Tag: Lehman Brothers

Accounting News Roundup: The SEC’s Hunt on Banks’ Repos Continues; McKenna Named as a Loeb Finalist; Pabst Gets a New Owner After IRS Order | 05.26.10

SEC Shakes Down Banks on Repurchase Accounting [Compliance Week]
The SEC has received information from 19 “financial institutions” on their repurchase accounting that could help determine if the treatment at Lehman Brothers was ” an outlier in classifying asset repurchase agreements as sales even when those assets were destined to return to the balance sheet.”

Compliance Week reports that Steven Jacobs, associate chief accountant in the Division of Corporation Finance at the SEC said that the Commission wants companies (i.e. banks) to be more forthcoming in their disclosures, “In a situation like this,s a snapshot in time.” Disclosures should more clearly describe the company’s economic situation and its liquidity apart from the moment-in-time snapshot, he said. “I would be willing to bet companies would be more willing to do that if that position on the balance sheet didn’t look as good.”


2010 Gerald Loeb Award Finalists Announced by UCLA Anderson School of Management [UCLA]
Congratulations are due to our own Francine McKenna (look for her column later today) who was named as a finalist for a Gerald Loeb Award for Distinguished Business and Financial Journalism in the “Online Commentary and Blogging Category” for her work at re:The Auditors.

Other nominees include Adrian Wooldridge, Steven N. Kaplan, Nell Minow, Patrick Lane, Brad DeLong, Luigi Zingales, Saugato Datta, Thomas Picketty and Chris Edwards for “Online Debates” for The Economist; David Pogue for “Pogue’s Posts” for The New York Times; Jim Prevor for “Business, Finances and Public Policy” for The Weekly Standard.

Rewarding Failure [Portfolio.com]
The old idea of combining the SEC and the CFTC came up again last week and Gary Weiss thinks that it’s a terrible idea. Be that as it may, he thinks that it may “have some mileage” since some big names have recently come out to support the idea, including Mary Schapiro who was posed the question “can you explain any rational reason that both the CFTC and the SEC exist?”:

Schapiro’s response was wordy, but it boiled down to a qualified “yes.” If it were up to her, she said, there would be just one agency. Headed by her, I presume.

Evidently this seems to be a trend. Only about a week ago, the idea was endorsed by Arthur Levitt, the former head of the SEC. He told Barron’s that merging the two agencies is “so basic to any kind of regulatory reform, that to neglect that is really outrageous.”

Gary argues that an independent CFTC could “light a fire under a somnolent SEC” with the right leadership, although the current team doesn’t seem to be up for the job. If that continues, he adds, we could end up with one large(r) ineffective bureaucracy protecting the markets.

Pabst’s New Owner Built Fortune on Old Brands [WSJ]
The Journal has learned that Pabst is being purchased by investor C. Dean Metropoulos who has made a fortune in food branding. His past investments include Chef Boyardee, Duncan Hines and several others.

Pabst was up for sale after the IRS forced the sale by California-based Kalmanovitz Charitable Foundation. The Foundation had owned the company for a decade, after the Service allowed a five year extension for the nonprofit to own a for-profit business.

Accounting News Roundup: Would IFRS Prevented Repo 105?; The Crazy Eddie Movie Hits a Snag; JP Morgan May Bolt Tax-Refund Loan Business | 04.29.10

Lehman case “backs” accounting convergence [Reuters]
Philippe Danjou, a board member at the IASB has been quoted as saying that Repo 105 would not have been allowed under IFRS, “From an IFRS perspective I would suspect that most transactions would have stayed on the balance sheet. It makes a case for convergence, it makes a case that we should not have different outcomes under different accounting standards when you have such big amounts.”

The G-20 asked the sages at both the FASB and the IASB to converge their rules by June-ish 2011 but some people don’t sec, as there are too many disparities on treatment of key issues between the two boards.


The Real Reason Behind Danny DeVito’s Crazy Eddie Movie Project Meltdown [White Collar Fraud]
Danny DeVito wants to make a movie based on the Crazy Eddie Fraud, which was perpetrated by, among others, Eddie and Sam Antar. The project has run aground primarily because of Eddie Antar’s life rights and the potential profit he would reap from the making of the movie. Danny D is disappointed by the developments and has sympathy for Eddie, discussing it in s recent Deadline New York article:

“He’s gone through tough times, and he’s not the aggressive tough guy they paint him to be,” De Vito said. “He’s in his 70s and the past has come back to bite us all in the ass. Peter [Steinfeld] and I told him we think there is a terrific story there, but we can’t do it with you involved, in any way. We’ve taken a breather, but we’re figuring out how to jump back in.

