Litigation against accounting firms appears to have subsided for now, according to one legal expert, but is showing signs of reviving as the Securities and Exchange Commission turns its attention back to accounting and audit enforcement cases.
“The litigation environment toward the accounting profession right now is about the best I have seen it in more than 30 years of doing this,” said Michael Young, a partner at the law firm Willkie Farr & Gallagher who specializes in defending audit firms, during an auditing conference Thursday at Baruch College’s Zicklin School of Business in New York. “Litigation against the profession is down, and just as important, the ability of the profession to effectively tell its story, to effectively present its defenses, is better than at any other time while I have been practicing law. But the times are changing, and in fact they have already started to change.”
He pointed out that a primary driver behind much of the litigation in recent years has come from the financial crisis, but the profession acquitted itself well in convincing clients such as big banks to write down the value of their assets in accordance with the FAS 157 accounting standard for fair value measurement. “With some exceptions, the profession saw to it that those writedowns took place as they should have taken place,” said Young.
He noted that judges and juries seem to have more business savvy and are more sensitive to financial concerns now as well, so they are more likely to side with firms in the cases that are brought. Audit documentation has also improved, Young noted, and is written more often in plain English, making it more understandable and easier for a jury to grasp.
“But clouds are on the horizon,” Young warned. “The SEC is sending the message that it is back on the accounting beat.”
The SEC is turning its attention back to accounting and auditing cases after the financial crisis forced it to focus on insider trading cases, Ponzi schemes, and the like. The director of the SEC’s Division of Enforcement, Andrew Ceresney, has made it clear that the SEC is ready to focus again on accounting cases, as it did during the Enron and WorldCom era.
Scott Univer, principal and general counsel at the accounting firm WeiserMazars, said he has seen the SEC recently announcing two high-profile cases against BDO and this week against Grant Thornton, in which the SEC used emails and voice mails from auditors to build its cases (see SEC Penalizes Grant Thornton for Ignoring Red Flags in Audits). “The SEC is not only looking at emails, they’re listening to voice mails,” he said. “We’re in a different era of regulation now.”
He and Young warned that firms need to be careful what they are putting in their emails and saying in their voice mails. “Emails are now our Achilles’ heel, and the plaintiffs’ bar knows it,” said Young.