Fraud in non-GAAP: DOJ, SEC pursue parallel charges

A U.S. Attorney’s Office in New York says two former executives at Brixmor Property Group Inc. have pled guilty to charges of conspiracy to commit securities fraud and making false statements to the SEC and are cooperating with the investigation. Two more former executives are facing multiple counts of similar charges, along with additional charges related to false certifications.

The SEC has also brought a parallel civil action against the four, and the company has settled the charges and agreed to a $7 million penalty. The two former executives who pled guilty to criminal charges also agreed to partial judgments against them, which are subject to court approval. The SEC’s charges focus on violations of antifraud and books and records provisions as well as violation of rules for reporting non-GAAP performance measures.

The case surrounds the reporting of same-store net operating income, a figure that is not required under Generally Accepted Accounting Principles but which Brixmor voluntarily presented to investors as an added indicator of performance. SS-NOI compares income from a set group of properties in one period with the same period in a prior year, which the DOJ says is a key performance metric used by investors to assess investments in publicly traded REITs like Brixmor.

According to the DOJ and the SEC, from 2013 when the company went public through 2015, the four former executives used a series of tactics to manipulate the measure to show steady growth when the actual figure was far more volatile than the company reported. Now still facing criminal charges are Michael Carroll, former CEO, and Michael Pappagallo, former CFO. Those who settled are Steven Splain, former chief accounting officer, and Michael Mortimer, former vice president of accounting.

“Faced with announced guidance they could not achieve, Carroll, Pappagallo, Splain, and Mortimer engaged in a two-year campaign to engineer the numbers they needed—which they described as making the sausage,” the SEC says in its compliant.

The criminal indictment says Carroll and Pappagallo regularly boasted of consistent SS-NOI from quarter to quarter, and the reported figures routinely fell within the middle range of guidance. The actual SS-NOI, however, spiked and dropped a number of times from the third quarter of 2013 to the third quarter of 2015. The DOJ says the executives used three primary methods to manipulate the figure.

First, according to the allegations, the plan involved the use of “cookie jar” reserves, setting aside income in stronger quarters so it could be used to cover weaker quarters. The plan also involved manipulation of lease termination income to smooth over SS-NOI, and the removal of payments that had been included in prior periods to boost the figure in a current period.

The SEC has placed a heavy focus on non-GAAP abuses in recent years, although enforcement actions are not common. The SEC has called out a number of companies for presenting non-GAAP figures more prominently than GAAP figures, which is a violation of permitted uses of non-GAAP metrics, and it took action against home security firm ADT for that particular lapse.