Some companies are rising from the dead. They pop up in the ranks of enforcement actions from the Security and Exchange Commission, and they’re never heard from again.
Recently, the commission issued an administrative order against a dissolved company called Florida First Equities Corp. The company has not filed with the SEC in 19 years. The company had filed yearly reports since 1974, but it wasn’t until August that the commission decided the company was delinquent and revoked its registration.
The commission took the same action in an administrative proceeding against a dissolved company called Comdial Corp., which hasn’t filed in seven years.
“That’s because it doesn’t exist,” said Steven De Korne, a representative for privately held Vertical Communications Inc., which acquired Comdial in 2005.
For the SEC, cleaning its rolls of void and dissolved companies is a regular part of business. But former SEC officials say it’s often just housekeeping, something not clearly noted when the commission reports enforcement numbers — the highest ever in 2011 — to Congress.
In February, the commission told Congress in its budget justification that the SEC had racked up 735 enforcement actions for 2011, more than have ever been filed in a reporting year, which ends every September.
But of these, 121 actions — 16.5 percent — were administrative proceedings to revoke registration.
Some are actions against functioning, truly delinquent companies. Other companies haven’t existed for years.
“It’s crazy to suggest that those cases are as important or should be counted the same way as another kind of case,” said Kit Addleman, former director of the SEC’s Regional Office in Atlanta.
Two days before the Comdial enforcement order, the SEC scored a $26 million settlement from Pfizer Inc. after a sprawling eight-year foreign bribery investigation. The case included 27 months of settlement talks alone and a globe-spanning investigation into conduct by employees in eight countries, stretching back to 2001.
In contrast, revocations take relatively little resources, and, in the case of defunct companies, have little impact on a company’s shareholders — because there are none.
But in the SEC’s stats, all actions count the same.
The commission notes the importance of clearing its rolls so that dormant shell companies can’t be used by fraudsters. Often, several companies have revocations against them in a single proceeding, something that the SEC said won’t reflect the full amount of work. If each defendant had a separate action, the commission would have totaled 630 actions just for revocations in 2011.
Nontheless, Addleman, now a partner at Haynes and Boone LLP in Dallas-Fort Worth, said revocations do inflate numbers and points to a variety of other enforcement strategies that can skew statistics.
Cases can be split, meaning a number of actions come from one investigation. They can come with tag-a-long actions, where there’s both a court action and an administrative proceeding. Or in the case of revocations, the actions can just be a matter of clearing out the enforcement drawer.
Overall, Pfizer gets two tallies in the enforcement stats, one for itself, and one for Wyeth LLC, another pharmaceutical company Pfizer bought five years ago, which settled separately for $18.9 million. The SEC alleged different conduct in that case, including violations at Wyeth before the acquisition.
In other cases, the SEC splits cases where the conduct is nearly identical in separate complaints.
In Addleman’s former office in Atlanta, enforcers in September filed five complaints related to a single insider trading scheme. Four defendants agreed to settle, and Addleman points out that the work would be identical had they been brought under one complaint.
The SEC says that litigation decisions are made on a case-by-case basis but not because the commission wants bigger statistics.
Numbers are boosted Addleman said when an enforcement action comes with a follow-on administrative proceeding to add penalties. The work isn’t greater, but the case counts twice.
A representative from the SEC said these follow-on proceedings can be crucial, particularly if the commission wants to bar an investment broker or dealer from the industry, something the SEC said is often fiercely contested and can’t be done in court.
Luke Cadigan, former assistant director of enforcement in the SEC’s Boston Regional Office, said that though less intensive enforcement actions can boost statistics, the work behind other investigations doesn’t always show in the numbers.
“It’s tough to say because on the other hand, the numbers sometimes don’t quite capture the time, effort, and resources that the SEC commits to significant investigations, not all of which result in actions,” said Cadigan, now a partner at K&L Gates LLP.
Addleman echoed this idea, saying the problem is not really that small actions and big settlements count equally but that the tally reported by the SEC gives an inadequate measure of the commission’s success.
George Curtis, former deputy director of enforcement for the SEC said revocations should be pulled out of the stats to give a more accurate view of the SEC’s work for the year.
“It’s the tyranny of numbers,” said Curtis, now a partner at Gibson Dunn & Crutcher LLP. “The most important matrix is what is the focus, and what is the effect on investors.”
But the statistics — with very little breakdown — are often cited by the commission leadership to show its enforcement muscle. The yearly Performance and Accountability Report only lists the total number of actions and gives summaries of key cases. There’s no mention that one-sixth of the cases are against delinquent, sometimes non-existent companies.
An annual budget justification gives details on the pacing of investigations and includes a new category to tally cases that pose an enhanced risk for investors and markets.
The commission is required to file the yearly budget justification to Congress, but an SEC spokesperson said that the commission is not required to report numbers. The statistics have historically been included and must be counted consistently so comparisons can be made between years, the spokesperson said.
Instead, the commission said it focuses on the amount of disgorgement and penalties as a measure of success.
Online, the commission does break down the types of actions that make up the statistics (including revocations), but no context is provided to indicate how the delinquency cases weigh in terms of importance, compared to issues like insider trading and corporate corruption.
For his part, Cadigan said he didn’t see an effort to pad numbers in his time in the Boston office but said there tends to be a “real flurry” each September as enforcers try to finish cases to be counted for the year.
Cadigan notes that revocations, while seemingly trivial, can be an important tool to protect investors from fraud. Determining if a company is still functioning can be difficult, and a revocation puts the burden on the company to come forward if they want to file with the commission.
“A company that consistently fails to make the necessary filings may be susceptible to other violations,” Cadigan said.
Aside from the issue of revocations pumping up numbers, he said the actions show an effort by the SEC to clean up the market for investors.
If past years are any indication, the commission is indeed cleaning up, with delinquent filings accounting for nearly a sixth of all enforcement actions since 2008. As for 2012, the commission’s yearly report is expected in November.