wire fraud statutes. Securities fraud has  also been prosecuted as a violation of  provisions of the federal securities laws.
Section 807 of Sarbanes-Oxley creates a specific felony for  securities fraud punishable by fine or up to 25 years incarceration.  This provision complements existing securities law. The statute  requires a nexus to certain types of securities, but no proof of the  use of the mails or wires is required.
section_title: Title 18 U.S.C. § 1512, in part, provides a 10 year maximum term of incarceration for an offender who corruptly persuades another person with the intent to, in part, destroy or alter evidence.
paragraphs: Section 1102 of Sarbanes-Oxley imposes a fine and/or a term of  imprisonment of up to 20 years on any person who corruptly alters,  destroys, mutilates or conceals a record, document, or other object  with the intent to impair the object's integrity or availability for use in  an official proceeding, or who corruptly otherwise obstructs,  influences or impedes an official proceeding. (The Attorney  General advises that Section 1512, as amended, should be read in  conjunction with the new Section 1519, added by section 802 of  this act, which criminalizes certain acts intended to impede,  obstruct, or influence "any matter" within the jurisdiction of any  department or agency of the United States, or in relation to or  contemplation of any such matter. The term "corruptly" shall be  construed as requiring proof of a criminal state of mind on the part  of the defendant. See Field Guidance on New Criminal Authorities  Enacted in the Sarbanes-Oxley Act of 2002 (H.R. 3763)  Concerning Corporate Fraud and accountability  http://www.usdoj.gov/ag/readingroom/sarox1.htm)
Section 1103 of Sarbanes-Oxley authorizes SEC to petition courts  for a temporary escrow of extraordinary payments that might by  made to any director, officer, employee, partner, controlling person  or agent during the course of an investigation involving potential  violations of the federal securities laws.
Questions have arisen whether the current  Sentencing Guidelines sufficiently address  securities, accounting, and pension fraud, and  related offenses.
Section 1104 of Sarbanes-Oxley requests the Sentencing  Commission to study existing guidelines and consider expedited  issuance of amended guidelines, within 180 days after enactment  of Sarbanes-Oxley, which address securities, accounting, and  pension fraud, and related offenses.
Under current law, a court may bar an officer or  director from serving as an officer or director of  a public company if SEC proves that the  conduct of that person demonstrates  “substantial unfitness” to serve in that capacity.
Section 1105 authorizes SEC, in administrative Cease and Desist  (C&D) proceedings, to prohibit any person who has violated the  antifraud provisions of the Exchange Act or the Securities Act of  1933, or SEC’s rules under those provisions, from acting as an  officer or director of any public company if the conduct  demonstrates unfitness to serves as an officer or director.
Sarbanes-Oxley eliminates the word "substantial," thereby  permitting a bar based on the person's unfitness. In addition, the  act empowers SEC to prohibit any person who violates Federal  securities laws, rules, or regulations from acting as an officer or  director of any public company if the person is unfit to serve in such  a capacity.
Section 32(a) of the Exchange Act, 15 U.S.C. §  78ff, provides for a criminal fine of $1 million for  individuals and/or imprisonment of up to 10  years, or a fine of $2.5 million for anyone other  than an individual.
Section 1106 increases penalties under the Exchange Act to $5  million or imprisonment of not more than 20 years and increases  the fine to $25 million for persons other than a natural person.
section_title: There is no explicit protection from retaliation for an individual who provides truthful information to a law enforcement officer concerning the commission or possible commission of a federal offense.
paragraphs: Section 1107 provides for a new subsection (e) of 18 U.S.C. §  1513, which  creates a felony offense for any person knowingly to  take any action, with intent to retaliate, harmful to a person who  provides such information concerning a federal offense. An offense  is subject to a fine or imprisonment of not more than 10 years or  both.
Under previous law (Chapter 63 of U.S. Code  Title 18—Mail Fraud) conspiracies to violate the  mail fraud statute (§ 1341), the wire fraud  statute (§ 1343), the bank fraud statute (§ 1344)  and the health care fraud statute (§ 1347) are  punishable by a maximum 5 year sentence. The  wire fraud offense did not explicitly reach  "attempts" to commit the substantive offense.  However, this was not an impediment in  practice, because proof of a scheme to defraud  did not necessarily require proof that the  scheme was successful.
Section 902 of Sarbanes-Oxely amends 18 U.S.C. § 1349 to  provide that attempts and conspiracies to commit the substantive  federal fraud offenses described in the adjacent column, as well as  the new securities fraud offense, will have the same maximum  punishment as the substantive crime. This section also effectively  adds an “attempt” to commit the wire fraud offense (18 U.S.C. §  1343) as a federal crime. The remainder of the fraud statutes  already includes “attempts.”
Under previous law, the maximum term of  imprisonment for violations of the mail and wire  fraud statutes (18 U.S.C. §§ 1341, 1343) is 5  years, with the exception of fraud affecting a  financial institution, which has a maximum term  of incarceration of up to 30 years.