Sam Antar is not amused by this and chimed in with his side of the story:

Eddie Antar is plainly still in denial about his cowardice towards his own family and investors. There actually is a “family dynamic” that “explains Antar’s fall” as DeVito claims. However, Eddie Antar and other members of his immediate family are simply unwilling to give a truthful account of what really happened at Crazy Eddie, while Danny Devito is willing to accept Eddie Antar’s bullshit excuses for his vile behavior.

As Chipotle Sizzles, CFO Sells Stock [Barron’s]
Ten thousand shares at $144 and change will buy a bunch of burritos.

Medifast Lawsuit: Anti-SLAPP motions filed [Fraud Files Blog]
Back when we discussed forensic accounting, the aforementioned Sam Antar said that forensic accountants can look forward to “making many enemies in the course of their work and must be unhinged by the retaliation that normally follows uncovering fraud and other misconduct.”

Tracy Coenen, no stranger to this retaliation, is now fighting back against Medifast who has sued her and others for saying not so flattering things about the company:

Anti-SLAPP motions have been filed in the Medifast lawsuit by me and by my co-defendant, Robert FitzPatrick. My motion can be read in its entirety here, and Fitzpatrick’s can be read here.

SLAPP stands for Strategic Lawsuit Against Public Participation. It’s basically when a big company tries to shut up a little guy with expensive litigation. In my opinion, Medifast sued me and others in an attempt to get us to stop publicly analyzing or criticizing the company and it’s multi-level marketing business model.

In filing an anti-SLAPP motion, we are essentially asking the court to rule in our favor and in favor of free speech. Consumers should have the right to discuss, analyze, and criticize companies without the fear of expensive lawsuits.

JPMorgan May Quit Tax-Refund Loans, Helping H&R Block [Bloomberg BusinessWeek]
Bloomberg reports that JP Morgan may discontinue its financing of 13,000 independent tax preparers, a move that will benefit H&R Block, according to a competitor:

“Block is the biggest winner in this,” said John Hewitt, chief executive officer of Liberty Tax Service, a privately held company in Virginia Beach, Virginia, that also may benefit…

The reason HSBC is exiting this industry, even though they’re making $100 million a year in profit from it, is because of reputation risk,” Hewitt said in an interview. “Bankers don’t like the consumer advocacy groups picketing outside their offices.”

Refund anticipation loans (RALs) are attractive to clients that need cash immediately, based on their anticipated refund. The business is controversial because the high interest rates can drive people further into debt and consumer groups oppose them vehemently.

Funding for smaller shops that offer these loans will likely lose the business altogether as large banks like JP Morgan discontinue the financing, thus driving the business to franchise tax prep shops like H&R Block, Jackson Hewitt, and Liberty.

Accounting News Roundup: Audit Committee Chair Resigns from WellCare Health; PwC, E&Y Officially Cut Iran Ties; Repo 105 = Pointless, Repugnant Practice | 04.26.10

Director Resigns at Wellcare Health [WSJ]
Regina Herzlinger was the chair of the audit committee of WellCare Health Plans, Inc., a Tampa-based provider of Medicaid and Medicare plans, but resigned last week amid controversy around the company’s accounting practices. The Wall St. Journal reports that Ms Herzlinger said that internal audits discovered the company overbilled the Illinois Medicaid program by $1 million “and potentially overcharged states for almost $500,000 worth of maternity care.” She also stated that the company “ran afoul of Georgia’s requirements that it account for eachhich it paid providers, resulting in a $610,000 fine.”

WellCare also paid an $80 million fine to the State of Florida last May for a criminal investigation “into allegations that it had defrauded Florida benefits programs for low-income adults and children” as well as $10 million to the SEC for an investigation into its accounting. At least they’re keeping some attorneys busy.


Ms Herzlinger alleges that she was not renominated to her position on the board of directors for raising questions about the accounting practices at the WellCare as well as corporate-governance issues.

