BDO International Dodges A Bullet, But Threat Still Remains…
Less than an hour after Thomas finished his closing arguments in a trial in which he sought to hold BDO International liable for a 2007 verdict he won against its U.S. affiliate, the six-person state court jury in Miami returned a defense verdict. The jury’s finding that BDO International bore no responsibility for the $170 million compensatory damages verdict against BDO Seidman followed Tuesday’s directed verdict for BDO International, which cleared the international of liability for $351 million in punitive damages against BDO Seidman.
“The jury got the case at 3:01 [P.M.] and they returned a verdict at approximately two minutes of four,” said BDO International lawyer Mark Raymond of Broad and Cassel. “The evidence is just overwhelming that there is no control by BDO International of its member firms–I am stunned that Thomas still bangs that drum. We all postulate theories, but when you lose in such a dramatic fashion, it’s time to get a new case. Steve Thomas is a terrific lawyer, but he had the facts wrong here.”(I will have an updated post, with new clips, an interview with Steven Thomas and additonal analysis after the weekend.)
Earlier Post:
Judge John Schlesinger ruled from the bench in favor of BDO International yesterday. His ruling addressed only the punitive damages portion of the case brought by BES Bankest (Banco Espirito Santo) against the audit firm.
“The ruling leaves the BDO International jury to decide whether it should share liability with BDO Seidman for $170 million in compensatory damages.The punitive award was part of a $522 million verdict two years ago against Chicago-based BDO Seidman for its audits of a fraudulent Miami factoring business co-owned by the bank. The award is the largest ever against a U.S. accounting firm.
“I don’t believe the facts are in the neighborhood of adequacy to support punitive damages against BDO International,” the judge said in court Monday, according to a transcript. “They’re entitled to a judgment as a matter of law on the directed verdict.”
Closing arguments are expected to begin this afternoon.
Espirito Santo contended that BDO Seidman was an agent of BDO International when it failed to catch a $170 million fraud while auditing E.S. Bankest from 1998 to 2002. The bank, part owner of Bankest, was the victim of the biggest bank fraud in Miami history.
The bank contends BDO International had a responsibility to control BDO Seidman when the fraud took place. BDO International disputes the bank’s contentions and denies it had supervisory control over BDO Seidman.
Instead, BDO International maintains it provides administrative services to a network of independent member accounting and consulting firms that are separate legal entities.
The new jury has not been told about the dollar award by the 2007 jury. It will be asked whether BDO Seidman is an agent of BDO International.
The $522 million award against BDO Seidman is on appeal to the 3rd District Court of Appeal.
BDO International was dropped as a defendant in the 2007 trial, but the 3rd DCA said send it back, saying a jury must answer the agency question.”
I admit, I am very surprised.
Just listen to these two clips from Courtroom View Network of the June 3rd testimony of the International Secretary Paul Van Elten. You should also hear why I though it was pretty clear that BDO International did not do what they told the public they said they do. They were not managing and controlling one of their largest and most important member firms and have tried to wiggle out of that liability ever since the Banco Espirito Santo case came up.
I am preparing the clips from Courtroom View Network of yesterday’s proceedings and will insert them as soon as available.
Steven Thomas’ statement says it all:
“This is one of the most egregious business cases to come before the courts in our time. The jury will decide whether BDO Seidman is BDO International’s agent and therefore liable for the $170 million judgment against BDO Seidman. We believe the jury should have been given the opportunity to hold BDO International responsible for the punitive damages already awarded, based on BDO International’s now admitted fraud on the public. ”
The jury will still decide whether BDO International must share in the payment of the compensatory damages part of the case, $170 million. And the fact still remains: BDO Seidman is currently responsible for both the $170 million and the the $352 million dollar punitive damages unless reversed on appeal. They have already said that, as a US firm, they do not have that kind of money, that an award of that size plus the compensatory damages would break the US firm.
