UNITED STATES OF AMERICA
SECURITIES AND EXCHANGE COMMISSION
SECURITIES EXCHANGE ACT OF 1934
Release No. 45814 / April 24, 2002
ACCOUNTING AND AUDITING ENFORCEMENT
Release No. 1547 / April 24, 2002
File No. 3-10764
In the Matter of
KENNETH W. HAVER, CPA
| ORDER INSTITUTING PUBLIC
PROCEEDINGS AND FINDINGS
AND ORDER PURSUANT TO RULE
102(e) OF THE COMMISSION'S
RULES OF PRACTICE|
The Securities and Exchange Commission ("Commission") deems it appropriate and in the public interest that public administrative proceedings be, and hereby are, instituted against Kenneth W. Haver ("Haver"), a certified public accountant, pursuant to Rule 102(e)(3) of the Commission's Rule of Practice.1
In anticipation of the institution of these public administrative proceedings, Haver has submitted an Offer of Settlement which the Commission has determined to accept. Solely for the purposes of these proceedings and any other proceedings brought by or on behalf of the Commission or to which the Commission is a party, and without admitting or denying the findings, except that Haver admits to the Commission's finding that a Final Judgment of Permanent Injunction ("Final Judgment") has been entered against him as set forth in Section III.C., and Haver admits the jurisdiction of the Commission over himself and over the subject matter of this proceeding, Haver consents to the entry of this Order Instituting Public Proceedings and Opinion and Order Pursuant to Rule 102(e) of the Commission's Rules of Practice ("Order").
On the basis of this Order and Haver's Offer of Settlement, the Commission makes the following findings:
- Kenneth Haver, age 43, is a resident of Akron, Ohio, and was the chief financial officer of Telxon Corporation ("Telxon") until February 1999. Haver is and has been a certified public accountant licensed to practice in the State of Ohio. Haver has practiced before the Commission within the meaning of Rule 102(f) of the Commission's Rules of Practice in connection with the preparation of Telxon's financial statements and other documents.
- Telxon is a Delaware corporation that manufactures hand held computing devices and related systems. During the relevant time period, Telxon's headquarters were in Akron, Ohio, and its common stock was registered with the Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934 ("Exchange Act") and listed on the NASDAQ national stock trading system.
- On March 5, 2002, the Commission filed a complaint against Haver in Securities and Exchange Commission v. Kenneth W. Haver, ("SEC v. Haver"), in the United States District Court for the Northern District of Ohio, Civil Action No. 5:02 CV 414. On March 13, 2002, Haver consented to the entry of the Final Judgment against him in SEC v. Haver, without admitting or denying the allegations in the complaint, except as to jurisdiction, which Haver admitted. On April 9, 2002, the United States District Court for the Northern District of Ohio entered the Final Judgment, which permanently enjoins Haver from violating Sections 10(b) and 13(b)(5) of the Exchange Act and Rules 10b-5 and13b2-1 promulgated thereunder, and further enjoins him from aiding and abetting violations of Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act and Rules 12b-20, 13a-1 and 13a-13 thereunder.
- The Commission's complaint in SEC v. Haver alleges, among other things, that during the quarter ended September 30, 1998, Haver participated in a fraudulent revenue recognition scheme at Telxon that materially inflated Telxon's revenues and profits. Haver caused Telxon to recognize revenue that was not in conformity with Generally Accepted Accounting Principles in connection with three significant transactions. The inflated revenues and profits were reported in Telxon's Form 10-Q for the quarter ended September 30, 1998 and caused the financial statements in that document to be materially false and misleading. According to the complaint, Haver knew, or was reckless in not knowing, that the financial statements incorporated into Telxon's Form 10-Q for the quarter ended September 30, 1998, which was signed by Haver and filed with the Commission, were materially false and misleading as a result of his conduct.
Based on the foregoing, the Commission deems it appropriate and in the public interest to accept the Offer of Settlement submitted by Haver and accordingly,
IT IS HEREBY ORDERED, effectively immediately, that:
- Haver is suspended from appearing or practicing before the Commission as an accountant.
- After five years from the date of this Order, Haver may request that the Commission consider his reinstatement by submitting an application (attention: Office of the Chief Accountant) to resume appearing or practicing before the Commission as:
- a preparer or reviewer, or a person responsible for the preparation or review, of any public company's financial statements that are filed with the Commission. Such an application must satisfy that Haver's work in his practice before the Commission will be reviewed either by the independent audit committee of the public company for which he works or in some other acceptable manner, as long as he practices before the Commission in this capacity; and/or
- an independent accountant. Such an application must satisfy the Commission that:
- Haver or the firm with which he is associated is a member of the SEC Practice Section of the American Institute of Certified Public Accountants Division for CPA Firms ("SEC Practice Section");
- Haver or the firm has received an unqualified report relating to his or the firm's most recent peer review conducted in accordance with the guidelines adopted by the SEC Practice Section; and
- as long as Haver appears or practices before the Commission as an independent accountant, he will remain either a member of the SEC Practice Section or associated with a member firm of the SEC Practice Section, and will comply with all applicable SEC Practice Section requirements, including all requirements for periodic peer reviews, concurring partner reviews, and continuing professional education.
- The Commission's review of an application by Haver to resume appearing or practicing before it may include consideration of, in addition to the matters referenced above, any other matters relating to Haver's character, integrity, professional conduct, or qualifications to appear or practice before the Commission.
By the Commission.
Jonathan G. Katz
|1 || Paragraph (3) of Rule 102(e) provides, in relevant part, that:
...(i) The Commission, with due regard to the public interest...may...suspend from appearing or practicing before it any...accountant...who has been by name...permanently enjoined by any court of competent jurisdiction, by reason of his or her misconduct in an action brought by the Commission, from violating or aiding and abetting the violation of any provision of the Federal securities laws or of the rules and regulations thereunder.