The Company claims that “good corporate-governance practices require it to bring in new board members periodically to provide a fresh perspective,” so at least they’ve got that point covered. The Journal also reports that the company is pulling the materiality card, saying that the “accounting errors Ms. Herzlinger identified were relatively small and the company’s own internal controls indentified them, indicating that its processes are working well.”

Lehman Investors Add Auditor Ernst & Young to Suit Over Deals [Bloomberg]
Charlie Perkins, the Lucas van Pragg of Big 4 accounting firms, has to be getting sick of repeating himself:

“Throughout our period as the auditor of Lehman, we firmly believe our work met all applicable professional standards, applying the rules that existed at the time.”

Countrywide Investors Said to Settle Lawsuit for $600 Million [Bloomberg BusinessWeek]
KPMG is listed as one of fifty defendants in the lawsuit in California.

Companies Feeling More Pressure to Cut Iran Ties [NYT]
PricewaterhouseCoopers and Ernst & Young have both cut their ties with Iran, following KPMG, the Times reports. This results in grand total of zero Big 4 firms with affiliates in Iran.

United Against Nuclear Iran (“UANI”) President Mark Wallace received letters from both PwC and E&Y:

This week, Mr. Wallace’s group received letters from both PricewaterhouseCoopers and Ernst & Young assuring the group that they had cut ties with Iranian firms. PricewaterhouseCoopers wrote that the Middle East member of the company’s global network had had a “cooperating firm relationship” with Agahan & Company, an Iranian firm, but that it expired last year. Ernst & Young said it cut its ties in 2001 to the Tadvin Company, one of Iran’s largest accounting firms, even though Tadvin was still listed on its Web site this year.

Mr. Wallace called that a breakthrough because by publicly avoiding Iran, the American accounting firms that audit so many other companies send an important signal. “What it says is if it’s too risky for the Big Four accounting firms,” he said, “it should be too risky for other companies.”

It’s pretty obvious Mr Wallace doesn’t know anything about Big 4 accounting firms re: risk.

A manifesto for accountants [Tax Research UK]
Richard Murphy has some suggestions for the Accountancy Age manifesto.

Repo 105 Explained With Numbers and Detail [The Summa]
“Right now, I just don’t see what the big fuss is all about. The number differentials are just too small. Although a repugnant practice, Lehman didn’t accomplish much of anything with Repo 105 use.”

The FASB Punts Repo Accounting to the SEC

It’s not surprising that FASB’s Bob Herz was called to submit comment on the House Financial Services Committee’s hearings on Lehman – more specifically, Public Policy Issues Raised by the Report of the Lehman Bankruptcy Examiner – and it’s even less surprising that Herz stated that the FASB will be ready when the SEC is to alter repo accounting rules should this be, you know, a big deal going forward.

As many of you already know, the FASB has a history of taking a reactive stance to accounting issues during the financial crisis (case in point: mark to market) and repo accounting is no exception. Sort of like the SEC cracking down on Madoff-esque Ponzi schemes after Madoff, it defeats the purpose as financial criminals very rarely repeat techniques that have already been uncovered and prosecuted. But oh well, showing up late to the party is still showing up and proves FASB is at least paying attention.


Herz’s testimony reinforces FASB’s position as standards setter, not regulator. Working with the SEC will allow the regulators to put together a case for accounting standards that could address repo accounting should the SEC discover it is widespread among financial firms but for now, FASB will be sitting back and waiting to see what the SEC comes up with.

As it turns out, FASB isn’t nearly as reactive as it appears on the surface: plenty of guidance already exists for handling these transactions and perhaps had Ernst & Young been looking hard enough, they would have easily found something amiss.

Said Herz:

When developing the guidance for determining whether a company maintains effective control over transferred assets, the FASB noted repo transactions have attributes of both sales and secured borrowings. On one hand, having a forward purchase contract is not the same as owning the asset. On the other hand, the contemporaneous transfer and repurchase commitment entered into in a repo transaction raises questions about whether control actually has been relinquished. To differentiate between the two, the FASB developed criteria for determining whether a company maintains effective control over securities transferred in a repo transaction.

Control? Is that was this about?

