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exists that such data were incorrect or inaccurate Income recognition abuses or improper capitalization of expenses are typical categories of abuses used by penny stock promoters to misstate the operating results and mislead investors In addition, the accountant should analyze key contracts, employment agreements, and other consulting arrangements A time-line analysis that re ects all key publicized events should be developed and used to determine if such events did occur From the time line it can be determined whether, in the same time frame, all acquisitions or dispositions of assets and other nancial transactions were accounted for properly (vi) Securities Act Violations Lawsuits in this area usually involve alleged violations of the federal acts, speci cally Sections 11 and 12(2) of the Securities Act of 1933 and Section 10(b) of the Securities and Exchange Act of 1934 These sections concern making false or misleading public statements about a company or omitting a material fact (either in a prospectus or in public statements, including nancial statements), resulting in an alleged overvaluing of the company s stock Typically, when the correct information becomes public, the value of the stock drops Plaintiffs claim that, but for the misleading statements, they would not have bought the stock or they would have bought at a lower price These lawsuits are often brought against Of cers, directors, investment bankers, lawyers, accountants, and others who may have been party to misstatements Accountants may be involved in the liability, causation, and damages portions of securities cases Involvement with liability issues is most common when an auditor has been accused of violating Section 10(b)5 by failing to perform a generally accepted auditing standards (GAAS) audit and/or by giving a clean opinion to non- generally accepted accounting principles (GAAP) nancial statements Cases involving public company audits dated after the effective date of PCAOB Auditing Standard No 1 References in Auditor s Reports to Standards of the Public Company Auditing Oversight Board will reference the standards of the PCAOB in lieu of GAAS The accountant will review the auditor s work papers and other relevant materials to reach a conclusion as to the adequacy of the audit of the nancial statements The causation and damages phases of securities cases are closely linked They consist of determining whether the information had any impact on the stock price and quantifying the losses suffered by the plaintiff investors as a result Typically, this involves determining what the stock price would have been if the proper information had been released at the proper time The methods for doing this are beyond the scope of this chapter; see de Silva et al for a treatment of this subject1 (vii) Bankruptcy and Bankruptcy Frauds Bankruptcy matters may require an accountant s services for many different tasks The role of the accountant and scope of services to be performed are in uenced by the size of the company and by whether the accountant is working for the trustee, debtor in possession, secured creditors, or the creditors committee(s) Accountants for the debtor in possession may be asked to prepare analyses supporting the solvency or insolvency of the debtor, which may affect creditors claims, recoveries, or security interests Such accountants also may be involved in preparing prospective nancial information led with the US Trustee s Of ce or used in negotiating plans of reorganization with the parties of interest Another important role may require making analyses to support a debtor s use of cash collateral and analyses showing that adequate protection is available to the secured creditor An accountant for the creditors committee, in addition to reviewing any analyses prepared for the debtor, will have additional responsibilities The accountant may initially be asked to determine the cause for the business failure and may need to determine quickly whether the debtor s operation may be further depleting the assets available for creditors The creditors accountants also may need to investigate the conduct of the debtor The scope and depth may vary signi cantly based on the relationship and con dence the creditors have with existing management At a minimum, a review
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Harinda de Silva, Nancy N Low, and Tara N Nells, Securities Act Violations: Estimation of Damages, in Litigation Services Handbook: The Role of the Accountant as Expert, ed Roman L Weil, Michael J Wagner, and Peter B Frank (John Wiley & Sons, New York, 1995)
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