Risk & Compliance

Operation Cooperation: SEC Has New Enforcement Policy

Companies that comply fully with Commision's requests may be let off the hook.
Stephen TaubOctober 24, 2001

A new policy from the SEC states that the commission may not take enforcement action against a company it investigates — if the company cooperates fully with the authorities.

The SEC unveiled the unprecedented policy as part of its settlement of financial-reporting fraud charges against Gisela de Leon-Meredith, the former controller of Seaboard Corp. Seaboard, a Kansas- based commodity-brokering and produce-farming company, cooperated with the investigation, and is, therefore, exempt from any enforcement action.

The SEC’s Report of Investigation and Statement–announced on Tuesday– identifies four broad measures of a company’s cooperation:

  • Self-policing prior to the discovery of the misconduct, including establishing effective compliance procedures and an appropriate tone at the top.
  • Self-reporting of misconduct when it is discovered, including conducting a thorough review of the nature, extent, origins, and consequences of the misconduct, and promptly, completely, and effectively disclosing the misconduct to the public, to regulators, and to self-regulators.
  • Remediation, including dismissing or appropriately disciplining wrongdoers, modifying and improving internal controls and procedures to prevent recurrence of the misconduct, and appropriately compensating those adversely affected.
  • Cooperation with law enforcement authorities, including providing the Commission staff with all information relevant to the underlying violations and the company’s remedial efforts.

“Credit for cooperative behavior may range from the extraordinary step of taking no enforcement action at all to bringing reduced charges, seeking lighter sanctions, or including mitigating language in documents the Commission uses to announce and resolve enforcement actions,” according to an SEC press release.

Stephen M. Cutler, Acting Director of Enforcement, said in the release: “Crediting those who seek out, self-report, and rectify illegal conduct is critical to achieving the Commission’s goal of ‘real-time enforcement.’ We hope that by setting forth a framework for exercising its prosecutorial discretion, the Commission will encourage companies to address unlawful conduct swiftly and meaningfully and to cooperate with law enforcement authorities. The result will be more efficient and effective enforcement of the federal securities laws.”

Under the deal with Meredith, the former finance exec agreed to cease and desist from future violations of the false accounting records provisions, and from causing future violations of the reporting, books and records, and internal control provisions of the federal securities laws.

Meredith is the former controller of Chestnut Hill Farms, a Miami- based subsidiary of Seaboard.

Over a five-year period, Meredith booked improper entries in the subsidiary’s books and records that overstated the deferred farming-cost asset and understated farming expenses on the subsidiary’s financial statements, according to the Commission’s settlement agreement. “The Commission further found that Meredith deliberately undertook to conceal the errors through other improper entries and adjustments,” the agreement noted.

In late 1999, Seaboard began to raise questions about unusual entries in Chestnut Hill’s monthly financial reports, according to the Commission. Finally, in July 2000, Meredith confessed her wrongdoing and was fired.

During August 2000, Seaboard restated its financial statements from 1995 through the first quarter of 2000, reducing total assets by approximately $7.5 million and retained earnings by approximately $5.3 million.

Because of Seaboard’s cooperation, the SEC said in a press release: “We are not taking action against the parent company given the nature of the conduct and the company’s responses. Within a week of learning about the apparent misconduct, the company’s internal auditors had conducted a preliminary review and had advised company management, who, in turn, advised the board’s audit committee, that Meredith had caused the company’s books and records to be inaccurate and its financial reports to be misstated.”