Regardless, FASB is prepared to offer even more guidance on the matter should current guidance not be sufficient to make sense of future contracts that could be used in a fraudulent manner. Of course, the financial criminals have likely already discovered a new, innovative way to hide liabilities or stash nasties off-sheet but instead of looking for those, the SEC will be working closely with FASB in the future to prevent another Lehman. History always repeats itself but, sadly, financial crimes rarely do. It appears our friends at FASB never got that memo.

Source: Discussion of Selected Accounting Guidance Relevant to Lehman Accounting Practices

Accounting News Roundup: Lehman Unsecured Creditors Want Ernst & Young Docs; Court Doesn’t Allow “Geithner Defense” for Non-Geithner Taxpayer; Contenders for the Head of Deloitte UK Shape Up | 04.20.10

Lehman unsecured creditors seek probe Ernst & Young [Reuters]
The unsecured creditors of Lehman are justifiably nervous about getting anything bank in the wake of the Lehman Brothers bankruptcy. The next best plan of attack, as you might of expect is poke around E&Y to see what they’ve got laying around. Of course Ernst & Young won’t just turn over “certain documents” and make “its employees and partners submit to an oral examination” so the creditors are asking the bankruptcy court to order them to do so.


Tax Court Rejects “Geithner Defense,” Says Reliance on TurboTax Does Not Excuse Taxpayer From Penalty for Errors on Tax Return [TaxProf]
Please note for any of you that will try to pull that excuse:

“Although the Court concludes the errors in petitioners’ tax preparation were made in good faith, petitioners have not established that they behaved in a manner consistent with that of a prudent person. Before the trial petitioners stipulated that they did not consult a tax professional or visit the IRS’ Web site for instructions on filing the Schedule C.

We do not accept petitioners’ misuse of TurboTax, even if unintentional or accidental, as a defense to the penalties on the basis of the facts presented.”

Contenders shape up to replace John Connolly – Deloitte’s big hitter [Times Online]
The head spot for Deloitte in the UK will be up for grabs next year as John Connolly will step down after ten years at the helm. The Times Online reports that even though two candidates have been identified by sources, no campaigning will be allowed, “Mr Connolly conceded that the issue of succession was “in the air” but said that the firm wanted to avoid open competition between potential successors. “We don’t allow people to go around the country calling meetings and giving presentations about why they will be a great leader,” he said.”

Fuld: Ernst & Young “Supported” Lehman’s Repo 105 Treatment

Dick Fuld has a big date with the House Financial Services Committee tomorrow and he’s going to say that he knew absolutely nada about Repo 105 until that nasty little report came out last month.


Fuld will also state that Repo 105 complied with GAAP and that Ernst & Young “reviewed that policy and supported the firm’s approaf the relevant rule, FAS 140.” Further, E&Y was “auditing our financial statements and reviewing our quarterly and annual SEC filings. Each year, E&Y issued formal opinions that Lehman’s audited financial statements were fairly presented in accordance with GAAP, and they were.”

Presumably E&Y will be okay with this since they’re standing by their audits of LEH so we’re sure no one at 5 Times Square will be interested in tomorrow’s testimony.

Full testimony, via Deal Journal:

Mr. Chairman, Ranking Member Bachus, and Members of the House Committee on Financial Services, you have invited me here today to address a number of public policy issues raised by the Lehman Brothers bankruptcy report filed by the Examiner.

Since September of 2008, I have given much thought to the financial crisis and the perfect storm of events that forced Lehman into bankruptcy. Everyone’s focus is now on how to prevent another crisis. The key is how regulation and governance should be deployed going forward to better protect the financial markets and the entire system.

The idea of a “super regulator” that monitors the financial markets for systemic risk, I believe, is a good one. To be successful in today’s challenging environment, this new regulator should have actual experience and a true understanding of the business of financial institutions, the capital markets and risk management and must be given the resources sufficient to accomplish its important mission.

My view is that the new regulator also should have access, on a real-time basis, to all information and data regarding transactions, assets and liabilities, as well as current and future commitments. In addition, we should put in place established and effective methods of communication between the regulator and the firms being regulated, all of whom should be guided by clear standards for capital requirements, liquidity and other risk management metrics. The job of the new regulator can only be done, in my opinion, with the creation and utilization of a master mark-to-market capability that determines valuations and capital haircuts on all assets, commitments, loans and structures. In short, to have a fair and orderly market, I believe we need a single set of transparent rules for all of the participants.

