Office of the Chief Accountant
April 27, 2004
Deloitte Touche Tohmatsu
Dear Mr. Horstmann:
The staff has reviewed your letter of April 22, 2004 concerning Deloitte Touche Tohmatsu's ("DTT") sale by its member firms Deloitte SA and Deloitte Conseil SAS (together, "Deloitte"), DTT's member firms in France, of their consulting business which has operated under the name INEUM Conseil et Associes or INEUMconsulting since September 22, 2003 (referred to as "INEUM"), to the former consulting partners of INEUM (referred to as the "INEUM Partners"). In your letter, you detail key terms of the transaction and conditions that DTT, including entities that have been considered part of DTT under Rule 2-01(f)(2) of Regulation S-X, have complied or will comply with in connection with the completion of the transaction. Your letter concludes that, based on its compliance with those terms and conditions, DTT should not be considered to have a "mutual or conflicting interest" or a "direct or material indirect business relationship" with, or a "direct financial interest or material indirect financial interest" in, any of its audit clients that are also clients of or enter into business relationships with or invest in INEUM, or that are invested in by INEUM or any departing INEUM Partners or employees.
As you are aware, the Sarbanes-Oxley Act of 2002 (the "Act") expressly prohibits any registered public accounting firm, or any associated person or entity of that firm, from providing certain non-audit services to its audit clients that are "issuers" as defined in the Act. The representations set forth in your letter indicate that DTT has already taken the following steps to divest INEUM: (1) Deloitte has sold the majority of its interest in INEUM in a private transaction to the INEUM Partners and other investors for cash consideration. Deloitte and its partners will hold less than 20% of the outstanding INEUM shares, calculated on a diluted basis. These shares of INEUM held by Deloitte and its partners will be sold, or otherwise redeemed, within three years from the date of DTT's letter. (Prior to the Sarbanes-Oxley Act, when accounting firms requested the staff's views regarding separation transactions, the staff generally expected that any equity interest held by the firm or its partners would be sold or redeemed within five years from the closing of the transaction. Going forward, the staff generally would expect a firm requesting the staff's views to hold any equity interest for a period of three years or less from the closing date of a transaction. On a transition basis, the staff will not object to the holding period commencing at the date of DTT's letter in this particular case.); (2) DTT has no corporate governance, or management role in INEUM or direct or indirect financial ties with INEUM (other than Deloitte's temporary ownership of the aforementioned equity of INEUM and transition service arrangements); (3) INEUM does not and will not, beyond a three year period as set forth in DTT's letter, use the DTT names unless there is a clear indication that they are separate firms; (4) DTT does not and will not receive from INEUM any royalty, interest, dividend or other payments, and there is no revenue or profit sharing between DTT and INEUM; (5) DTT and INEUM are under no obligation to refer clients to one another and there will be no referral fees or other forms of compensation to each other for referrals; (6) under the Non-Compete Agreement, DTT and INEUM have agreed to provide only certain services to each other's clients through September 22, 2008, and those services are and will be provided under separate engagements; (7) shared services between DTT and INEUM are limited and transitional in nature and are for a period of three years; and (8) INEUM has no obligation to DTT in connection with any retirement obligation and DTT has no obligation to INEUM Partners in connection with retirement benefits of former partners.
Assuming that the representations set forth in your letter are and continue to be accurate, and further assuming that DTT continues to comply with each of the terms and conditions set forth in your letter, the Office of the Chief Accountant ("OCA" or the "staff") will not recommend an enforcement action asserting that DTT lacks independence as a result of non-audit services provided to DTT's audit clients by INEUM or its employees. Of course, DTT otherwise remains fully subject to the Commission's independence requirements, as well as the provisions of the Act, with respect to matters not expressly covered by your letter and this response. OCA has taken this position based on the specific facts and circumstances represented in your letter. DTT will consent to any review deemed necessary by the staff, or an appropriate independent party designated by the Commission or the staff (such as the Public Company Accounting Oversight Board) to ascertain compliance. If the divestiture is found not to have satisfied the terms and conditions represented to the staff or if any of the remaining terms or conditions in your letter are not met, the staff's position will be vitiated, and the staff may recommend an enforcement action. Further, OCA has taken this position based on its evaluation of the relevant policy considerations and does not thereby adopt or endorse the analysis or conclusions set forth in your letter. This response expresses OCA's position only on these particular facts and circumstances and does not purport to express any legal conclusions on this or any other matter.
