United States of America
In the Matter of
KENNETH WILCHFORT, CPA
|ORDER INSTITUTING ADMINISTRATIVE PROCEEDINGS PURSUANT TO RULE 102(e)(3) OF THE COMMISSION'S RULES OF PRACTICE, MAKING FINDINGS, AND IMPOSING SANCTIONS|
The Securities and Exchange Commission ("Commission") deems it in the public interest that public administrative proceedings be, and hereby are, instituted against Kenneth Wilchfort, CPA ("Wilchfort" or "Respondent") pursuant to Rule 102(e)(3)(i) 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.2 below, which are admitted, Respondent consents to the entry of this Order Instituting Administrative Proceedings Pursuant to Rule 102(e)(3) 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. Kenneth Wilchfort, CPA, age 50, is a partner at Ernst & Young LLP ("E&Y"). Until approximately 1999, Wilchfort worked in the Assurance and Advisory Business Services ("AABS") practice of E&Y's Stamford, Connecticut office. Wilchfort served as the CUC International Inc. ("CUC") audit engagement partner from 1990 through the third quarter of 1996. Thereafter, as mandated by rotation requirements set by the SEC Practice Section of the American Institute of Certified Public Accountants, Wilchfort ceased serving as audit engagement partner. He continued to serve CUC and Cendant Corporation ("Cendant") as "Senior Advisory Partner." At the relevant time, Wilchfort was a certified public accountant licensed to practice in the States of New York and Connecticut.
2. On April 30, 2003, a final judgment was entered by consent against Wilchfort, permanently enjoining him from aiding and abetting an issuer that files with the Commission a report required to be filed with the Commission, pursuant to Section 13(a) of the Securities Exchange Act of 1934 ("Exchange Act"), and the rules and regulations promulgated thereunder, in violation of Section 13(a) of the Exchange Act or Rules 12b-20, 13a-1 or 13a-13 promulgated thereunder in the civil action entitled Securities and Exchange Commission v. Kenneth Wilchfort, CPA, and Marc Rabinowitz, CPA, Civil Action Number 03-0933, in the United States District Court for the District of Columbia.
3. The Commission's complaint alleges that Respondent improperly failed to detect that CUC's and Cendant's financial statements were not presented in conformity with generally accepted accounting principles and he had a duty to withhold his firm's audit report containing an unqualified opinion and take appropriate steps to prevent these financial statements from being filed with the Commission and circulated to investors. By issuing E&Y audit reports containing unqualified opinions on the financial statements and allowing the reports and the financial statements to be filed with the Commission and circulated to investors, Respondent aided and abetted CUC's and Cendant's violations of the reporting provisions of the federal securities laws.
In view of the foregoing, the Commission deems it in the public interest to impose the sanction agreed to in Respondent Wilchfort's Offer.
Accordingly, IT IS HEREBY ORDERED, effective immediately, that:
A. Wilchfort is suspended from appearing or practicing before the Commission as an accountant.
B. After four (4) years from the date of this Order, Respondent 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:
1. 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 the Commission that Respondent'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
2. an independent accountant. Such an application must satisfy the Commission that:
(a) Respondent, 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") or an organization providing equivalent oversight and quality control functions ("equivalent organization");
(b) Respondent, 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 or equivalent organization; and
(c) As long as Respondent appears or practices before the Commission as an independent accountant he will remain either a member of, or associated with a member firm of, the SEC Practice Section or equivalent organization, and will comply with all applicable SEC Practice Section or equivalent organization requirements, including all requirements for periodic peer reviews, concurring partner reviews, and continuing professional education.
C. The Commission will consider an application by Respondent to resume appearing or practicing before the Commission provided that his state CPA license is current and he has resolved all other disciplinary issues with the applicable state boards of accountancy. However, if state licensure is dependent on reinstatement by the Commission, the Commission will consider an application on its other merits. The Commission's review may include consideration of, in addition to the matters referenced above, any other matters relating to Respondent's character, integrity, professional conduct, or qualifications to appear or practice before the Commission.
By the Commission:
Jonathan G. Katz
1 Rule 102(e)(3)(i) 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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