Risk & Compliance

Not That There’s Anything Wrong With It

CFOs and securities lawyers don't see much new in President Bush's corporate accountability plan. That doesn't mean they're against it.
Marie LeoneJuly 10, 2002

There were no clear winners yesterday. Not at Major League Baseball’s All-Star game, which ended in a 7-7 tie, nor on Wall Street, where President Bush, gave a speech on corporate responsibility. The chief executive’s speech, while choked full of specifics, was met with a muted response by the 1,000 or so top executives in the audience. Worse, the speech was quickly overshadowed by disappointing corporate earnings reports and another stock market slide.

To be sure, many CFOs agreed with the President’s call to arms to fight corporate corruption. Following months of endless revenue restatements, financial scandals, and lawsuits, the President said it’s time to put an end to “the days of cooking the books, shading the truth and breaking our laws.”

Still, some senior finance executives say the President didn’t offer any remedies that aren’t already in the works on Capitol Hill, and in some instances, already in place.

Take the case of certifying annual reports and 10-Ks. Under Bush’s proposal, CEOs and CFOs would have to personally guarantee that those financial statements are accurate. But as CFO.com reported in late June (“CFOs Must Swear by Their Numbers”), the SEC is about to roll out a similar plan. Indeed, beginning Aug. 14, CFOs and CEOs of public companies with revenues exceeding $1.2 billion in the past fiscal year must provide written statements, under oath, regarding the accuracy of their companies’ financial statements.

What’s more, Melissa Cruz, CFO of Concord Communications Inc., in Marlboro, Mass., doubts that there’s actually much difference between personally and legally vouching for financial statements. As one of the officers who places a signature on Concord’s SEC filings, Cruz says personal certification is a nice idea, but redundant.

Cruz says she was also taken back by the president’s swipe at proxy statements. During yesterday’s speech, Bush accused corporate managers of hiding executive compensation data by burying it “in long proxy statements . . . “which is seldom seen by shareholders.”

But Cruz contends that compensation data filed in proxy statements is “black and white” and relatively easy to find and understand. In addition, the SEC requires companies to mail out proxy statements to shareholders once a year, so the information is seen by investors.

Further, some finance chiefs point out that the “long proxy statement” format is set by the SEC, not by company policy. “If the president was trying to empower consumers to look at proxy statements, then that’s a good idea,” notes one CFO. “But to hold that up as one of the 10 things wrong with Corporate America, it just doesn’t make sense.”

For his part, former SEC senior trial counsel Christian Bartholomew was disappointed that the speech didn’t focus more on financial fraud detection measures — namely the audit function. Bartholomew, currently a partner in the Miami office of Morgan Lewis & Bockius, says that while the speech probably means that the SEC will work harder to impose more substantial penalties, it didn’t address the failings of the audit system.

“There are three possible answers as to what is wrong with the audit system, and not one is a good answer,” asserts Bartholomew. He ticks off the trio: “One, the audit system doesn’t work; two, it works, but is not being performed correctly; or three, it works, but is being ignored.”

Bartholomew says he’s not trying to lay blame on accountants. But, he asserts, if senior financial managers can fool independent auditors, “then something in the audit system is not working.”

While Bartholmew believes stiffer sentences for corporate lawbreakers is a good idea in theory, he says it’s not a panacea. “Any good prosecutor can indict executives on 10 to 15 separate counts of fraud, and have the jail time add up to the increased sentencing Bush proposed yesterday,” he points out. “The SEC does it all the time.”

Same thing for the punishments that Bush wants for illegal document destruction. The laws are already on the books, and despite the Andersen experience, attorneys say those statutes enable prosecutors to indict suspected shredders on multiple counts.

Furthermore, the financial crimes SWAT team the President wants to create currently exits, albeit in a different form. Observers point out that the U.S. Attorney General’s office has been working with the SEC in major markets (including New York, California and southern Florida) for quite some time setting up task forces that handle financial fraud. “The President’s SWAT team concept is a warning shot across the bow,” says one attorney. “But it’s not a meaningful deterrent.”

The additional $100 million the President wants to give to the Securities and Exchange Commission probably won’t make a huge difference, either. The hard truth is, even with the added funds, investigators in the SEC’s Enforcement Division can’t look at the filings of every publicly traded company. Instead, they will continue to follow the IRS tack: attempt to put the fear of God in all filers by making examples out of a few.

Nevertheless, Bartholomew does believe some good may come of Pres. Bush’s speech. “The President is putting his political capital behind all of the issues,” he says, “which means corporate accounting problems have become mainstream.”