Andrew D. Bailey, Jr.
April 22, 2004
Office of the Chief Accountant
Re: Deloitte SA / INEUM
We hereby request that the Staff of the Office of the Chief Accountant (the "Staff") of the Securities and Exchange Commission (the "Commission" or "SEC") advise that, based upon and subject to the matters referred to herein, it will not recommend that the Commission take enforcement action against Deloitte Touche Tohmatsu, a Swiss Verein ("DTT"), or its member firms, or its or their respective subsidiaries or any other firms conducting audit activities for SEC registrants under the name "Deloitte Touche Tohmatsu," "Deloitte Touche," "Tohmatsu" and other combinations or derivations thereof or otherwise as part of the Deloitte Touche Tohmatsu network of firms or "accounting firm"1 (collectively, for the purposes of this letter only, "DTT"),2 asserting that DTT is not "independent" based upon the attribution to DTT of the consulting activities of the former consulting business of Deloitte SA and Deloitte Conseil SAS (together, "Deloitte"), DTT's member firms in France, which consulting business has operated under the name INEUM Conseil et Associes or INEUMconsulting since September 22, 2003 (referred to in this letter as "INEUM"). INEUM was sold by Deloitte to the former consulting partners (the "INEUM Partners") and other investors in a private transaction that was consummated on September 22, 2003.
We believe that as a result of the aforementioned transaction, that DTT and INEUM are already substantially separate organizations. Under these circumstances, we believe the terms of this separation transaction for Ineum, including the conditions proposed herein, serve as a basis for the staff to grant the relief requested.
The federal securities laws require that financial statements filed with the Commission by public companies, investment companies, broker-dealers, public utilities, investment advisers and others be certified (audited) by independent public accountants.3 The Commission has adopted Rule 2-01 of Regulation S-X regarding independence of accountants. The general standard set forth in Rule 2-01(b) provides that:
The Commission will not recognize an accountant as independent, with respect to an audit client, if the accountant is not, or a reasonable investor with knowledge of all relevant facts and circumstances would conclude that the accountant is not, capable of exercising objective and impartial judgment on all issues encompassed within the accountant's engagement.4
Rule 2-01(b) further provides that:
In determining whether an accountant is independent, the Commission will consider all relevant circumstances, including all relationships between the accountant and the audit client, and not just those relating to reports filed with the Commission.
The preliminary note to Rule 2-01 states that, in considering the standard set forth in Rule 2-01(b), the Commission looks to, among other criteria, whether the relationship or the provision of service "creates a mutual or conflicting interest between the accountant and the audit client."5 Rule 2-01(c) applies the standards set forth in Rule 2-01(b) to particular circumstances that are considered to impair an accountant's independence.6 For example, Rule 2-01(c)(1) provides that an accountant will not be considered independent if "the accountant has a direct financial interest or a material indirect financial interest in the accountant's audit client . . . ." In addition, Rule 2 01(c)(3) provides that:
An accountant is not independent if, at any point during the audit and professional engagement period, the accounting firm or any covered person in the firm has any direct or material indirect business relationship with an audit client, or with persons associated with the audit client in a decision-making capacity, such as the audit client's officers, directors or substantial stockholders.