Section 903 of Sarbanes-Oxley amends 18 U.S.C. §§ 1341 and  1343 by increasing the maximum 5-year penalty for mail or wire  fraud to 20 years. The maximum term of incarceration for fraud  affecting a financial institution remains at a maximum of 30 years.
Under the previous provision of ERISA, 29  U.S.C. § 1131, any person who willfully violates  the reporting and disclosure requirements  concerning employee benefit plans as set forth  in 29 U.S.C. §§ 1021-1031, or any regulation or  order issued thereunder, is punishable by a fine,  and/or a term of imprisonment not to exceed 1  year.
Section 904 of Sarbanes-Oxley increases the fines in 29 U.S.C. §  1131 to $100,000 (for an individual person), $500,000 (for persons  other than an individual). Section 1131 also increases the  maximum term of imprisonment from 1 year (a misdemeanor) to a  maximum term of imprisonment of 10 years. The increase in the  fine for individuals will have no limiting effect insofar as individuals  convicted of violating Section 1131 will now be subject to the  alternative fine provisions of 18 U.S.C. § 3571 for felony  convictions. In the absence of restrictive language in Section 904  of the Act, individuals will be subject to the maximum fine of  $250,000, or fine based on the defendant's gain or the victims’  loss, under § 3571. While the amendment also increases the fine  in § 1131 to $500,000 for persons other than an individual, this  change has merely increased the fine to the level of the maximum  fine for an organization already set forth in § 3571.
section_title: Under previous law, questions have arisen whether the Sentencing Guidelines sufficiently address white-collar offenses.
paragraphs: Section 905 of Sarbanes-Oxley reaches beyond Section 803 of the  act, described above, which addresses sentencing guidelines  solely for obstruction of justice. Section 905 requires that the  Sentencing Commission study the existing guidelines and consider  expedited issuance of amended guidelines within 180 days after  enactment of this Act, which would address all the new criminal  provisions and increased criminal penalties in Sarbanes-Oxley.  This section also requires the Sentencing Commission to consider  the broader issues of whether the white-collar crime guidelines  provide for sufficient deterrence and punishment, and assure  reasonable consistency with other relevant directives and  guidelines.
As discussed previously, there are no statutory  requirements that the chief executive officer or  the chief financial officer certify certain periodic  corporate financial statements.
Section 906 of Sarbanes-Oxely enacts new 18 U.S.C. § 1350,  which requires that the chief executive officer and the chief  financial officer (or the equivalent thereof) of a public company  provide a statement certifying that the periodic reports containing  financial statements filed with SEC fully comply with the  requirements of Sections 13(a) and 15(d) of the Exchange Act, and  that the information contained in the periodic reports fairly  presents, in all material respects, the financial condition and results  of operations of the issuer. Certifying a report while knowing that it  does not comport with all of the requirements of § 1350 is  punishable by a fine of not more than $1 million and imprisonment  of up to 10 years. A willful violation is punishable by a fine of not  more than $5 million and imprisonment of up to 20 years.
section_title: NASD Rule 2711 and NYSE Rule 472 establish standards for communications with the public to address research analyst conflicts of interest. (See pp. 65 to 66).
paragraphs: Requires SEC or, as directed by SEC, a registered SRO, to adopt  rules to address conflicts of interest that can arise when securities  analysts recommend equity securities in research reports and  public appearances, including rules:  restricting the prepublication clearance or approval of research  reports by persons either engaged in investment banking  activities or not directly responsible for investment research;  limiting the supervision and compensatory evaluation of  securities analysts to officials who are not engaged in investment  banking activities;  prohibiting a broker or dealer involved with investment banking  activities from retaliating against a securities analyst as a result of  an unfavorable research report;  establishing periods during which brokers or dealers who served  as underwriters or dealers in a public offering should not publish  or otherwise distribute research reports relating to the pertinent  securities or their issuer;  establishing safeguards to ensure that securities analysts are  separated within the investment firm from the review, pressure, or  oversight of those whose involvement in investment banking  might potentially bias the analyst’s judgment or supervision (§  501(a)).
SEC has issued for comment proposed regulation AC, which would  require research analysts to certify that the views expressed by the  analyst in a research report or public appearance accurately reflect  the analyst’s personal views and whether the analyst received  compensation in connection with his or her specific views and  recommendations. SEC Rel. Nos. 33-8119; 34-46301 (Aug. 2,  2002).
See independence rule. Voluntary disclosure by  firms. SEC’s August 2, 2002, proposed  regulation would require that any research  report accurately reflect the analyst’s personal  views, and whether the analyst received  compensation or other payments in connection  with his or her specific recommendations or  views.