The key for the judge seemed to be that punitive damages were based on a finding of “gross negligence” and the plaintiff had not proved that BDO International, the umbrella firm of the global network, had been negligent in its supervision of BDO Seidman to that extent. That does not mean that jury’s finding of responsibility for the compensatory damages will not prove that BDO International was negligent at least in its supervision of the BES Bankest (Banco Espirito Santo) audit by BDO Seidman and that an umbrella firm has that connection to and responsibility for its member firms.
BDO Seidman has more recent bad publicity about its leadership to contend with – the same leadership in place during the the Banco Espirito Santo audits that were found to be grossly negligent:
Bloomberg June 10, 2009: BDO Seidman LLP’s ex-chief executive officer and a former tax-shelter promoter at the defunct law firm Jenkens & Gilchrist are among seven defendants set to appear in federal court on June 23 to answer charges that they marketed phony tax shelters.
Denis Field, 51, the former CEO at accounting firm BDO Seidman, and Paul Daugerdas, 58, a former Jenkens attorney in Chicago, were charged by a federal grand jury in New York with conspiracy and tax evasion for allegedly marketing fraudulent tax shelters from 1994 through 2004.
The indictment also charged Robert Greisman, 48, a former partner at BDO… On June 3, former BDO Seidman Vice Chairman Charles Bee pleaded guilty to federal charges that he helped clients evade more than $200 million in taxes through illegal shelters.
And in March another BDO Seidman Vice Chair pleaded guilty to similar charges.
So BDO International and its network of member firms are left, for now, with a big dilemma borne of their desire to shield the International umbrella firm and its member firms from responsibility for the operations and management of a particular member firm that goofed up:
What to do about BDO Seidman and the US firm, especially if the judgement is upheld and the US firm can’t pay?
Member firms, in general, want to be shielded from the responsibility for each other when, for example, there’s an egregious case of “gross negligence” by one of them that threatens the franchise and brand.
I’ve heard from many, both in and out of BDO Seidman, that they are going on, “business as usual.” College recruits to BDO Seidman are wondering when they’ll start and for how long they’ll have a job. But they are still accepting offers from the US firm, albeit perhaps reconsidering if they have another offer. Partners are not leaving in droves, splitting off or setting up new firms or aligning with others.
And clients are still choosing BDO as their auditor, if you can believe it. According to data from Compliance Week on auditor changes, so far in 2009, 23 firms have dumped BDO or a member from as their auditor, most often choosing another next tier or regional firm, but 14 companies have selected a BDO firm as their new auditor, most often coming from a Big 4. Are they making the choice simply on the promise of lower fees? I think that’s irresponsible. See the data here.
I’m at the Maryland Association of CPAs’ Business Expo – speaking, moderating a panel and sitting on a panel – and BDO Seidman is here, as a sponsor. The banner on the BDO Seidman booth in says, “BDO Seidman: Local strength. Global capabilities.”
Indeed.
Even if Steven Thomas is unsuccessful in pulling BDO International, and therefore, the members firms into the total circle of liability for the BES Bankest judgement, he will have at least made inroads on the template for his next case, KPMG International re: New Century. (And he did win the original judgement against BDO Seidman, which is still huge.)
KPMG International will be both a harder and easier case. Harder because KPMG is much more sophisticated than BDO and actually, usually, do what they say to the public they do. And they have documents to “prove” it. Easier because when they do what they purport to do in annual reports and websites and marketing materials, they may not do it well or may let politics/favoritism trump consistency and fair application of those policies to every partner. And there will be emails, and documents, and PCAOB inspection reports, both public and private versions post-2002, to prove it. It will be a much different ball game.
The next tier firms – BDO, Grant Thornton, and RSM – readily admit to regulators they have neither the infrastructure nor capacity to follow through on the quality standards that a “global network” connotes. For proof, listen to this webcast of the third session from a February 2008 PCAOB Standing Advisory Committee Meeting where quality standards for global networks were discussed. You will hear the contrast between EY and Deloitte vs GT and Moore Stephens. It’s dramatic and the regulators have allowed it.