For purposes of Rule 2-01, "accounting firm" means "an organization . . . that is engaged in the practice of public accounting . . . and all of that organization's departments, divisions, parents, subsidiaries, and associated entities, including those located outside the United States." 17 C.F.R. 210.2-01(f)(2) (emphasis added). Although not expressly defined by rule, the Commission has stated that it intends the phrase "associated entity" to:
reflect our staff's current practice of addressing these questions in light of all relevant facts and circumstances, looking to the factors identified in our staff's previous guidance on this subject. While the rules we adopt do not provide accounting firms with the certainty of our proposed rule, we are convinced that a more flexible approach is warranted as the types and nature of accounting firms' business arrangements continue to develop
Revision of the Commission's Auditor Independence Requirements, 65 Fed. Reg. 76008, 76059 (footnote omitted). As part of this guidance, the Commission also cited numerous prior no-action letters that had been issued to address the separation of consulting businesses from accounting firms. Id. at 76059, n.491 (citing various no-action letters). In the prior no-action letters, the staff has examined whether the firms are associated entities by considering such factors as whether 1) the accounting firm has any ownership interest in the consulting firm; 2) there are restrictions on the use of the accounting firm's name by the consulting firm; 3) the firms' corporate governance structures are separate; 4) there is any revenue sharing between the firms; 5) there are any joint marketing agreements between the firms; and 6) there will be any on-going shared services between the firms.
On July 30, 2002, the Sarbanes-Oxley Act of 2002 (''Sarbanes-Oxley Act'' or "the Act") was enacted. Title II of the Sarbanes-Oxley Act, entitled "Auditor Independence," required the Commission to adopt, by January 26, 2003, final rules under which certain non-audit services will be prohibited, conflict of interest standards will be strengthened, auditor partner rotation and second partner review requirements will be strengthened, and the relationship between the independent auditor and the audit committee will be clarified and enhanced. However, Congress left the definitions of "accounting firm" and "associated entity" untouched. In its final rulemaking to incorporate Title II of the Sarbanes-Oxley Act into the SEC's rules and regulations, the SEC also did not amend or modify its definitions of "accounting firm" or "associated entity." See 68 Fed. Reg. 6006 (February 5, 2003). Consequently, Rule 2-01 continues to direct firms to refer to the staff's practice of addressing these questions in light of all relevant facts and circumstances, looking to the factors identified in the staff's previous guidance on this subject.
The Commission's interpretations of Rule 2-01 are also collected in Section 600 of the Codification of Financial Reporting Policies (the "Codification"), entitled "Matters Relating to Independent Accountants."7 Section 602.02.e of the Codification addresses business relationships, such as joint ventures, limited partnership agreements, and investments, that may impair an auditor's independence. That section provides, in part, that:
Direct and material indirect business relationships . . . with a client . . . will adversely affect the accountant's independence with respect to that client. Such a mutuality or identity of interests with the client would cause the accountant to lose the appearance of objectivity and impartiality in the performance of his audit because the advancement of his interest would, to some extent, be dependent upon the client.
DTT desires to obtain assurance that, following the transaction described below, INEUM would not be considered an associated entity of DTT, such that to the extent that INEUM, or any partner or employee of INEUM provides services for, enters into business relationships with, or invests in or accepts investments from, DTT audit clients, DTT's independence will not be deemed impaired pursuant to Rule 2-018 or rules that are promulgated thereunder or any other provisions of the Commission's independence rules.
DTT believes that under the conditions detailed in this letter, that INEUM would not be considered an associated entity of DTT under the terms and conditions governing this Transaction (as defined below), and that DTT would not have a "mutuality of interest" or a "direct or material indirect business relationship" with, or a "direct financial interest or material indirect financial interest" in any of its audit clients as a result of the activities of INEUM, its partners and employees (which activities include, without limitation, providing services to, entering into business relationships with and making or receiving investments in or from third parties). This conclusion is based on the representations and conditions detailed in this letter, which, among other things: 1) explicitly limit at the outset, and within three years end, any retained equity interest in INEUM by Deloitte or any other entity included in the definition of DTT; 2) impose limitations on the use of the DTT names by INEUM; 3) require a strict separation of the corporate governance, management, and financial structures and interests between all entities included in the definition of DTT and INEUM; 4) prohibit any revenue or profit sharing between any entity included in the definition of DTT and INEUM; 5) prohibit any joint marketing between DTT and INEUM; and 6) limit any services between DTT and INEUM to those that are transitional in nature.
