Today's Wall Street Journal (page C3) reports that Deloitte nearly torpedoed the $50 million Adelphia settlement I blogged yesterday by releasing a statement saying its auditors were "deliberately misled."
Whoops. Apparently the SEC felt that constituted a denial of the SEC's charges—a breach of the settlement agreement—and demanded that Deloitte withdraw it.
"They didn't just miss red flags, they pulled the flag over their heads and then claimed they couldn't see," the SEC's Mark Schonfeld told the Journal.
Yesterday's comment-filled blog addressed the pressure on auditors (and thanks, readers, for your thoughtful comments).
Here's another question, though. The neither "admit nor deny" construction that Deloitte apparently violated is a two-way street. It allows the SEC to issue, without contradiction, a lengthy order detailing what it considers to have been the company's failings, while allowing the company to avoid the added civil liability that would come from admitting guilt to a government enforcement agency.
Without that second part, the SEC would have a hard time getting companies to settle without trial, since, in theory, plaintiffs cannot use SEC settlements in their civil suits.
But that raises the question: How far does the SEC's prohibition on denial extend? Is Deloitte prevented from saying it was misled only in the statement about its settlement? Can executives say that to the press? (Probably not.) Can Deloitte claim it was "deliberately misled" when defending itself in civil court? (Probably, though I'm not sure.)
Some time ago, the Massachusetts Attorney General said he was going to do away with the idea of letting companies neither admit nor deny wrongdoing. There are enormous practical problems with this—if the SEC did the same, its trial section would be swamped. But the status quo results in some pretty weird distinctions. |
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