Interestingly enough, word on the street all over the world, is that PwC, in particular, is scared witless of these suits given the inevitable suit against PwC International that will be filed in the Satyam fraud. In fact, one of their inside counsel subscribed to the Courtroom View Network coverage and has been listening every day. Sources have told me that more than one of the PwC firms of both the “network” and SEI (shared economic interest) variety, and there are both, are seriously evaluating options including dissolving and splitting off to avoid the potential liability of a catastrophic Satyam verdict.
Will Steven Thomas get the PwC International case? Maybe Stuart Grant? Or another attorney who will learn from both of their efforts? Each case is different and, yet, they are all adding kindling, laying the foundation for the bonfire of the Big 4 vanities, even before they’re tried.
Thanks for keeping us up to date on the moving target. Does the end of the international firm networks mean the end of publc accounting firms period
Francine,
I am a first time commenter on your site, but a reader for the past few months. It is great to have a source of information about the latest news in the public accounting / auditing profession. Thanks for your work!
It is indisputable that the global networks want the public to believe that all over the world they are one and the same. However, I dispute the notion that other member firms of the global network should be held liable for the negligence of another member firm. Unless another member firm provided some kind of support and it can be proved that they indeed had knowledge, and/or performed some, of the negligent work, how can another firm be held liable? Although the firms purport publicly that they have “Local Strength, Global Capabilities”, it is clear in the fine print that they are indeed a network of individually owned member or alliance firms and I would hope that someone contracting services from these firms would perform their due diligence and understand the relationship to the global firm. I know I explain the structure to all of my clients so they have a clear understanding how the firm operates on a global level.
I will be interested to see how the case ultimately pans out and how it affects the cases coming in the near-future against the giants.
Thanks again for a great site!
AB
@Kevin Brown
I think the end of the network model as a result of the success of one of these lawsuits means the end of the firms operating globally as we know it. More importantly, the success of one of these lawsuits against one of the Big 4 – suits outstanding against Deloitte and KPMG and coming against PwC – means a potential failure of one of these firms. That is what will prompt a fundamental rethink of the nature, value, and means of delivery of the right services for investors.
@APB Thanks for your comment and thanks for reading. What is the value of a global network if they are not all there for each other, good times and bad?
Francine
Francine:
I will jump for joy if PWC International is held for damages in the Satyam case. I am displeased with the jduge’s ruling above. It should be appealed.
@4
So what did PwC do to you that you have such feelings about them?
FM@3,
If the Big 4 networks do break up, what replaces them? If I were running a multinational company, I wouldn’t relish the thought of contracting with completely different auditing firms all over the world, then having to deal with the issue of them relying on each other’s work (the independence issues alone for being able to do that are frightening). On the other hand, local licensing requirements will likely mean that the various country partnerships will need to be composed of local folks – nor do I see anyone having the ability to move teams of people en masse to foreign jurisdictions (i.e., could you get an entire US audit team to live in Mexico to work on the McDonald’s audit? Would you want to, given that they wouldn’t know Mexican GAAP (think Bulletin B-10 on inflation accounting) or business practices?)
So it doesn’t seem feasible to have completely separate firms all over the world, nor does it seem feasible to have “subsidiaries” in the traditional corporate sense.
So I have to assume if you broke up the networks, over time you would end up with… a network of associated firms, which over time would adopt a global oversight structure, and would slowly tend to impose global quality standards… as the Big 4, to a greater or lesser extent, are currently doing.
The current structure certainly isn’t perfect, but if it gets broken, I strongly suspect we will wind up with the same structure again, only starting over from scratch.
