Securities Enforcement & Regulatory Compliance

Issuer Disclosure, Accounting Issues & Financial Reporting

Defense in SEC issuer disclosure and accounting fraud investigations and financial reporting enforcement actions.

Overview

Accounting fraud and financial reporting violations rank among the most complex SEC enforcement matters. These cases require attorneys who can work alongside forensic accountants, understand GAAP and PCAOB standards, and translate complex accounting issues into a legal defense.

Michael Garcia's background (a J.D. from the University of Miami, a B.B.A. in accounting, and passage of the CPA exam with the second highest score in Georgia) makes him unusually well suited to lead accounting fraud defenses. His accounting knowledge enables him to work as a genuine equal partner to forensic accountants rather than simply receiving their outputs.

Our Approach

Accounting fraud defense begins with rigorous independent accounting analysis. We engage forensic accountants to reconstruct the accounting at issue, evaluate whether alternative treatments were defensible, and assess the intent evidence the government will rely on. Many accounting fraud cases turn on whether the defendant acted with intent to deceive, which depends heavily on the state of accounting standards and the quality of the company's audit process.

Representative Experience

Securities & SEC Enforcement

  • SEC subpoena and PCAOB examination for an accounting firm

    Defended a public accounting firm in an SEC subpoena response and a PCAOB examination concerning its audit workpapers.

  • Technology company executive securities fraud defense

    Represents the former chief executive and chief financial officer of a technology company in an SEC enforcement action alleging $30 million in securities fraud based on material misrepresentations and omissions.

  • SEC administrative action over alleged revenue misstatements

    Represents a company and its chief executive in an SEC administrative action alleging the company made false statements about its revenue to investors, as the SEC evaluates a potential federal enforcement action.

  • Fund accountant SEC books-and-records investigation

    Represents a senior accountant at an investment-fund manager in a formal SEC books-and-records and accounting investigation.

  • $300 million accounting-fraud trial for the SEC*

    As co-trial counsel for the Securities and Exchange Commission, Mr. Soto litigated a $300 million accounting-fraud enforcement action; after the SEC obtained partial summary judgment, the defendants settled for more than $50 million in disgorgement and penalties.

  • SEC and DOJ accounting-restatement investigation

    Represents a Latin America-based employee of a U.S. public company in a parallel SEC and DOJ accounting-restatement investigation involving restatements exceeding $100 million, on referral from an Am Law 20 law firm.

*Handled before joining Fridman Fels & Soto.

Frequently Asked Questions

What are the most common SEC accounting fraud enforcement theories?

The most common theories include: improper revenue recognition (recording revenue before earned, on contingent transactions, or with side agreements); improper capitalization of expenses; channel stuffing; undisclosed related-party transactions; and misleading MD&A disclosures. The SEC typically focuses on both the company and the executives responsible for the financial statements.

Our outside auditor has told us they are considering withdrawing their audit opinion. What are our legal obligations?

An auditor's decision to withdraw a previously issued audit opinion, or to refuse to complete an audit, is one of the most serious escalation events a public company can face. It triggers a cascade of legal obligations. First, if the auditor's concerns relate to information that came to light after the financial statements were issued, SEC disclosure rules may require prompt public disclosure under a Form 8-K Item 4.02. Second, the audit committee must investigate the basis for the auditor's concerns independently of management, given that the concerns may relate to management conduct. Third, if the auditor has communicated their concerns to the PCAOB, the SEC may already be aware of the situation. Fourth, any resulting restatement has its own disclosure timeline and securities law implications. The most important steps: engage audit committee counsel immediately and independently of management; do not attempt to negotiate with the auditor without counsel present; and assess the company's public disclosure obligations on the fastest possible timeline.

Team

Facing a government investigation?

Time matters. Contact us before the first interview request.

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