Litigation Release No. 22241 / January 30, 2012
SEC v. Richard J. Senior et al., Civil Action No. 3:12CV60 (N.D. Ind., Jan. 30, 2012); SEC v. Brian S. Moore, Civil Action No. 3:12CV61 (N.D. Ind., Jan. 30, 2012)
FORMER OFFICERS AND ACCOUNTANTS AT BRITISH SUBSIDIARY OF SYMMETRY MEDICAL, INC. SETTLE FINANCIAL FRAUD CASE
SYMMETRY’S FORMER CEO SETTLES RELATED CLAWBACK CLAIM
BRITISH SUBSIDIARY’S OUTSIDE AUDITORS, FORMERLY WITH ERNST & YOUNG UK LLP, ACCEPT SUSPENSIONS FOR DEFICIENT AUDITS
Related Settled Administrative Proceedings Against Symmetry and its CFO Also Announced
The Securities and Exchange Commission today announced four enforcement actions arising from an alleged financial fraud spanning several years at a British subsidiary of the NYSE-listed Symmetry Medical, Inc. (“Symmetry”).
First, the Commission announced today that it has filed and, subject to Court approval, simultaneously settled charges against Richard J. Senior, Matthew Bell, Lynne Norman and Shaun P. Whiteley arising from the alleged financial fraud. According to the Commission’s Complaint, the fraud was orchestrated and carried out by senior executives and accounting staff of the Sheffield, England-based Symmetry Medical Sheffield LTD, f/k/a Thornton Precision Components, Limited (hereinafter “TPC”), particularly by Senior, Bell, Norman and Whiteley, who were, respectively, Symmetry’s VP for European Operations, TPC’s Finance Director, TPC’s Controller and a TPC Management Accountant. According to the Complaint, the fraud involved the systematic understatement of expenses and overstatement of assets and revenues, and materially distorted the financial statements of the Indiana-headquartered Symmetry, into which TPC’s financials were consolidated, for a period running from Symmetry’s December 2004 initial public offering through its second fiscal quarter of 2007. The Complaint further alleges that during the fraud, Senior, Bell and Norman made false certifications as to the accuracy of the financial information reported to Symmetry by TPC, and lied to TPC’s outside auditors. Finally, the Complaint alleges that Senior and Bell sold Symmetry stock during the fraud, at prices each knew or recklessly disregarded were inflated by the fraud at TPC.
According to the Complaint, by their conduct, Senior, Bell, Norman and Whiteley violated Sections 10(b) and 13(b)(5) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rules 10b-5 and 13b2-1 thereunder, and aided and abetted Symmetry’s violation of Exchange Act Sections 13(a), 13(b)(2)(A) and 13(b)(2)(B), and Rules 12b-20, 13a-1 and 13a-13 thereunder; Senior and Bell also violated Section 17(a) of the Securities Act of 1933; and Senior, Bell and Norman also violated Exchange Act Rule 13b2-2. The four defendants’ signed Consents—which are subject to approval by the Court—provide that, without admitting or denying the Commission’s allegations, defendants Senior, Bell and Norman would be barred from serving as an officer or director of any public company. (Additionally, Bell, Norman and Whiteley each consented to be permanently barred, in follow-on administrative proceedings, from appearing or practicing before the Commission as accountants.) The final judgment to which Bell consented further orders that he is liable for disgorgement of $136,209 together with $50,728 in prejudgment interest thereon, but, based on his sworn financial statements and supporting documentation, waives payment of disgorgement and prejudgment interest; and the judgment to which Senior consented defers resolution of the monetary portion of his case pending the completion of asset discovery, with which Senior would be ordered to cooperate. Each defendant would also be permanently enjoined against future violations of the statutes and rules each is alleged to have violated.
The Commission also announced that it has filed, and, subject to Court approval, simultaneously settled, a civil action against Symmetry’s former CEO, Brian S. Moore, seeking reimbursement for bonuses and other incentive-based and equity-based compensation pursuant Section 304 of the Sarbanes-Oxley Act of 2002. The Commission’s Complaint alleges that Symmetry was required to restate its annual financial statements for 2005 and 2006, as well as other reporting periods, as a result of misconduct in the reporting of TPC’s financials. The Complaint further alleges that Moore received from Symmetry bonuses and incentive-based and equity-based compensation, and realized profits from the sale of Symmetry stock, during the 12-month periods following the restated financials, but has made no reimbursement thereof. The Complaint does not allege that Moore engaged in the fraud. Moore’s signed Consent—which is subject to approval by the Court—provides that, without admitting or denying the Commission’s allegations, Moore would agree to issuance of a Final Judgment ordering him make reimbursement of $450,000 to Symmetry.
The Commission further announced that, separately, it has instituted and simultaneously settled administrative proceedings against two Associate Chartered Accountants in the United Kingdom, Christopher J. Kelly and Margaret Hebb née Whyte, who were the former audit partner and audit manager, respectively, on Ernst & Young UK LLP’s audits of TPC for the 2004 through 2006 fiscal years (in the case of Kelly) and for the 2005 and 2006 fiscal years (in the case of Hebb). Kelly and Hebb consented to issuance of the Commission’s Order and the sanctions it imposed, without admitting or denying the Order’s findings. The Order found that both Kelly and Hebb engaged in improper professional conduct by, among other things, failing to properly audit TPC’s accounts receivable balances and inventory. Based on these findings, the Order suspended both Kelly and Hebb from appearing or practicing before the Commission as accountants, with the opportunity to seek reinstatement after two years. See Matter of Christopher J. Kelly, ACA and Margaret Hebb, ACA, Admin. Proc. File No. 3-____ (Jan. 30, 2012)
Finally, the Commission further announced that, separately, it has instituted and simultaneously settled administrative proceedings against Symmetry and its CFO, Fred L. Hite. Symmetry and Hite consented to issuance of the Commission’s Order and the sanctions it imposed, without admitting or denying the Order’s findings. With respect to Symmetry, the Order found that, as a result of the fraud at TPC, Symmetry (i) filed periodic reports with the Commission that included materially false and misleading financial statements in violation of Exchange Act Section 13(a) and Rules 12b-20, 13a-1 and 13a-13 and (ii) maintained materially inaccurate books, records and accounts in violation of Exchange Act Section 13(b)(2)(a); and that Symmetry also failed to devise and maintain effective internal accounting controls in violation of Exchange Act Section 13(b)(2)(B). With respect to Hite, the Order found that by failing to provide an internal audit status report concerning TPC to Symmetry’s Audit Committee in July 2006, Hite violated Exchange Act Section 13(b)(5) and was a cause of Symmetry’s violation of Exchange Act Section 13(b)(2)(B); and that by failing to reimburse Symmetry for bonuses, incentive- and equity-based compensation, and Symmetry stock-sale proceeds he received during periods embraced by Symmetry’s restatement, Hite violated Section 304 of the Sarbanes-Oxley Act. Based on the foregoing findings, the Commission ordered Symmetry and Hite to cease-and-desist from committing or causing future violations of the relevant provisions, and ordered Hite to pay a $25,000 penalty and make reimbursement of $185,000 to Symmetry. See Matter of Symmetry Medical, Inc. and Fred L. Hite, Admin. Proc. File No. 3-14723 (Jan. 30, 2012).
The Commission acknowledges the assistance of the United Kingdom’s Financial Services Authority (“FSA”) in this matter.