In August 2003, Deloitte initiated the sale of its consulting business in France by first transferring its interest in the consulting business to a newly organized entity, INEUM. Pursuant to the terms of a Transaction Agreement (the "Transaction Agreement"), and other agreements specified therein (the "Ancillary Agreements" and, together with the Transaction Agreement, the "Agreements"), Deloitte then sold the majority of its interest in INEUM in a private transaction to the INEUM Partners and other investors for cash consideration. Upon completion of the transaction, Deloitte and its partners held less than 20% of the outstanding INEUM shares, calculated on a diluted basis.9 In addition, neither INEUM nor the other investors involved in the Transaction owns any equity interest in Deloitte or DTT.
The above described restructuring, equity share sales, and Agreements, together with the Conditions to No-Action Confirmation listed below are referred to collectively as the "Transaction."
Other key terms of the Transaction are:
Conditions to No-Action Confirmation
DTT requests that, subject to compliance with the following conditions, the Staff not recommend enforcement action to the Commission based upon the attribution to DTT of the activities of INEUM since the completion of the Transaction:
In certain cases, Deloitte and INEUM have entered into sublease or license arrangements for office space that is currently shared with Deloitte. Under these arrangements, INEUM will pay its proportionate share of the cost of such space based on the total square footage of each facility used by or allocated to INEUM, under the terms of such subleases or licenses and, with respect to related services and capital costs, under the terms of the TSAs. The sublease or license arrangements for each space will not extend beyond the term of the lease held by Deloitte. With respect to new leases for office space, Deloitte and INEUM individually will enter directly into such leases with a landlord and will not enter into new subleases with each other for office space after the expiration of the leases currently held by Deloitte. Until such relocations are made, Deloitte and INEUM will have separate and distinct office signage and their offices will be clearly distinguishable from one another although they may share certain common facilities.
In connection with its request herein, each of DTT and INEUM, insofar as each item below relates to it, hereby confirms to the Staff that:
Based upon the representations contained herein and in the materials provided herewith, and subject to continued compliance with the foregoing conditions, we hereby request that the Staff advise that the Office of the Chief Accountant will not assert or recommend enforcement action that asserts that DTT's independence has been impaired to the extent INEUM or any of its partners or employees provides services for, enters into business relationships with, or invests in or accepts investments from, DTT audit clients. We fully understand that if the Staff takes a no-action position, that position will be based on the representations and undertakings set forth in this letter and continued compliance with the material terms of the related executory contracts. We further understand that failure to comply with any of these conditions would invalidate the relief granted by the Staff in response to this request as of the date the Staff's relief was communicated to DTT.
Certain matters described above have not yet been publicly announced. Accordingly, pursuant to 17 C.F.R. § 200.81(b), we hereby request confidential treatment of the contents of our communications with the Staff with respect to all issues relating to this letter (the "Confidential Material") until a date 120 days after release of your response to us, or such earlier date as the Staff is advised by us that all of the information contained in the Confidential Material has been made public. However, when the Staff determines to grant the no-action relief requested herein, we understand and agree that the letter itself and the text of your response to the letter may be made public immediately. In addition to this request for confidential treatment, we will request, under separate cover, confidential treatment for the transaction documentation and the other materials furnished to you in connection with this letter pursuant to the provisions of 17 C.F.R. § 200.83.
* * *
If for any reason you do not concur with the views expressed in this letter, we respectfully request an opportunity to discuss this matter with the Staff prior to any written response to our letter. If you have any questions or need any additional information concerning the foregoing, please do not hesitate to call Scott Bayless at 202-879-5315, or Douglas Cox of Gibson, Dunn & Crutcher LLP at (202) 887-3531.
Deloitte Touche Tohmatsu
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