Judge Enters Final Judgment Against Former CFO of Waste Management, Inc. Following Jury Verdict in SEC's Favor
James Koenig Ordered to Pay More Than $4 Million for Committing 60 Securities Law Violations
FOR IMMEDIATE RELEASE
2008-2
Washington, D.C., Jan. 3, 2008 - The Securities and Exchange Commission announced today that the U.S. District Court for the Northern District of Illinois has entered final judgment against James E. Koenig, the former CFO of Waste Management, Inc., after a jury found that he committed 60 securities laws violations in a five-year period.
The final judgment follows an 11-week jury trial in 2006 that resulted in a verdict in the SEC's favor against Koenig on all charges. The jury found Koenig liable for securities fraud, falsifying company books and records, lying to auditors, and aiding and abetting the company's violations.
"The jury verdict and final judgment leave no doubt that corporate executives are obligated to report accurate and honest financial results to the public," said Linda Thomsen, Director of the SEC's Division of Enforcement. "This case demonstrates that those who choose the dishonest route and undermine the integrity of our financial reporting system will be held accountable and the consequences will be severe."
Lou Mejia, Chief Litigation Counsel of the SEC's Division of Enforcement, said, "The entry of final judgment against James Koenig represents the culmination of years of hard-fought litigation. This case demonstrates the Commission's unwavering commitment to litigate to judgment even the most complex and difficult cases."
The final judgment, entered on Dec. 21, 2007, followed a two-day bench trial on remedies before U.S. District Court Judge Wayne R. Andersen. The final judgment permanently bars Koenig from acting as an officer or director of a public company, enjoins him from future violations of the antifraud and other provisions of the federal securities laws, and requires him to pay more than $4 million in disgorgement, prejudgment interest, and civil penalties.
The Commission alleged in its complaint that, beginning in 1992 and continuing into 1997, Koenig and others engaged in a systematic scheme to falsify and misrepresent Waste Management's financial results with profits being overstated by $1.7 billion. According to the complaint, the scheme was accomplished through false and misleading disclosures and a variety of non-GAAP accounting practices designed to defer current period expenses whenever possible. For example, the company manipulated its calculation of depreciation expense by repeatedly extending the useful lives and overstating the salvage value of its trucks and containers, thus reducing periodic depreciation expenses. The company also failed to write off impaired assets carried on its balance sheet, improperly capitalized interest and other current period expenses, understated its income tax expenses, under-accrued reserves, misapplied acquisition accounting principles, and improperly reversed reserves into income. All of these practices boosted current period earnings by reducing current period expenses. The fraud resulted in a restatement in February 1998, which at the time was the largest restatement in history.
On Dec. 3, 2007, the Court issued a memorandum opinion and order that set forth the findings that formed the basis for the final judgment (See SEC v. Koenig, 2007 WL 4277439 — N.D. Ill. Dec. 3, 2007). The judgment permanently bars Koenig from acting as an officer or director of a public company and enjoins him from violating, or aiding and abetting violations of, Sections 10(b) and 13(a) of the Securities Exchange Act of 1934, Rules 10b-5, 12b-20, 13a-1, and 13a-13 promulgated thereunder, and Section 17(a) of the Securities Act of 1933. The judgment additionally enjoins Koenig from aiding and abetting violations of Section 13(b)(2)(A) of Exchange Act, and from violating Exchange Act Rules 13b2-1 and 13b2-2. The judgment also requires Koenig to pay more than $4 million, comprised of $831,500 in disgorgement for Koenig's ill-gotten earnings-based performance bonuses, $1,246,517 in prejudgment interest, and a $2,078,017 civil penalty.
Previously, the Commission reached settlements with the company's outside public accountants, Arthur Andersen, and four of its former partners (Litigation Release No. 17039, June 19, 2001). Settlements also were reached in litigation with the founder and four other top officers of Waste Management (Litigation Release No. 19351, Aug. 29, 2005, and Litigation Release No. 18913, Sept. 30, 2004).
# # #
For more information, contact:
Luis R. Mejia (202) 551-4481
Chief Litigation Counsel
SEC Division of Enforcement
Scott W. Friestad (202) 551-4962
Associate Director
SEC Division of Enforcement
John D. Worland, Jr. (202) 551-4438
Supervisory Assistant Chief Litigation Counsel
SEC Division of Enforcement
Robert W. Pommer III (202) 551-4479
Assistant Chief Litigation Counsel
SEC Division of Enforcement
Additional materials: Litigation Release No. 20420
http://www.sec.gov/news/press/2008/2008-2.htm
