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His findings began making the rounds in 1995, sparked a flurry of interest among finance and accounting scholars, and were published in The Journal of Finance in 1997.
The government obtained a conviction against Bruce Karatz, former Chief Executive Officer of KB Home, in its criminal option backdating case. The acquittals came on all charges based on option backdating claims. Criminal securities fraud charges brought by DOJ were intended by Congress to be differentiated from civil SEC charges through the added element of “willfulness.” With the increasing criminalization of the securities laws, however, the distinction between willfulness in criminal cases and scienter in civil fraud actions has all but disappeared.
Forelle learned of the prestigious award when it was announced on Monday, April 16.
He said he and his fellow reporters “were totally elated, and a bit dazed.” He said, “it was very gratifying,” and that the impact of the series “is why we do what we do.” He also said he was eager for the excitement to quiet down so he could get back to writing.
The verdict, however, raises more questions than it resolves. The indictment stems from option backdating issues at KB Home. Karatz used hindsight to select stock option grant dates from at least 1999 through 2005. Stated differently, little divides criminal securities fraud cases which can result in years of imprisonment from civil fraud actions where the consequences are an injunction and other remedial relief along with civil penalties.
At the same time, the jury returned not guilty verdicts on sixteen counts which include mail and wire fraud, securities fraud and filing false proxy statements. In contrast, the government prevailed in actions against James Treacy, former president of Monster Worldwide Inc., as discussed here, and former Brocade Communications Systems Inc. The mixed results in these cases, tinged by prosecutorial overreaching and misconduct, reflect in part the blurred line between civil and criminal securities fraud.
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The scandal has its roots in a 1992 SEC decree that companies list in their annual proxy statements the exact dates that they gave stock options to top executives.
The dates had been disclosed before, but only in mailed-in filings that no one ever looked at.
To identify companies that were backdating options, Forelle and the other reporters worked with academic experts to develop their own statistical-modeling system using custom-built probability algorithms designed to assess the odds that an executive’s well-timed exercise of options resulted merely from chance.
They found the odds were astronomical—300 billion to one, in one case.
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