You have asked specifically about the role of the SEC and the Federal Reserve Bank of New York. Beginning in March of 2008, the SEC and the Fed conducted regular, at times daily, oversight of Lehman. SEC and Fed officials were physically present in our offices monitoring our daily activities. The SEC and the Fed saw what we saw, in real time, as they reviewed our liquidity, funding, capital, risk management and mark-to-market processes. The SEC and the Fed were privy to everything as it was happening. I am not aware that any data was ever withheld from them, or that either of them ever asked for any information that
was not promptly provided. After an extended investigation into Lehman’s bankruptcy, the Examiner recently published a lengthy report stating his views.

Despite popular and press misconceptions about Lehman’s valuations of mortgage and real estate assets, liquidity, and risk management, the Examiner found no breach of duty by anyone at Lehman with respect to any of these.

Speaking of asset valuations, the world still is being told that Lehman had a huge capital hole. It did not. The Examiner concluded that Lehman’s valuations were reasonable, with a net immaterial variation of between $500 million and $2.0 billion. Using the Examiner’s analysis, as of August 31, 2008 Lehman therefore had a remaining equity base of at least $26 billion. That conclusion is totally inconsistent with the capital hole arguments that were used by many to undermine Lehman’s bid for support on that fateful weekend of September 12, 2008.

The Examiner did take issue, though, with Lehman’s “Repo 105” sale transactions. As to that, I believe that the Examiner’s report distorted the relevant facts, and the press, in turn, distorted the Examiner’s report. The result is that Lehman and its people have been unfairly vilified.

Let me start by saying that I have absolutely no recollection whatsoever of hearing anything about Repo 105 transactions while I was CEO of Lehman. Nor do I have any recollection of seeing documents that related to Repo 105 transactions. The first time I recall ever hearing the term “Repo 105” was a year after the bankruptcy filing, in connection with questions raised by the Examiner.

My knowledge, therefore, about Lehman’s Repo 105 transactions, and what I will say about them today, is based upon my understanding of what I have recently learned.

As CEO, I oversaw a global organization of more than 28,000 people with hundreds of business lines and products and with operations in more than forty countries spread over five continents. My responsibility as the CEO was to create an infrastructure of people, systems and processes, all designed to ensure that the firm’s business was properly conducted in compliance with the applicable standards, rules and regulations.

There has been a lot of misinformation about Repo 105. Among the worst were the completely erroneous reports on the front pages of major newspapers claiming that Lehman used Repo 105 transactions to remove toxic assets from its balance sheet. That simply was not true. According to the Examiner, virtually all of the Repo 105 transactions involved highly liquid investment grade securities, most of them government securities. Some of the newspapers that got it wrong were fair-minded enough to print a correction.

Another piece of misinformation was that Repo 105 transactions were used to hide Lehman’s assets. That also was not true. Repo 105 transactions were sales, as mandated by the accounting rule, FAS 140.

Another misperception was that the Repo 105 transactions contributed to Lehman’s bankruptcy. That was not true either. Lehman was forced into bankruptcy amid one of the most turbulent periods in our economic history, which culminated in a catastrophic crisis of confidence and a run on the bank. That crisis almost brought down a large number of other financial institutions, but those institutions were saved because of government support in the form of additional capital and fundamental changes to the rules and regulations governing banks and investment banks.

The Examiner himself acknowledged that the Repo 105 transactions were not inherently improper and that Lehman vetted those transactions with its outside auditor. He also does not dispute that Lehman appropriately accounted for those transactions as required by Generally Accepted Accounting Principles.

I have recently learned that, in 2000, the Financial Accounting Standards Board published detailed accounting rules for transactions of this very type, described them and dictated how they should be accounted for. In 2001, Lehman adopted a written accounting policy for Repo 105 transactions that incorporated those accounting rules. E&Y, the firm’s independent outside auditor, reviewed that policy and supported the firm’s approach and application of the relevant rule, FAS 140.

As I now understand it, because Lehman’s Repo 105 transactions met the FAS 140 requirements, that accounting rule mandated that those transactions be accounted for as a sale. That was exactly what I believe Lehman did. Lehman should not be criticized for complying with the applicable accounting standards.

In other words, those transactions were modeled on FAS 140. The accounting authorities wrote the rule that expressly provided for those transactions and how they should be accounted for. To the best of my knowledge, Lehman followed those rules and requirements.