Good objective reporting of the facts. So happy that you chose not to trash talk these firms, but simply to report and provide other folks opinions. As we see in the tax cases, until individual partners and those who have overall firm responsibility are held directly accountable, there will continue to be the belief that the reward exceeds the risk. Audit failures should attach first to the individual partners responsible, which would include Executive Committee members, and potentially Professional Practice Group partners (to the extent that they failed to report known problems with these audits and/or member firms). The remaining liability should be limited to the rest of the practice based on a multiple of the fees paid for all years that the frauds should have been identified across all member firms in cases of international reach.
All of the responsible partners should be at peak risk to loose their entire net worth, including pensions, their license and be barred from public practice in any form. The remaining firm should not be punished with extinction. However, a significant but capped monetary penalty provides both a punishment to those who may have been complicit but limits the damage to those who put their faith and trust in those responsible to manage the firm. Given the harshness of the penalty to the management and oversight groups, I believe that culture would shift to being focused on auditing rather than becoming millionaires. At the very least we get bad actors out of the business and hopefully put a sense of fear into those who have bad actor tendency. Meanwhile good honest auditors get the opportunity, belief, and power to do the right thing and finally gain back the throne.
Keep reporting like this and I will gladly make a financial contribution to the effort.
@ Keith
Do you not feel slightly silly bandying about generalisations like “people who work there aren’t any more talented than any middle market firm. The only fference is the egos are much bigger for no reason, I think mid tier firms actually have more talent since we are required to get our hands dirty more rather than relying on internal audit workpapers.”
“They should have made me partner” made me laugh though.
To be serious for a moment though, I think what post 7 says is absolutely correct. The current ‘global network’ we have may be the worst system in the world to deal with Global clients, but its better than all the others, to paraphrase Churchill.
Ah well, to be honest,even though BDO shafted me hard, letting them getting off the hook made me happy since it would mean my former coworkers will not be fighting for my place at a local CPA firm coming fall. Some of the insiders told me BDO is likely forced to open their books, get hammered hard, then fall into a smaller entity to be aquired by another firm, as Florida’s law prevent BDO from being sunk completely under, and I been told liability insurance would eat the rest.
Keep in touch,
Mike
Agree with #7
@ keith
just because you have a 4.0 doesn’t mean you’re automatically hired. All that means is you’ll most likely get an interview, but once you’re in the interview no one brings up your grades. Its up to you then to sell yourself. I’ve had numerous Big 4 recruiters tell me they’d rather have a well rounded 3.3 student than a nerdy 4.0 who just studies all day.
Besides if you chose the mid tier firm to ‘stand out’ and ‘not be just another number’, then why would you want Crowe to ‘become the next big 4 firm’. You want them to become the same type of firm that you hate on?
Keith,
I have a few issues with your posts. They are as follows:
1. Although you arent being serious, saying you could just “start” a big4 firm if another falls is a pretty stupid comment. I think their would be some compeitition to break over that 20 Billion revenue mark.
2. Trying to compare talents at a mid-tier firm vs a Big 4 is just a waste of time. All big firms have amazingly talented and brilliant people, and people that I wouldnt want to work in my mail room. Ther have big egos because they are the “best” firms. They are the biggest and baddest firms out there (CASH makes the world go ’round, and they have the most)
3. Saying the firm you work at or a firm you have worked out “would never let an audit failure happen” is naive and childish. An “audit failure” can happen at any auditing firm. It takes one person or team to bring down a firm (see AA, RIP)
4. If you are as smart and good as you imply, you could more than a number at a Big4. You chose chose not to run with the big dogs. There is nothing wrong with that, but saying you “should have been made partner” at one firm, touting your accounting intellect but saying, i went to a smaller firm so I could stand out. I dont get it. If you are good, you will stand out at any accounting firm. If you arent good, you wont.
Francine,
I’m not an accountant, nor do I play one on TV, but your coverage provides important information in a form even a layman like me can understand. If one of the Big Four were to fail, a plethora of hardworking, good people would have their livelihood disrupted for the sins of a relative few, but I guess that’s the way of things.