Requires SEC or, as directed by SEC, a registered SRO to adopt  rules requiring securities analysts (in public appearances) and  broker/dealers in research reports) to disclose specified conflicts of  interest that are known or should have been known at the time of  the appearance or the date of distribution of the report.
section_title: No explicit rules of conduct for attorneys.
paragraphs: SEC must issue rules establishing minimum standards of  professional conduct for attorneys appearing and practicing before  SEC that require, among other things:  Reporting issuer’s CEO or general counsel evidence of material  violation of securities law, breach of fiduciary duty or similar  violation by issuer or issuer’s agent;  Report the evidence to issuer’s audit committee or another  committee outside directors or the entire board if general counsel  or officer fail to respond appropriately (§ 307).
Section 601 authorizes fiscal year 2003 budget of $776 million to  carry out activities described in the section.
SEC, under its Rule of Practice 102(e), could  censure or deny appearance before SEC by any  person, including a licensed professional who  lacks character or integrity, engaged in  unethical or improper professional conduct, or  willfully violated or willfully aided and abetted  the violation of the federal securities laws or the  rules and regulations issued thereunder.
Codifies SEC authority to censure any person or deny any person  the privilege to practice before the Commission if SEC  appropriately determines that the person lacks requisite  qualifications, lacks character or integrity, engaged in unethical or  improper professional conduct, or willfully violated or willfully aided  and abetted the violation of the federal securities laws or the rules  and regulations issued thereunder.
In SEC injunctive proceedings against persons involved in penny  stock offerings, the court may prohibit the person from participating  in penny stock offerings (§ 603).
A broker/dealer may be subject to registration sanctions if:  an associated person of  the broker/dealer is subject to an SEC  order barring or suspending the right of the person to be  associated with a broker or dealer;   an associated person is subject to final order of a state financial  regulator, a federal banking agency or the National Credit Union  Administration barring the person from association with a  regulated entity or is based on violations of laws or regulations  prohibiting fraudulent, manipulative or deceptive conduct.
Appendix XXIII Side-by-Side of the Existing Corporate  Governance and Oversight Structure and the  Sarbanes-Oxley Act of 2002 means for CPAs to establish their own professional standards; function as a liaison between market  institutions and corporations to help protect investors; perform research, educational and training  functions; seek improvements in financial reporting; and promote strong corporate governance and  internal control systems. A New Accounting Culture: Address by Barry C. Melancon, September 4,  2002,  Yale Club - New York City,  http://www.aicpa.org/news/2002/p020904a.htm.
section_title: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Acknowledgments
paragraphs: In addition to those individuals named above, Kevin Averyt, Matthew  Bridges, M’Baye Diagne, Heather Dignan, Lawrance Evans, Jr., Benjamin  Federlein, Joe Hunter, Edwin Lane, May Lee, Mitchell Rachlis, LaSonya  Roberts, Barbara Roesmann, Nicholas Satriano, Paul Thompson, and  Richard Vagnoni made key contributions to this report.
section_title: Glossary
subsections: section_title: Asset write-down/write off
paragraphs: To charge an asset amount to an expense or loss in order to reduce the  value of the asset and therefore, earnings. Occurs when an asset was  initially overvalued or loses value.
section_title: Commercial paper
paragraphs: Consists of short-term (up to 270 days), unsecured promissory notes issued  by corporations to raise cash for current transactions, typically for  financing accounts receivable and inventories. Many companies find  commercial paper to be a lower-cost alternative to bank loans.
section_title: Derivative
paragraphs: A security whose value depends on the performance of an underlying,  previously issued securities. Used properly these instruments can be useful  in reducing financial risk. Examples include, options, swaps, and warrants.
section_title: Goodwill
paragraphs: The excess of the purchase price over the fair market value of an asset.  Goodwill arises when the price paid for a company exceeds that suggested  by the value of its assets and liabilities.
section_title: Impairment
paragraphs: Generally refers to a reduction in a companies stated capital, however  impairment can be used in any context such as “asset impairment” or  “goodwill impairment.”  Impairment is usually the result of poorly  estimated gains or losses.
section_title: Option
paragraphs: Contracts that gives the holder the option, or right, to buy or sell the  underlying financial security at a specified price, called the strike or  exercise price during a certain period of time or on a specific date. Options  on individual stocks are called stock options.
A method used to inflate transaction volumes or revenue through the  simultaneous purchase and sale of products between colluding (related- party) companies.
section_title: Special purpose entity (SPE)
paragraphs: Also known as a “Special Purpose Vehicle.”  A business interest formed  solely in order to accomplish some specific task or tasks. A business may  utilize a special purpose entity for accounting purposes, but these  transactions must still adhere to certain regulations.
Used properly these subsidiary companies are used to isolate financial risk.  Their asset/liability and legal status make its obligations secure even if the  parent company goes bankrupt. Used improperly SPEs can serve to inflate  revenue, hide debt or understate risk exposure. Enron used accounting  loopholes to use SPEs improperly.
section_title: Warrant
paragraphs: A security that gives the holder certain rights under certain conditions both  determined by the issuer of the warrant. For example, an exchange  privilege may allow the holders to exchange 1 warrant plus $5 in cash for  100 shares of common stock in the corporation, any time after some fixed  date and before some other designated date.