My job as the CEO was also to put in place a robust process to ensure that Lehman complied with all of its obligations to make accurate public disclosures. I had hundreds of people in the internal audit, finance, risk management and legal functions to ensure that we did, in fact, comply with all of our obligations.

Part of that process was E&Y’s role in auditing our financial statements and reviewing our quarterly and annual SEC filings. Each year, E&Y issued formal opinions that Lehman’s audited financial statements were fairly presented in accordance with GAAP, and they were.

We also had in place a rigorous certification process that was carried out in advance of every annual and quarterly SEC filing. That bottom-up process involved hundreds of people who had first-hand knowledge of the firm’s day-to-day business and the responsibility to review for accuracy and compliance the firm’s SEC disclosures before they were filed.

Before we made any annual or quarterly filing, the key people who were involved in this process signed certifications confirming that, to their knowledge, the filing did not contain any untrue statement of a material fact or any material omission and that it fairly presented Lehman’s financial position.

Our certification process culminated, every quarter, with a mandatory, allhands, in-person meeting, which was chaired by Lehman’s Chief Legal Officer. In addition to me, that meeting was attended by the firm’s President, Chief Financial Officer, Financial Controller, Executive Committee members, business heads, the principal internal audit, finance and risk managers, legal counsel and our outside auditors.

After we had reviewed the draft annual or quarterly filing in detail, the Chief Legal Officer and I would each ask everyone present to speak up if there was anything in the document that caused them concern, or if anything had been omitted that they thought should be included. Attendees were also told that they should speak separately with the Chief Legal Officer if they had an issue that they did not want to raise at the meeting. To my knowledge, no one ever, at any of those meetings, raised any issue about Repo 105 transactions.

I relied on this certification process because it showed that those with granular knowledge believed the SEC filings were complete and accurate. I never signed an SEC filing unless it was first approved by the Chief Legal Officer. Mr. Chairman, I thank you for allowing me to speak on these issues and I will be pleased to answer any questions this Committee may have.

Accounting News Roundup: Over 50% of CFOs Aren’t Planning on Salary Increases; Americans Don’t Trust Politicians; PwC Cleans Up on Lehman Bankruptcy | 04.19.10

National survey finds employee wages and bonuses to remain stagnant over next six months [GT Press Release]
All the excitement (or lack thereof) amongst the Big 4 about raises this year will, at least for the next six month, will be rare compared to other companies. Grant Thornton’s survey of CFOs revealed that 53% don’t expect any salary changes in the next six months while 32% plan for decreases. That leaves a whopping 15% of those left in the survey that are planning wage and bonus increases over the next six months.


Poll: 4 out of 5 Americans don’t trust Washington [AP]
So if you’re interested in running for office, this may be the year to do it.

PwC’s Administration of Lehman Translates to $24,000 Per Hour! [The Big Four Blog]
Naturally in most situations, there are winners and there are losers. While Ernst & Young is looking like a giant loser in the Lehman Brothers bankruptcy, the whole thing seems to have worked out well for PricewaterhouseCoopers.

TBFB reports that, as the administrator for the UK piece of Lehman, the firm has gained control of over $48 billion in assets. Costs associated with these services (in the 18 months since the bankruptcy) are 0.65% of the assets recovered. A quick punch of your 10-key reveals that this is around $312 million or $24,000/hour.

Did Lehman’s Arrangement with Hudson Violate Accounting Principles?

This story is republished from CFOZone, where you’ll find news, analysis and professional networking tools for finance executives.

I’m far from the only person having a hard time understanding the significance of the deals arranged by a company that this page one New York Times story referred to as Lehman Brothers’ “alter ego.”

From the looks of it, the company in questastle, was set up simply to serve in the traditional role of outside investor in another company’s off-balance-sheet financing vehicle, which is known as a special purpose or variable interest entity to accountants and a conduit or structured investment vehicle in the world of banks.

The arrangement is common enough and there’s nothing wrong with it, strictly speaking, so long as the outside investor is independent of the sponsor of the entity and the arrangements are properly disclosed.


Remember Citigroup’s SIVs? They spawned the first ill-fated bank bailout effort, by former Treasury Secretary Henry Paulson. And they were similar to the entity that Hudson created for Lehman, called Fenway.

