VEREIT, a publicly traded real estate investment trust, will pay an $8 million penalty to resolve Securities and Exchange Commission fraud charges over intentionally overstating a key non-GAAP performance metric. The settlement also includes a cease-and-desist order.

VEREIT was formerly known as American Realty Capital Properties (ARCP). The SEC’s order finds that former senior company executives at ARCP falsely reported and manipulated the calculation of the company’s adjusted funds from operations (AFFO), a non-GAAP metric relied upon by management, investors, and analysts to assess ARCP’s financial performance. The scheme took place from at least May 2014 until the company’s initial disclosure of the misconduct on Oct. 29, 2014, according to the SEC.

On Oct. 29, 2014, ARCP announced its audit committee had concluded the previously issued financial reports for its full fiscal year 2013, first quarter 2014, and second quarter 2014 should no longer be relied upon. “The audit committee’s conclusion was based on the preliminary findings of an internal investigation that ARCP had overstated AFFO in its [first quarter 2014] financial reports and that this error was identified but intentionally not corrected, and other AFFO and financial statement errors were intentionally made resulting in an overstatement of AFFO in its [second quarter 14] financial reports,” the SEC’s order states.

The company also announced then that former CFO Brian Block and former Chief Accounting Officer Lisa McAlister had resigned at the request of the audit committee, and that “the investigation was ongoing and had been expanded to encompass fiscal year 2013 in light of the fact that [Block and McAlister] had key roles in the preparation of such filings.”

Without admitting or denying the findings, VEREIT consented to the SEC’s order, which cites violations of the anti-fraud provisions of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. Also violated were the reporting and books and records provisions of Sections 13(a) and 13(b)(2)(A) of the Exchange Act and Rules 12b-20, 13a-11, and 13a-13.

Block and McAlister previously settled SEC charges in connection with the fraud. They were also criminally charged by the U.S. Attorney’s Office for the Southern District of New York. Block was convicted following trial, and McAlister pleaded guilty in the criminal case.

 

Jaclyn Jaeger is an editor with Compliance Week and has written on a wide variety of topics, including ethics and compliance, risk management, legal, enforcement, technology, and more.

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