When one of these suits blows up, as it inevitably will, your ability to tell a complex story simply and with panache will make you a very desirable commodity.
Dude
Nice Prediction FM. Slam dunk hu?
Sorry FM about the slam dunk. Stick to your day job.
@20, 21 and @28 on the other BDO post (All posting within minutes from same IP address…Hmmmm)
Yep, quite a surprise. My day job is writing about these issues. And you forget. Mr. Thomas still won the original record judgment against BDO Seidman. KPMG is next. Wanna bet he makes some adjustments and gives them a run for their money? All $1 billion dollars worth? I will be writing a follow-up post. When these issues go to the courts they often get diluted down to the lowest common denominator. Doesn’t mean they don’t have an impact on the profession. BDO International is small potatoes compared to KPMG, Deloitte and PwC. From a Big 4 perspective, that’s where the case will be made and that’s where the real money is. Or didn’t you read this second post?
Francine
From the postings in CPA Daily, appears that from BDO International’s standpoint, they didn’t just dodge a bullet, the whole gun was filled with blanks. While the result may be financially beneficial for BDO International, it should be clear from the basis for the jury’s decision that the international firms’ PR about an internationally seamless and uniform set of standards and service delivery controlled by the international organization to ensure global service quality to the clients is just that – PR B******T. Clients retaining Big 4 or an international network for the supposed high quality, globally consistent service delivery should be aware of the audit and financial reporting reliability risk they are really assuming by retaining the firms without verifying the actual skills and capabilities of the separate firm offices that will participate in the audit.
In my experience delivering multi-national SOX compliance engagements for clients of all the Big 4 firms, the staff capabilities and quality of service I observed the international business units of the clients receiving varied significantly. The critical factor determining the level of capabilities seemed to be the commitment of the practice lead partner to living up to the firm’s marketing hype. In the office where the practice lead insisted on high standards, the service capability existed. In the offices where it seemed that the partner was just interested in the revenue referral from the office controlling the client relationship and seemed to believe that the geographic distance would insulate them from being held to account for not providing high capability services, the staff I encountered on the projects were little more than minimally trained statutory auditors, definitely not capable of performing SOX audits.
So, clients beware. You may be buying the PR image, but you may not be getting the level of service that your shareholders and the regulators are expecting.
Richard @ 24 —
“The critical factor determining the level of capabilities seemed to be the commitment of the practice lead partner to living up to the firm’s marketing hype.”
Yes, indeed. But let me rephrase for you, if you’ll indulge me.
The critical factor determining the level of capabilities and overall engagement quality seemed to be the ability of the overall engagement partner to obtain the right local resources and manage them well from thousands of miles away in a different time zone.
It’s much harder to manage an international engagement, especially when one factors in the revenue games played with international billings. That said, I worked with some excellent folks when I went international, but I suspect the local firms assigned the cream of the team to our engagements, since there was a lot of process and methodology transfer involved.
— Tenacious T.
I know someone will tell me I did not read something — and I will admit I didn’t… I have not found the information on this that I need to be completely literate in this post… but I have a thought that I would like to know if I am on target about…
1) as @24 said — there is high variability in skills and quality of work internationally. But isn’t that also true across US offices and practices. If you use people in a different US office or bring in practice specialists… there will be a variety of levels of quality you get in the resources assigned to the job.
2) isn’t the engagement partner and thus the engagement partners office and thus the engagement partner’s firm solely responsible for the engagement work. If a sister/brother firm does poor work then wouldn’t that engagement partner’s firm then have to sue the international firm to recover for their role in the job?
It seems to me that the firm of the engagement partner is legally responsible to the client (solely responsible). Then if there is involvement from other international firms, that local firm has to sue their sibling firm(s) to recover. That would be what makes sense — but it really will destroy the relationship of the umbrella’ed firms.