The problem with these gizmos, of course, is that sponsors often claim not to be responsible for the assets and yet end up on the hook for them anyway, which is what happened to Citi. But that in itself doesn’t make them fraudulent, at least not according to GAAP.

In Lehman’s case, the problem seems to be that Hudson was controlled by Lehman, if not at the time it was created, then certainly under later rules, according to Charles Mulford, an accounting professor at the Georgia Institute of Technology and an advisor to CFOZone.

At first glance, it seems like the opposite might be the case, since Lehman reportedly dominated Hudson’s board when it was created in 2001. And Lehman’s influence over Hudson diminished significantly in 2004, when its board seats were reduced from five to one, presumably along with Lehman’s equity in the firm.

Just conceivably, that might have been done to conform with the changes in the accounting rules. But Mulford says that might not have been enough to comply, because the new rules require the so-called primary beneficiary of the vehicle to consolidate its assets regardless of how much equity the outside investor has in it. Even after 2004, Lehman remained the single largest investor in Hudson, according to the Times.

“Given changes to accounting for SPEs, one could argue that Lehman had effective control of the Hudson Castle SPEs, even if it didn’t have voting control, necessitating consolidation,” Mulford said in an email to CFOZone.

Of course, the significance of the arrangement remains unclear, as the Times article failed to explain how much of Lehman’s debt was shifted into the Fenway SPE. It looks as if at least $3 billion was shifted into Fenway in this fashion, but that’s a lot less than the $50 billion Lehman shifted off of its balance sheet through so-called Repo 105 transactions in 2008.

Incidentally, while Lehman’s auditor Ernst & Young recently claimed that amounts Lehman shifted in this fashion weren’t sufficient to cause the firm’s failure, since its total assets exceeded $600 billion, I just saw in the bankruptcy examiner’s report that the firm refused to say the amounts weren’t immaterial when it signed off on Lehman’s financial statements. And the examiner’s report insisted that they were indeed material.

Accounting News Roundup: More Dodgy Accounting from Lehman Brothers; Deloitte Announces $100 Million Investment in China; Less Than 100% of Tea Partiers Believe They are Overtaxed | 04.13.10

Lehman Channeled Risks Through ‘Alter Ego’ Firm [NYT]
That alter-ego firm is Hudson Capital and the Times reports that while HC “appeared to be an independent business, it was deeply entwined with Lehman,” citing a Board of Directors controlled by the bank, Lehman’s 25% ownership, and many former LEH employees working at HC. Hudson reportedly provided LEH with financing “while preventing ‘headline risk’,” but the relationship was designed specifically to maximize the utility of Hudson “without jeopardizing the off-balance sheet accounting treatment,” according to memo cited by the Times.


Deloitte To Spend More Money In China For Business Expansion [Dow Jones]
Deloitte is investing $100 million in China over the next three to five years, hiring 1,000 to 2,000 new employees per year, per Global CEO Jim Quigley and Deloitte China CEO Christopher Lu. This follows a five-year, $150 million investment by the firm announced in 2004.

Quigely told Dow Jones, “When I have made my investment decisions as the CEO of Deloitte, the market where we are investing the most is in China. We’ve now expanded. So another $100 million is coming this direction as we continue to want to grow our business here, and take advantage of the opportunities available to serve China companies and to serve companies outside of China who want to invest here.”

66% Say America Is Overtaxed [Rasmussen via TaxProf]
If you needed a poll that shows that Americans hate taxes in order to convince you, Rasumussen is all over it. 66% of people surveyed believe Amecians are overtaxed, as opposed to 25% who disagree. The issue is severely divided politically with 81% of Republicans believing they are overtaxed as opposed to Democrats who were split on the issue. 73% of those surveyed that did not affiliate with either party believe they are overtaxed while 96% of the Tea Party movement believe they are overtaxed.

The PCAOB Is the Latest Headache for Ernst & Young

Charlie Gasparino is on E&Y like stink on a monkey this week. After reporting yesterday that the SEC may eventually get around to charging Dick Fuld and/or Ernst & Young for the accounting hijinks at Lehman Brothers, CG is now reporting that the PCAOB is asking all kinds of questions that E&Y would rather not answer.


