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The AAO Weblog covers accounting issues and current events as they relate the practice of investment analysis.

 
 
Jul 20

Written by: Jack Ciesielski
7/20/2005 6:34 AM 

Cease and desist! Again!

Yesterday's posting mentioned the cease-and-desist order given to Comerica. Today's cease-and-desist: Foamex International, a much smaller fish in the sea. (Found in the depths of micro-capdom, in fact.) The firm manufactures - you guessed it - foam used in the manufacture of seating. One note of historical interest: for years it was headed by one Marshall Cogan, a former partner of Sandy Weill and Arthur Levitt in the days when they headed their own Wall Street firm: Cogan, Berlind, Weill & Levitt.

On July 11, the SEC slapped Foamex with a cease-and-desist order due to sloppy internal controls. This is not the case of some overarching Sarbanes-Oxley witch hunt, as you may have been conditioned to expect by now. No, this goes back to bad behavior existing before the Sarbanes-Oxley Act was even dreamed of.

What happened? Foamex violated the reporting, record-keeping and internal financial control provisions of federal securities laws. The SEC accepted Foamex's settlement offer, wherein they consented to the Commission's findings without admitting or denying them.

What did the SEC find? From at least 1999 through 2003, Foamex's auditors (mostly Deloitte) advised the firm of its significant internal control deficiencies, which could prevent it from presenting reliable financial statements. Deficiencies were found by the auditors in the areas of:

- information technology systems;

- inventory procedures, processes and systems; and

- preparation of quarterly financial reports.

Evidence that its systems weren't up to snuff: between 1999 and 2003, Foamex restated many of its interim financial reports because of material errors resulting, to some degree, from its its internal control issues. One example mentioned: Foamex had to restate financials for the first three quarters of 2003 due to an inventory overstatement.

Foamex's new management has attacked the problems, but the continuous warnings from the auditors showed that the company took its time in getting the problems under control. As part of the settlement, Foamex must "cease and desist" from its past behavior - and it also must adopt any "rehab" procedures specified by an internal control special consultant that it must hire.

At $1.3 billion in 2004 revenues and $646 million in total assets at year end 2004, Foamex falls into the category of "small issuer affected by Sarbanes-Oxley costs." It also illustrates why small issuers ought to be spending more on the kinds of controls addressed by Section 404. It would be ironic if the firms with the weakest internal controls are the ones that get the most relief from any revisions of Section 404.


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Pension & Other Benefit Plans: A Look Ahead


    Investors in firms with defined benefit pension plans always face the risk of suddenly being pushed farther back in line when it comes to being served their returns. Variability in plan assets and variability in benefit plan obligations are the reason: poor asset returns coupled with sinking interest rates always spell tough times for defined benefit plan funding. In that regard, this year’s asset returns combined with the Fed’s “Operation Twist” add up to “Operation Agony” for defined benefit pension plans. If trends continue along their current path, firms that may have anticipated moving to more realistic pension accounting - like Honeywell, AT&T and Verizon already have done - might forego that decision. It could be just too painful. 

    Pensions aren’t the only kind of benefit plan affected by Operation Twist. Other postemployment benefit (OPEB) plans share much the same accounting model as pensions, including the calculation of a projected benefit obligation that similarly incorporates a discount rate - one that will also be affected by Operation Twist. The net OPEB obligations were slightly less than pension obligations at the end of 2010, but also promise to grow in 2011. Investors perceive them as less threatening than pension obligations because they don’t require funding. Strangely, there are a number of firms that are recognizing income from these benefit plans - without ever creating a dime of cash for investors.

A recent edition of The Analyst’s Accounting Observer dissects these issues, and is available only to paid subscribers. A condensed version is available for free upon request. To receive it, send an e-mail to Brenda Rappold at brappold@accountingobserver.com, with “PENSIONS” in the subject line.

For information about subscribing to The Analyst’s Accounting Observer, click here.