Under Armour revealed in a regulatory filing Monday that its accounting practices are the subject of a pending enforcement action by the Securities and Exchange Commission (SEC).
The Baltimore-based athletic wear manufacturer and two of its executives received Wells Notices from the regulator, which indicate SEC staff have made a preliminary determination suggesting enforcement action against an entity or individual. A Wells Notice is not a formal charge, nor does it represent a final determination. The executives facing potential discipline are Kevin A. Plank, Under Armour’s executive chairman & brand chief, and David E. Bergman, the chief financial officer.
“The Company and the Executives maintain that their actions were appropriate and intend to pursue the Wells Notice process, which will include the opportunity to respond to the SEC Staff’s position, and also expect to engage in a dialogue with the SEC Staff to work toward a resolution of this matter,” Under Armour stated.
Under Armour previously disclosed it is being investigated by the SEC and the Department of Justice for alleged accounting irregularities. The company has been accused of using “pull forward sales in order to meet sales objectives” in 2015 and 2016.
The practice of “pull forward sales” is used to make revenues look better than they are by shifting sales that should have been booked in one quarter into another quarter.
Marc Leaf, a former senior legal and policy adviser to an SEC commissioner who is now a partner with the New York firm Faegre Drinker Biddle & Reath, said the Wells Notice marks the end of the SEC’s investigation. The company now has a chance to explain why the enforcement action should not move forward through a Wells submission, he said.
“In some cases, a compelling Wells submission may convince the staff not to recommend an enforcement action to the Commission. But even if the staff goes ahead with a recommendation, only the Commission itself has the authority to commence an enforcement action, and the Wells process gives the potential defendant an opportunity to take its own arguments directly to the commissioners,” he said.
“As a result, a significant number of investigations that result in the delivery of a Wells notice do not actually result in enforcement action by the Commission,” he said.
The company has denied its practices violated any securities laws, saying in its 8K filing that “SEC Staff has not alleged any revenue recognition or other violations of generally accepted accounting principles relating to that or any other period.”
Under Armour shares have fallen nearly 50 percent from the start of the year through July 24, according to MarketWatch. Its stock value fell 4 percent at the start of Monday’s trading but then rose above its Friday value during trading.
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