U.S. SECURITIES AND EXCHANGE COMMISSION
Litigation Release No. 19147 / March 21, 2005
Accounting and Auditing Enforcement
Release No. 2216 / March 21, 2005
SEC v. Time Warner Inc., Civil Action No. 1:05CV00578 (GK) (D.D.C.)
In the Matter of James W. Barge, Pascal Desroches, and Wayne H. Pace,
Exchange Act Rel. No. 34-51400 / March 21, 2005
Accounting and Auditing Enforcement
Release No. 2215 (March 21, 2005)
SEC CHARGES TIME WARNER WITH FRAUD, AIDING AND ABETTING FRAUDS BY OTHERS, AND VIOLATING A PRIOR CEASE-AND-DESIST ORDER; CFO, CONTROLLER, AND DEPUTY CONTROLLER CHARGED WITH CAUSING REPORTING VIOLATIONS
Time Warner Agrees to $300 Million Penalty, Antifraud Injunction and Order to Comply with Prior Cease-and-Desist Order; Will Restate Its Financial Results and Engage Independent Examiner
CFO, Controller and Deputy Controller Consent to Cease-and-Desist Order
The Securities and Exchange Commission today charged Time Warner Inc. (formerly known as AOL Time Warner) with materially overstating online advertising revenue and the number of its Internet subscribers, and with aiding and abetting three other securities frauds. The Commission also charged that the company violated a Commission cease-and-desist order issued against America Online, Inc. on May 15, 2000. In a separate administrative proceeding, the Commission charged Time Warner CFO Wayne H. Pace, Controller James W. Barge, and Deputy Controller Pascal Desroches with causing violations of the reporting provisions of the federal securities laws.
Without admitting or denying the allegations in the complaint, Time Warner consented to the entry of a judgment ordering it to comply with the May 15, 2000 cease-and-desist order against AOL and enjoining Time Warner from violating Section 17(a) of the Securities Act of 1933, Sections 10(b), 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Securities Exchange Act of 1934 ("Exchange Act"), and Exchange Act Rules 10b-5, 12b-20, 13a-1, 13a-11, 13a-13, and 13b2-1. The judgment also orders Time Warner to pay $300 million in civil penalties, which the Commission will request be distributed to harmed investors. The penalties cannot be used to offset any judgment or settlement in any related shareholder suit. In addition, Time Warner agreed to restate its historical financial results to reduce its reported online advertising revenues by approximately $500 million (in addition to the $190 million already restated) for the fourth quarter of 2000 through 2002 and to properly reflect the consolidation of AOL Europe in the company's 2000 and 2001 financial statements. The company also agreed to engage an independent examiner to determine whether the company's historical accounting for certain transactions was in conformity with generally accepted accounting principles (GAAP).
In the separate administrative action, Pace, Barge, and Desroches consented, without admitting or denying the allegations, to the entry of an administrative order that finds that they caused reporting violations by the company based on their roles in accounting for $400 million paid to the company by Bertelsmann AG in two sets of transaction. The order directs them to cease-and-desist from causing any violations and any future violations of Section 13(a) of the Exchange Act and Exchange Act Rules 13a-1 and 13a-13.
The Commission's complaint against Time Warner, which was filed in the United States District Court for the District of Columbia, includes the following allegations:
Fraudulent Round-Trip Transactions to Inflate Online Advertising Revenue
Beginning in mid-2000, stock prices of Internet-related businesses declined precipitously as, among other things, sales of online advertising declined and the rate of growth of new online subscriptions started to flatten. Beginning at this time, and extending through 2002, the company employed fraudulent round-trip transactions that boosted its online advertising revenue to mask the fact that it also experienced a business slow-down. The round-trip transactions ranged in complexity and sophistication, but in each instance the company effectively funded its own online advertising revenue by giving the counterparties the means to pay for advertising that they would not otherwise have purchased. To conceal the true nature of the transactions, the company typically structured and documented round-trips as if they were two or more separate, bona fide transactions, conducted at arm's length and reflecting each party's independent business purpose. The company delivered mostly untargeted, less desirable, remnant online advertising to the round-trip advertisers, and the round-trip advertisers often had little or no ability to control the quantity, quality, and sometimes even the content of the online advertising they received. Because the round-trip customers effectively were paying for the online advertising with the company's funds, the customers seldom, if ever, complained.
