PwC Defends Itself Against “Baseless” MF Global Suit Using MF Global’s Own Stupidity

Posted on by Adrienne Gonzalez

PwC was recently dealt a blow when U.S. District Judge Victor Marrero stated: “[u]nder PwC’s reasoning, the in pari delicto doctrine would insulate an auditor from liability whenever a company pursues a failed investment strategy after receiving wrongful advice from an accountant. Such a broad reading of the doctrine would effectively put an end to all professional malpractice actions against accountants – – an outcome not in line with [New York law].” As Francine McKenna has called it, the in pari delicto doctrine is like "like a pair of needle nosed pliers by audit firm defense lawyers to diffuse a bomb."

Never a firm to be deterred by a legal speed bump, PwC isn't all that worried about this latest development in MF Global's $1 billion lawsuit against them. The basis of the MF Global claim is that they received "flatly erroneous" advice from PwC. PwC, however, maintains that it didn't tell MF Global to enter into crappy transactions that ended up sinking the company. It didn't tell them to commingle money they didn't have the right to mingle. All it did was issue audit opinions up until MF Global's bankruptcy. No biggie, that.

Just in case MF Global didn't the message that it's their own fault they were so bad at managing risk, PwC reiterates in economia:

A PwC spokesperson said, “The lawsuit is baseless, and PwC expects ultimately to prevail.

“PwC acted as MF Global’s auditor. It never gave MF Global business advice on transactions into which it should enter, and no published report by a government agency or bankruptcy trustee has ever criticized the accounting treatment for the RTM transactions.

“Finally, the record is clear that MF Global’s collapse was caused by its own business decisions and actions, not by accounting advice.”

Last year, DealBook wrote that MF Global failed due to "myriad" reasons, not least of which "a risky bet on European sovereign debt" and "a one-time charge that depressed its earnings and years of quarterly losses." But, you note PwC's careful wording here: the media can foam at the mouth over this case all they want but as far as the law is concerned, it's not their bad.

It's a lot of hair-splitting here, obviously, but that's what lawyers are for.

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Oral Arguments Heard in Campbell v. PricewaterhouseCoopers

~ Update below with link to audio of the proceedings

Last month we caught you up on Campbell v. PricewaterhouseCoopers, the wage and hour lawsuit filed by employees of the firm, claiming to be non-exempt and thus available for overtime. Oral arguments were heard today at the 9th Circuit Court of Appeals in San Francisco and it marks the most recent step in a case that could have wide repercussions in California. Francine McKenna has a good rundown over at Forbes, including sta��������������������rshaw, the plaintiffs’ attorney. PwC and their lead counsel, Dan Thomasch of Orrick, have declined to comment at this time.

In today’s proceedings, both sides were allowed to make their arguments and answered questions from a three-judge panel. We’ve obtained the briefs for both sides and we’ll give you a taste of each. First, from the plaintiffs:

PwC argues that Attest Associates satisfy the Professional Exemption because—notwithstanding the routine and nondiscretionary nature of their work—PwC claims that they are functionally indistinguishable from fully licensed accountants, doctors, lawyers, and engineers. As a matter of law, however, the text, structure, and drafting history of the Professional Exemption limit its application to licensed accountants, and Associates are not licensed. Second, PwC argues that Attest Associates satisfy the Wage Order’s Administrative Exemption because they work “under only general supervision” despite up to six layers of managers who are responsible for Associates’ work. That argument fails, however, because PwC has not pointed to sufficient evidence to create a triable issue of fact that Associates “work along specialized or technical lines”—much less that they do so “under only general supervision”—as required by the Administrative Exemption.

The argument goes into detail from there addressing three key arguments: 1) The Professional Exemption Does Not Apply to Attest Associates; 2) The Administrative Exemption Does Not Apply to Attest Associates; 3) The Rules Governing Professions Other Than Accounting Do Not Help PwC. You can see the brief in its entirety on the next pages.

PwC addresses all three arguments in their brief; this is a portion from the brief’s introduction:

Put simply, nothing in the Wage Order precludes unlicensed accountants from being shown to be exempt under subsection (b) of the Professional Exemption. Plaintiffs’ argument that the “drafting history” of the wage order at issue shows an intention on the part of the [Industrial Welfare Commission] to prohibit unlicensed accountants from being professionally exempt should be rejected, because the language and structure of the Professional Exemption are not ambiguous, and contain no such prohibition. Even the District Court did not accept Plaintiffs’ tortured reading of the text of the Professional Exemption, or claim to find unambiguous intent on the part of the [Industrial Welfare Commission] to exclude from eligibility for the Professional Exemption all unlicensed members of the accounting profession — and inevitably by extension, all unlicensed lawyers, doctors, dentists, optometrists, architects, engineers, and teachers. Doing so is flatly contrary to the overriding principle governing application of exemptions from overtime provisions, which is to consider individual employees’ work duties.

And their brief outlines a direct counter to the plaintiffs’ brief: 1) Plaintiffs’ Argument That Accountants Can Only Qualify for a Professional Exemption Under Subsection (a) Is Unsupportable 2) PwC Is Entitled to Show That Its Attest Associates Satisfy the “General Supervision” Requirement of the Administrative Exemption; 3) The Impact of the District Court’s Order Is Not Limited to the Profession of Accounting.

So what we’ve got here is…failure to agree on how the ambiguous (or not) California law is and how it applies specifically to unlicensed audit associates. Are they really just cogs in the wheel, bowing to their superiors as the plaintiffs argue? Or are they responsible professionals who are engaged in a challenging occupation that warrants exemption? The 9th Circuit will have transcripts and audio from the proceedings available on its website at some point tomorrow and we’ll update this post with them when they’re available. As for a resolution, it will be several months before we find out what the 9th Circuit rules and then, there’s still a trial to be had. Stay tuned.

UPDATE: Audio is now available for those interested. You can listen to the proceedings here.

2010 01 29 Br of Appellees

Efiled Reply Brief

PwC Didn’t Do CME Group Any Favors

The CFTC’s action against PwC probably came as a result of a shocking CME Group announcement late Wednesday: “It now appears that the firm [MF Global] made … transfers of customer segregated funds in a manner that may have been designed to avoid detection.” These transfers, CME Group said, appeared to have taken place after its audit team showed up last week at MF Global to take a look and found everything to be in order. CME Group couldn’t have been hoodwinked like that if PwC had been doing its job all along. You can’t circumvent controls unless there are none or there are holes. It was PwC’s job to review controls and the adequacy of policies and procedures to support them. [Francine McKenna/AB, Earlier]