SEC ANNOUNCES SETTLEMENT OF ACCOUNTING FRAUD CHARGES AGAINST FORMER CSK AUTO CORPORATION MANAGEMENT

FROM:  SEC 
April 18, 2012
On April 18, 2012, the Securities and Exchange Commission announced that final judgments have been entered in the United States District Court in Phoenix, Arizona against three former officers and managers of Phoenix-based CSK Auto Corporation (CSK). The Commission’s complaint, filed in 2009, alleged that from 2002 to 2004, Don W. Watson, CSK’s former chief financial officer, senior vice president, and treasurer, Edward W. O’Brien, CSK’s former controller, and Gary M. Opper, CSK’s former director of credit and receivables, engaged in a scheme to materially overstate CSK’s income by aggressively recognizing vendor allowances and failing to write off vendor allowance receivables when management knew the receivables were uncollectible. Because of the scheme, CSK filed false financial statements overstating pre-tax income for fiscal year 2002 by 48.6%, or $11.2 million, fiscal year 2003 by at least $37.4 million, thereby reporting pre-tax income instead of a pre-tax loss, and fiscal year 2004 by at least 67.2%, or $21.4 million. At the time of the fraud, CSK was one of the nation’s largest auto parts retailers with over 1000 stores located throughout the western United States. In July 2008, CSK became a wholly owned subsidiary of O’Reilly Automotive, Inc.

Pursuant to his final judgment, Watson consented to a permanent injunction, a permanent officer and director bar, and agreed to reimburse O’Reilly Automotive, Inc. (“O’Reilly”), which acquired CSK, $646,404.17 in bonuses and stock profits pursuant to Section 304 of the Sarbanes-Oxley Act of 2002, (“SOX”), 15 U.S.C. § 7243. In a related criminal action brought by the U.S. Department of Justice, on September 21, 2011, Watson was sentenced to two years’ imprisonment, to be followed by three years’ supervised release, and ordered to pay restitution in the amount of $1,016.13, based on his guilty plea to a to a one-count superseding felony information, charging him with conspiracy to commit securities fraud and mail fraud, in violation of 18 U.S.C. § 371.

Pursuant to his final judgment, O’Brien consented, without admitting or denying the allegations in the Commission’s complaint, to a permanent injunction, a permanent officer and director bar, and agreed to pay $33,386 in disgorgement and prejudgment interest. Pursuant to his final judgment, Opper consented, without admitting or denying the allegations in the Commission’s complaint, to full injunctive relief and agreed to pay $10,906 in disgorgement and prejudgment interest. In the related DOJ criminal action, both O’Brien and Opper pled guilty to obstruction of justice in connection with the Commission’s investigation by providing false information to CSK’s counsel, knowing that the results of CSK’s internal investigation would be disclosed to the Commission staff, in violation of 18 U.S.C. § 1505. On November 10, 2011, both O’Brien and Opper were sentenced to three years’ probation, and ordered to pay a $10,000 and $2,500 fine, respectively.

SEC FILES CIVIL INJUNCTIVE ACTION AGAINST THORNBURG MANAGEMENT SENIOR MANAGEMENT

The following excerpt is from the SEC website:
March 13, 2012
SEC Files Civil Injunctive Action Against Senior Management of Thornburg Mortgage, Inc. for Alleged Fraudulent Overstatement of Thornburg’s Income
On March 13, 2012, the Securities and Exchange Commission filed securities fraud charges in the United States District Court for the District of New Mexico against Larry Goldstone, the former chief executive officer and president, Clarence Simmons, the former chief financial officer and senior executive vice-president, and Jane Starrett, the former chief accounting officer of Thornburg Mortgage, Inc. (“Thornburg”), currently TMST, Inc., for allegedly materially misrepresenting the financial condition and liquidity of Thornburg, formerly the country’s second largest independent mortgage company. Goldstone, Simmons, and Starrett reside in Santa Fe, New Mexico.

The Complaint alleges that Thornburg, through Goldstone, Simmons, and Starrett, fraudulently overstated its quarterly income by more than $420 million in its 2007 annual report filed with the Commission. As a result, the Complaint alleges that Thornburg fraudulently reported a profit rather than a loss for the quarter. According to the Complaint, in the two weeks leading to the filing of its annual report, Thornburg received more than $300 million in margin calls from its lenders that severely drained its liquidity. The Complaint further alleges that, unable to meet its margin calls on a timely basis, Thornburg violated three of its lending agreements, and received a reservation of rights letter from one lender in which the lender reserved its right to declare Thornburg in default at any time. Accordingly, the Complaint alleges that in the days before Thornburg filed its annual report, the collateral it used for its lending agreements, adjustable rate mortgage (“ARM”) securities, was subject to being seized and sold by its lenders. According to the Complaint, given the circumstances of Thornburg’s liquidity crisis, circumstances that were misrepresented to, and concealed from, the company’s auditor, Goldstone, Simmons, and Starrett each knew, or was reckless in not knowing, that Thornburg did not have the intent or ability to hold its ARM securities until maturity or until their value recovered in the market. The Complaint concludes that the individual defendants also knew, or were reckless in not knowing, that this meant Thornburg was required to recognize on its income statement approximately $428 million of losses associated with the company’s ARM securities, and that the proper accounting treatment for these securities would have resulted in Thornburg reporting a loss rather than a profit for the quarter.

The Complaint claims that, based on this conduct, the defendants violated or aided and abetted the violation of, or in the case of Goldstone and Simmons are liable as control persons under Section 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”) for Thornburg’s violation of, Section 17(a) of the Securities Act of 1933, and Sections 10(b), 13(a), 13(b)(2)(A), 13(b)(2)(B), and 13(b)(5) of the Exchange Act and Rules 10b-5, 12b-20, 13a-1, 13b2-1, and 13b2-2 thereunder. The Complaint also claims that Goldstone and Simmons violated Rule 13a-14 of the Exchange Act. As part of this action, the Commission seeks against each of the defendants an injunction against future violations of the provisions set forth above, officer and director bars, and third tier civil money penalties.