Not exactly great news from CG so we emailed E&Y spokesman Charlie Perkins to see what’s what. He declined to comment and said the firm would not be releasing a statement related to this report.

We also called up the PCAOB to get their take and spoke with Colleen Brennan, Deputy of Director of Public Affairs, who said that the Board is prohibited from discussing these matters and provided us with the details:

The PCAOB cannot comment on whether it is investigating a particular registered accounting firm or a particular public company audit by a firm. The Board, however, takes all allegations of improper professional conduct by a registered public accounting firm seriously and considers all information relating to such allegations.

PCAOB investigations and contested contested disciplinary proceedings are confidential under the Sarbanes-Oxley Act. The PCAOB’s inventory of enforcement matters includes audits of all sizes and varying complexity, including matters related to audits by large firms for issuer audit clients involved in the financial crisis.

So no one is talking. Fine, we’ll just have to take Charlie at his word. What we do know is that if the Board does decide to lay the smackdown on E&Y, they’re going to tell the entire universe about it via its “Disciplinary Orders,” and as CG notes in his report, if the PCAOB does bring an action against E&Y it will be the highest profile enforcement action in its short history. Not exactly a BusinessWeek list.

Ernst & Young Probed Over Role in Lehman Bankruptcy [FBN]

SEC Might Bring Civil Charges Against Ernst & Young Soon, Maybe

Charlie Gasparino is reporting that the SEC probe in the Lehman Brothers bankruptcy is “ramping up” and that the Commission is under hella-pressure to bring civil charges against Dick Fuld, Ernst & Young and whoever else is on the list.

It’s unclear if the SEC can muster the necessary proof to show that top executives like former CEO Richard Fuld or the firm’s outside auditor Ernst & Young intentionally misled investors about the health of Lehman’s balance sheet in the months before it filed for bankruptcy in mid-September 2008, according to people close to the probe…It’s unclear when any charges might be filed by the SEC, but people close to the inquiry say the SEC believes it does bring one, it must do so “very soon,” possibly within a few months given a combination of the outrage over the report’s findings and that Lehman’s bankruptcy is going on two years old.

Okay, so things are urgent but not that urgent. It’ll be Father’s Day maybe the 4th of July by the time we get a Mary Schapiro smackdown.

But that’s not all! Things are really serious at Ernst & Young now because Charlie reports that E&Y “has hired high-profile white-collar attorney William McLucas as its outside counsel in the matter, people close to the firm say. McLucas had been the SEC’s enforcement chief before entering private practice.” We checked with our friends over at ATL and it turns out that Mr McLucas is a partner at high-powered WilmerHale and was lead counsel to the special committee of the Enron Board that reported “hard-hitting findings” (sayeth he).

Since Mr McLucas doesn’t take shit from the likes of short-seller Jim Chanos, we’ll take Charlie’s word that things are pretty serious over at 5 Times Square.

E&Y spokesman Charlie Perkins declined to comment.

SEC Probe of Lehman Picking Up Steam [FBN]
See also:
Gasparino: SEC May Be Forced To Do Something About This Whole Lehman Thing [DB]

Compensation Watch ’10: Ernst & Young Still Planning on Merit Increases

A little more from inside E&Y to round out the week. We got a tip earlier in the week that there was an oddly-timed town hall going on in Chicago this week. Our tipster indicated that the meetings usually occur after the June 30 year-end or in September.

We asked around and from the sounds of it, the meeting amounted to an extremely sober pep rally. The need for a little HR cheerleading is completely understandable, considering the month E&Y has had.


“[T]hey just talked about how they know morale is down, yet no plans for how to fix it. Additionally, they said there would be raises this year, but no mention of how large or small…[and] your basic HR ‘Thank’s for your help’ stuff.”

We haven’t heard the details for the cause “low morale” but it’s quite possible that it could be due, at least in part, to the ehmanlay rothersbay uckshowfay. Plus, busy season is in the home stretch and most people are just over it at this point. As far as fix for morale, our suggestions of Canadidan Tuxes, Timberlands and Hitler videos are obviously being ignored with extreme prejudice. We’re all out of suggestions. Maybe they aren’t the best ideas but at least we’re trying.

The silver lining here is that comp increases are still on the agenda after the initial announcement made by Steve Howe back in January. If they go back on this promise — we’re confident they won’t — you can just blame it on Dick Fuld.