Aiding and Abetting Frauds
Several of the counterparties to the round-trip transactions were publicly traded companies. Three of these counterparties-Homestore, Inc., PurchasePro.com, Inc., and a California software company- improperly recognized revenue on the round-trip transactions and reported materially misstated financial results to their own investors.
As a consequence, the company aided and abetted the frauds of three public companies.
Fraudulent Use of Bulk Sales to Inflate the Number of AOL Subscribers
The company artificially inflated the number of AOL subscribers in the second, third, and fourth quarters of 2001 so it could report to the investment community that it had met its new subscriber targets, an important metric the market used to evaluate AOL (both before and after its merger with Time Warner). Specifically, the company counted members from "bulk subscription sales" to corporate customers (for distribution to their employees) when the company knew that the memberships had not, and mostly would not, be activated. In at least one instance, the company entered into round-trip arrangements to fund the corporate customers' purchases of bulk subscriptions. Additionally, in last-minute efforts to meet the quarterly targets, the company on at least four occasions shipped non-conforming bulk subscription membership kits to the customers prior to quarter-end with the understanding that it would turn around and replace them at a later date with conforming kits, but it nonetheless counted new subscribers from these sales as of the quarter-end.
Failure to Consolidate AOL Europe
From March 2000 through January 2002, the company failed to properly consolidate the financial results of AOL Europe in its financial statements. AOL Europe was originally a 50/50 joint venture between AOL and Bertelsmann. In March 2000, AOL entered into a contingent purchase agreement relating to Bertelsmann's interest in AOL Europe. The agreement gave AOL broad and direct powers enabling it to control the operations and assets of AOL Europe. In fact, AOL informed the European Commission (in the context of satisfying EC merger regulations) that Bertelsmann relinquished essentially all control regarding the operations or management of AOL Europe. GAAP requires consolidation when one entity has a controlling financial interest in another entity. The company's failure to properly consolidate AOL Europe resulted in material misstatements of its financial results, including overstatements of operating income and free cash flow in 2000 and 2001, overstatements of net income in 2000, understatements of net losses in 2001, and understatements of total debt in 2000 and 2001.
Violations of the Commission's Cease-and-Desist Order
The Commission issued a cease-and-desist order against AOL on May 15, 2000 because AOL violated reporting and books-and-records provisions of the federal securities laws. Thereafter, the company violated the cease-and-desist order by artificially inflating its online advertising revenue and the number of AOL subscribers, as well as its failure to consolidate AOL Europe's financial statements.
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Commission's Order Against Pace, Barge, and Desroches
The Commission's cease-and-desist order against Pace, Barge, and Desroches addresses their roles in accounting for transactions with Bertelsmann. In 2001 and 2002, the company inflated its online advertising revenue by $400 million in connection with transactions with Bertelsmann. In substance, Bertelsmann paid $400 million as consideration for amendments to the multi-billion-dollar contingent purchase agreement governing the company's purchase of Bertelsmann's interest in AOL Europe. The contract amendments had substantial value, and Bertelsmann offered to compensate the company for the amendments. Rather than accept cash in exchange for the amendments, however, the company requested that Bertelsmann purchase advertising in the aggregate amount of $400 million. The company then improperly and materially inflated its online advertising revenues by recognizing the $400 million as advertising revenue rather than as consideration received for amending the AOL Europe purchase agreement.
Pace, Barge, and Desroches were corporate-level finance and accounting executives at the company who were responsible for, among other things, reviewing and approving the accounting treatment recommended by the company's business units. In this role, they approved the company's accounting for the $400 million as advertising revenue. In doing so, they based their accounting decisions on the form of the transactions and oral and written representations, some of which were false and omitted material facts, by other company employees. They failed to pursue facts and circumstances that evidenced the true economic substance of the transactions. As a result, although others were responsible for negotiating the $400 million transactions, Pace, Barge, and Desroches each were a cause of the company's improperly accounting for the $400 million in annual and periodic reports filed with the Commission.
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The Commission's investigation into these matters continues.
SEC Complaint in this matter