United States of America
In the Matter of
JOHN GIESECKE JR., CPA
|ORDER INSTITUTING PUBLIC ADMINISTRATIVE PROCEEDINGS PURSUANT TO RULE 102(e) OF THE COMMISSION'S RULES OF PRACTICE, MAKING FINDINGS, AND IMPOSING REMEDIAL SANCTIONS|
The Securities and Exchange Commission ("Commission") deems it in the public interest that public administrative proceedings be, and hereby are, instituted against John Giesecke ("Respondent" or "Giesecke") pursuant to Rule 102(e)(3) of the Commission's Rules of Practice.1
In anticipation of the institution of these proceedings, Respondent has submitted an Offer of Settlement (the "Offer") which the Commission has determined to accept. Solely for the purpose 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 herein, except as to the Commission's jurisdiction over him and the subject matter of these proceedings and the findings contained in Section III.3. below, which are admitted, Respondent consents to the entry of this Order Instituting Public Administrative Proceedings Pursuant to Rule 102(e) of the Commission's Rules of Practice, Making Findings, and Imposing Remedial Sanctions ("Order"), as set forth below.
On the basis of this Order and Respondent's Offer, the Commission finds that:
1. Giesecke was the Chief Financial Officer ("CFO") of Homestore, Inc. ("Homestore") from December 1998 until about January 2001, when he was promoted to Homestore's Chief Operating Officer ("COO"). As Homestore's COO, Giesecke was responsible for certain of the company operations including integration of acquired businesses. While Giesecke was not responsible for Homestore's filings with the Commission throughout 2001, he still played a role in Homestore's financial reporting. Giesecke participated in quarterly analyst and investor conference calls, reviewed press releases and portions of the quarterly filings, and participated in certain meetings with Homestore's outside auditors. Giesecke is a Certified Public Accountant in the State of California. His license was inactive during the time he was CFO and COO of Homestore and remains inactive. He is 41 years old and lives in Malibu, California.
2. Homestore is, and at all relevant times was, a Delaware corporation with its principal place of business in Westlake Village, California. Homestore is an Internet provider of residential real estate listings and related content. Homestore's common stock is registered with the Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934 ("Exchange Act") and trades on Nasdaq.
3. On September 25, 2002, the Commission filed a complaint against Giesecke in SEC v. John Giesecke Jr., Joseph Shew, and John DeSimone, in the United States District Court for the Central District of California (the "Court") (Civil Action No. 02-7471SVW). On September 26, 2002, the Court entered a Final Judgment Of Permanent Injunction And Other Relief Against Defendant John Giesecke ("Judgment") which (a) permanently enjoins Giesecke from future violations of Section 17(a) of the Securities Act of 1933 and Sections 10(b) and 13(b)(5) of the Exchange Act and Rules 10b-5, 13b2-1, and 13b2-2 thereunder and aiding and abetting violations of Sections 13(a) and 13(b)(2)(A) of the Exchange Act and Rules 12b-20 and 13a-13 thereunder; (b) orders Giesecke to pay $3,284,075 in disgorgement plus $160,946 in prejudgment interest; (c) orders Giesecke to pay a civil penalty in the amount of $360,000; and (d) bars Giesecke from serving as an officer or director of a reporting company. Giesecke consented to the entry of the Judgment without admitting or denying any of the allegations in the complaint.
4. The Commission alleged that Homestore and Giesecke fraudulently inflated Homestore's revenue throughout the first three quarters of 2001. The complaint alleged that Homestore engaged in round-trip sales transactions that were improperly recognized as revenue. Specifically, Homestore, through Giesecke and others, overstated revenue in the first quarter by $15,000,000, or 16%, by $22,445,000, or 21%, in the second quarter, and by $8,965,000, or 8%, in the third quarter. The complaint further alleged that Giesecke knew about the round-trip transactions and that he took steps to hide their true nature from Homestore's auditors by making representations he knew were misleading. During 2001, Giesecke also reviewed all of Homestore's earnings releases and portions of the quarterly filings prior to their release.
In view of the foregoing, the Commission deems it in the public interest to impose the sanction agreed to in Respondent Giesecke's Offer.
Accordingly, IT IS HEREBY ORDERED, effective immediately:
Giesecke is suspended from appearing or practicing before the Commission as an accountant.
By the Commission.
Jonathan G. Katz
1 Rule 102(e)(3) provides, in relevant part, that:
The Commission, with due regard to the public interest and without preliminary hearing, may, by order, . . . 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.
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