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Under the Gun From the SEC, Firms Divulge Accounting Issues
Under the Gun From the SEC, Firms Divulge Accounting Issues
Bristol-Myers, Household International
Are Among the Companies Coming Clean
By MICHAEL SCHROEDER
WASHINGTON -- In a mad deadline rush, top executives from scores of large companies filed with federal securities regulators forms swearing that their latest financial results are accurate.
Along the way, a handful of companies, including Household International Inc. and Bristol-Myers Squibb Co., decided to come clean on accounting problems that they had found. And some of the year's most troubled firms, including Enron Corp. and WorldCom Inc., had to declare that they couldn't satisfy the Securities and Exchange Commission's requirements.
By Wednesday night, the SEC had processed a majority of filings from 695 companies required to meet the deadline. These companies' chief executives and chief financial officers had to swear under oath to the accuracy of their latest quarterly financial results and other recent financial reports. As two agency staff members scrambled to log in all the last-minute submissions, it wasn't immediately clear how many companies may have failed to meet the 5 p.m. EST deadline. Others may be planning to seek a five-day extension of the deadline, which can be requested through Thursday. The SEC order requiring the certification does not spell out what would happen to companies that miss the deadline.
The unprecedented exercise comes as a wave of company scandals and arrests of top executives have shaken the public's confidence in American corporate governance. In a bid to help restore confidence and hold executives accountable, SEC Chairman Harvey Pitt ordered top executives in late June to attest personally to the accuracy of their companies' results for the latest quarter and for preceding periods. Legislation signed last month by President Bush made the certification requirement permanent.
Investors have been watching the certification process as an indicator of whether there will be a fresh batch of company accounting problems on top of recent scandals at Enron and WorldCom, among others, that have weighed heavily on stock markets.
Indeed, in documents Enron filed with the SEC, the company's interim CEO and CFO said they were not able to certify the company's 2000 financial results or those for the first three quarters of 2001. The Houston energy company filed for bankruptcy court protection in December.
Overall, though, the deadline for certifications passed smoothly enough, and the process contributed to a late stock-market rally, as investors were relieved that they didn't see any significant new bombshells bursting. The Dow Jones Industrial Average Wednesday rose 260.92 points, or 3.08%, to 8743.31, more than offsetting a sharp drop Monday. Still, the industrial average is down 13% since the beginning of the year.
Several companies already targeted by well-publicized SEC investigations had problems, declaring that they were unable to meet the filing requirements. Instead, they opted to explain why they couldn't certify their data because they are doing their own broad accounting investigations that will take time. Among those companies: Qwest Communications International, CMS Energy Corp., Adelphia Communications Corp. and WorldCom. Because of their unusual circumstances, the companies aren't expected to be penalized for being tardy.
Tyco International Ltd. had said previously its executives would voluntarily certify the company's results, even though as a Bermuda company it wasn't included in the SEC order. Tyco reversed that decision on Wednesday, saying its recently hired chief executive wants to await the results of a new internal review of the conglomerate's past accounting practices. Tyco's accounting also is under review by the SEC, the company said.
About a dozen companies certified results only after announcing they are restating earlier financial reports. Household International, the country's second-largest consumer-finance company, announced that it earned $386 million less since 1994 than previously reported. Bristol-Myers said in its SEC filing that it may be forced to restate its sales and earnings because the company encouraged wholesalers to buy too many drugs in past years, adding that an SEC investigation into the matter "may become a more formal investigation."
Nicor Inc., parent of gas-distribution utility Northern Illinois Gas, said it had revised downward previously stated financial results and disclosed that it is under investigation by the SEC.
Even some troubled companies that weren't required to certify results decided to announce expected restatements. Gerber Scientific Inc., which disclosed in April it was the subject of an SEC probe, said it was postponing the release of its fourth-quarter and full-year results to give its auditor, KPMG LLP, additional time to complete the audit. At the time, the supplier of automated manufacturing systems said it would review results from January 1998 to the present and warned that restatements were likely.
Required to certify under the SEC order were 947 of the nation's largest firms, each with at least $1.2 billion in annual revenue last year. This number has since been reduced by a half dozen, mainly because of mergers.
About three quarters of the total filers, or 695 companies that report results on a calendar year, had a deadline of Wednesday. Certifications from most of the remaining 247 companies, which report on a fiscal year, will be due by late December.
Top executives at nearly half the companies certified their financial statements early. Wednesday morning, the SEC was inundated with forms being delivered by couriers, overnight mail services and through faxes. Electronic filings weren't permitted.
In some cases, executives went to unusual lengths to comply. 3Com Corp.'s chief executive Bruce Claflin signed his sworn statement in Hong Kong on Aug. 9, according to a copy of the document loaded on the SEC's Web site. A handwritten note from a notary in the Chinese territory certified that Mr. Claflin signed his name in front of the notary. A 3Com spokeswoman said Mr. Claflin was back at the company's Santa Clara, Calif., headquarters Wednesday but wasn't available for comment.
After a date was stamped on the documents, SEC employees worked overtime to scan certification forms onto the SEC's tally of companies on its Web site. The process likely will take a few days.
Companies not meeting the deadline, or restating their results, could be expected to meet with an unpleasant reaction from investors. Samuel Winer, a former SEC attorney now in practice at Foley and Lardner in Washington, said that "CEOs and CFOs who haven't certified their books, or have requested extensions, will face a slew of class-action law suits."
"It's fair to say that all lawyers who practice in the area of securities regulation spent the better part of the last week or two fielding questions from clients relating to the new certification requirement," said Stephen Crimmins, a partner at Pepper Hamilton in Washington.
There was little expectation, however, that the SEC certification process was going to root out any genuine examples of fraud. "I think we better resign ourselves to the fact that executives in that deep already, so far over their heads, aren't going to confess," said William Lerach, a partner at Milberg Weiss, which represents Enron shareholders in their suit against the failed energy concern. "They're going to cross their fingers, sign and pray for the best," he said at a news conference.
Over the past four years, more than 900 companies have restated their earnings -- more than in all the 20 years before that, Mr. Lerach said. He said his law firm, which has been involved with many corporate lawsuits including those against Arthur Andersen LLP, WorldCom, and Qwest Communications International Inc., would consider filing suits against companies that restated their earnings.
The deadline has posed greater challenges for some companies than for others. Exide Technologies Inc., a Princeton, N.J., auto-battery maker, requested a five-day extension to file its certification statements, says Joel Weiden, a company spokesman. Given that the company has been operating under Chapter 11 bankruptcy-court protection since April, "the process of getting our information together has taken a little bit of time," he said. Exide's certification statements will include certain qualifications, among them that the SEC has raised questions about several of Exide's earlier filings, he said.
Executive certification of financial results was made a permanent requirement under an accounting-reform legislative package signed by President Bush last month. The law, known as the Sarbanes-Oxley bill, requires CEOs and CFOs for all 15,000 publicly traded companies in the U.S. to file statements each quarter swearing to the accuracy and completeness of their major financial filings. Executives who make false statements could be prosecuted and imprisoned.
-- Kelly K. Spors contributed to this article.
Write to Michael Schroeder at firstname.lastname@example.org
Updated August 15, 2002
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