(Bloomberg) Chinese affiliates of the four largest accounting firms were barred for six months from leading audits for U.S.-listed companies after failing to comply with Securities and Exchange Commission orders for documents at the heart of a series of accounting fraud probes.
The decision by U.S. Administrative Law Judge Cameron Elliot, if finalized, would force more than 200 Chinese companies traded in the U.S. to find new auditors, while multinationals with significant operations in China, like General Motors Co., would also have to bring in new firms to check those units, said Jason Flemmons, a former SEC accountant who is now a senior managing director at FTI Consulting Inc.
“This is a big deal,” said Lynn Turner, a former SEC chief accountant. “For those companies that have an audit report to be done, finding another auditor in China might be a bit difficult.”
The sanctioned firms said in an e-mailed statement that they will appeal the decision.
The SEC filed an action against the auditors in 2012 after struggling for years to obtain information for dozens of accounting fraud probes at China-based companies. After an agreement in May between the two countries allowed some information to be shared, the accounting firms argued, unsuccessfully, that the SEC was getting what it needed and that the case jeopardized the listings of hundreds of Chinese companies trading in the U.S.
The firms receiving the bans are Deloitte Touche Tohmatsu CPA Ltd., Ernst & Young Hua Ming LLP, KPMG Huazhen and PricewaterhouseCoopers Zhong Tian CPAs Ltd. BDO China Dahua Co., Ltd. -- now called Dahua CPA -- was only censured since it had already withdrawn from the U.S. market.
The auditors’ “actions involved the flouting of the commission’s regulatory authority, which may not be as egregious as, say, accounting fraud, but is still egregious enough that it weighs against leniency,” the judge said in the decision. The firms “acted willfully and with a lack of good faith.”
The audit firms that were barred called the judge’s decision “regrettable,” according to a joint e-mailed statement. “In the meantime the firms can and will continue to serve all their clients without interruption,” they said.
Deborah Meshulam, a lawyer for Dahua, which wasn’t barred, declined to comment.
The impact on the audit firms may extend far beyond the six-month time frame because many companies would be unwilling to bring in a new auditor for such a short period, according to Flemmons. The decision could push firms to make a “long-term switch” to new auditors, he said.
The accounting firms have 21 days to file a so-called petition for review with the SEC before the judge’s decision would become final and go into effect. If the five-member commission were to uphold the judge’s decision, the firms could then appeal to the U.S. Court of Appeals in Washington.
“This could be hung up easily for five years in the courts before it ever takes effect,” Turner said. “I wouldn’t be surprised to see the firms do that.”
The SEC enforcement division was “gratified” by the decision, chief litigation counsel Matthew Solomon said in an e-mailed statement. “These records are critical to our ability to investigate potential securities law violations and protect investors.”
The decision sends the “absolute wrong message” as global regulators work to harmonize standards for accounting, according to Jacob Frenkel, a former federal prosecutor and SEC lawyer, now at Shulman Rogers Gandal Pordy & Ecker PA in Potomac, Maryland.
“It’s consistent with the perception that the U.S. regulators are enforcement-first isolationists rather than global market advocates and participants,” Frenkel said.
The auditors are caught between U.S. law, which requires them to turn over all documents requested by regulators, and Chinese law, which prohibits transferring data to foreign parties that might contain state secrets.
While the May accord between the two countries opened the door for some cooperation, it didn’t allow for inspections, a key requirement for audit firms doing work for U.S.-listed companies.
“To the extent respondents found themselves between a rock and a hard place, it is because they wanted to be there,” Elliot said in the decision. “A good faith effort to obey the law means a good faith effort to obey all law, not just the law that one wishes to follow.”