I can’t say I’m surprised FM, I thought it would end this way. You can check my previous posts. I haven’t read this case, so I don’t know how applicable it will be to future suits. It could leave some doors open to attack global networks. I think it will ultimately come down to control. What we will need to ask is, what level of direction is too much?
The US firm may still go down and the partners will lose their equity stake. 🙁 I wouldn’t be surprised if they get favorable partnership offers at other mid-tier firms like GT or McGladrey. Heck, I’m sure both would like the additional equity and the additional clients.
Audit failures will happen. It’s just a fact. No firm will get it right 100% of the time. You ultimately get what you pay for. I can’t see how all the new obscene utilization/low rate structure will help firms prepare better audits. Do you have any idea how bad auditor fatigue was in the last busy season in a number of offices and practices? I watched it happen with a certain level of perverse interest. You have 20 somethings, many who are not CPAs, working harder than they have ever worked in a busy season. Rates were too low and other staff members had to go. Managers reviewed more work than they did in the past. Partners of course were out on sales calls to drum up business. The traditional leverage model was taken to an extreme. It’s a recipe for failure. I’m not a lawyer, but it sounds grossly negligent to me.
The solution is higher rates, lower utilization, and more hours per audit. That unfortunately increases the cost of capital and no one is willing to do that in this economy. We’ll see what happens when it hits the fan in a few years.
21 – You can’t get it right 100% of the time, but the public has a right to expect reasonable assurance, which the firms have clearly not been able to provide. Really, what is going on when you misaudit a billion dollars, as seen with PWC’s Satyam, KPMG’s New Century, etc?The public has no idea what it is getting that it pays for when buying shares in a publicly traded company, whether it’s a 3-person firm like Madoff’s, a BDO, or Big 4 that conducts the audit.
@ Chicago Accountant
“…Do you have any idea how bad auditor fatigue was in the last busy season in a number of offices and practices? I watched it happen with a certain level of perverse interest. You have 20 somethings, many who are not CPAs, working harder than they have ever worked in a busy season…”
What’s really perverse is watching these fresh-from-university twenty-somethings slowly drowning. A beloved friend was quite literally consumed by the insane hours, utilization demands and the constant fear of being the one let go. He “survived” busy season and layoffs thus far…but at what cost?
@23 – I don’t know about audit — in my practice I find the real perverse part that the 20-somethings think they are capable of doing advanced work and managing engagements and clients. Sounds like in the audit world — the 20-somethings are told they are capable and seem to know they are not. I wonder.
“as @24 said — there is high variability in skills and quality of work internationally. But isn’t that also true across US offices and practices. If you use people in a different US office or bring in practice specialists… there will be a variety of levels of quality you get in the resources assigned to the job.”
What’s surprised me the most as I’ve travelled across the country doing audits for a Big Four Firm is that the practices in the smaller offices often seem to be of better quality than the larger ones. For example, workpapers I’ve seen out of Cincinnatti and Detroit were much better than comparable ones from Chicago and NYC. Any ideas why?
I tend to think in more regional cities – the top accounting talent might go to a Big Four Firm as other financial positions aren’t as readily accessible whereas in financial meccas (e.g. NYC) – the lure for the best grads is elsewhere (e.g. private equity, hedge funds, ibanking) and so the accountants who land gigs at the Big Four in NYC etc aren’t really the best but rather the middle tier students, coupled with international kids.
Am I missing somthing, I still haven’t seen any original clips from the BDO International trial. I would have like to see the Judge’s instructions and the verdict. Are they somewhere else, original not the ones from CVN Courtroom?
@Sam
The CoutroomView clips are the original and only source of the live courtroom coverage that I know of. I have included some clips in each post on the subject. They charge a subscription fee for this coverage. I have access to the whole trial and plan to include some more clips when I publish my interview with Steven Thomas BES attorney. I will take your request into consideration. The verdict and the judges decisions mid trial were my choices too and I will make that request to CourtroomView.
Francine