PALO ALTO, Calif. Ask any World War II
history buff the significance of Aug. 14, and, of course, you'll get the answer that it's
the day in 1945 the Japanese formally surrendered unconditionally to the United States. And
you might not know that Aug. 14 also is Earvin "Magic" Johnson's birthday (in
1958) as well as the date in 1984 that IBM released MS-DOS, version 3.0, ultimately making
Bill Gates (not an IBM executive), the world's richest man.
I'd argue that each of those events -- and a whole lot more you can find at a nifty Web site -- is more significant
than this coming Aug. 14, which various market pundits would have you believe will be a
milestone for the world's markets.
Aug. 14 is the day by which the Securities and Exchange Commission is requiring the
senior executives of 947 companies with 2001 revenues of at least $1.2 billion to take an
oath certifying that their financial statements are correct. This order, by civil servants
who hopelessly failed to smoke out abuses by the likes of Enron and WorldCom, certainly is
causing a commotion. Folks think that it will force CEOs to take responsibility and
restore trust in corporate America.
Never mind that there's something more than a little un-American
about requiring someone already installed in their non-governmental job to take an oath.
(Imagine: 'While I cannot take the time to name all of the men in the executive suite who
have been named as numbers fudgers, I have here in my hand a list of 205 known members of
the Business Roundtable.') It doesn't promise to amount to much.
For example, Merrill Lynch strategist Rich Bernstein points out Aug. 14 isn't going
stop companies from highlighting pro forma earnings, which often exclude very real
operating costs (like, say, hiring a CEO or the writedown of bad investments). "Most
companies aren't fraudulent in their financial statements," says Bernstein. "The
issue is the spin on those financial statements to the public."
There are other shortcomings. Even with the deadline two weeks off, 16 CEOs already
have signed their name to attest that "to the best of my knowledge" the numbers
are correct (see table). But take a moment to peruse the actual statements, which the SEC
helpfully is posting at its Web site, and you'll see for yourself that it's all boilerplate.
Companies simply are aping what the SEC told them to say -- to the best of their
knowledge.
The whole thing smacks of a joke, which is how some lawyers seem to be approaching it.
Boris Feldman, a litigation attorney with Wilson Sonsini Goodrich & Roasati in Palo
Alto, Calif., posted an "FAQ for the Perplexed" at a Web site for his
clients.
Among his dead-serious questions a CEO might ask: "Am I better off if I know
nothing?" Feldman, who has spent years defending corporations whose executives stand
accused of misleading investors, offers this answer: "In my opinion, this is not a
prudent approach to the order, although it might be justified by the literal terms of the
certification." He goes on: "A cynic might call this the 'Sergeant
Schultz' approach (in other words, 'I know nothing').
In fact, let's call the edict what it is: Grandstanding. It's grandstanding by the SEC,
which surely already has at its disposal the means to punish executives who lie. It's also
grandstanding by the goody-goody companies that rush to comply. The overwhelming majority
will comply quietly on or just before Aug. 14. A few won't, and they'll be hounded by the
media and the SEC in inquiries that will take months and probably still won't result in
any indictments.
Speaking of no indictments, Enron is on the list of 947 companies because whatever its
current fortunes, its 2001 revenues exceeded $1.2 billion -- which is why the company
landed at No. 7 on the Fortune 500 this year.
Finding out who's honest about their accounting is a noble goal. But it won't really
help investors figure out how to value stocks or who's got good businesses. It will,
however, make for good headlines in the dog days of summer.
|