The sordid history of stock option backdating

From: Blog

Stock option backdating is not illegal. Improper identification and disclosure of grants, however, can violate accounting rules, SEC rules, and IRS rules.

Why is stock option backdating a tax issue? When a company backdates an incentive stock option (ISO) award, it assigns a “grant date” that is earlier than the actual grant date. The option is backdated to give it a lower exercise price, thereby making the option immediately valuable. That renders the incentive purpose of the option moot and violates IRS rules. Properly reported, an “in-the-money” option should be treated as a non- qualified option (NQO) and reported as wages with full federal state, local and payroll tax liabilities accounted for. The company’s financial statements should recognize the cost of the grant as compensation expense.

The fifth and latest edition of the classic textbook, Taxes and Business Strategy, A Planning Approach, includes a compact primer on the tax issues surrounding the 2005-2007 stock option backdating controversy.

Merle Erickson, a professor of accounting at Chicago Booth, joins Myron Scholes, Professor of Finance Emeritus at Stanford University, Nobel Prize winner, Chicago PhD, and former professor of finance at Booth from 1974 to 1983, and four more distinguished authors in a book that provide business professionals of all kinds with a general framework for thinking about taxes at the corporate and individual level.

Erik Lie of the University of Iowa gets the credit for identifying, in a 2005 research paper, a systemic pattern by companies to assign a grant date that coincides with the lowest share price that month, thereby manipulating the option exercise price to immediately maximize the value of the option grant. Lie suggested that as many as 2000 companies may have backdated stock options. His paper prompted an investigation by the SEC, Department of Justice, IRS, and the audit regulator the Public Company Accounting Oversight Board (PCAOB).

Erickson and the authors explain that, per SFAS 123, an accounting standard, “in-the-money” stock options should have been disclosed, in the financial statement footnotes, as compensation expense. According to research firm Audit Analytics, the stock option backdating investigations resulted in 153 restatements of previously issued financial statements by companies during 2006 and 2007 because companies failed to properly disclose this compensation expense. The stock market reacted negatively to these restatements. This reaction provides, according to a study in 2009 by Gennaro Bernile and Gregg Jarrell, an estimate of the size of agency costs—unanticipated management opportunism arising from poorly governed companies.

Audit Analytics also says only 13 cases were filed against auditors for giving bad advice and only four auditor settlements exceeded one million dollars. Booth Professor Emeritus Roman Weil, and his co-author Jennifer Milliron, argue in a chapter of the Handbook of Litigation Services that the financial illiteracy of executives, lawyers, and auditors with regard to stock option accounting and disclosure rules during the period leading up to Lie’s discovery, while regrettable, is understandable. “The courts should not expect anyone to have followed ‘rules’ that the accounting profession failed to clarify.”

Weil and Milliron scoured the accounting guidance and literature on stock option accounting and auditing and found that for “as-of” grants—those granted with a date prior to the actual grant date—the accounting literature failed to clearly define the technical terms “date of grant” and “measurement date” until 2006. They defend senior executives from “charges of known or reckless behavior with respect to accounting issues” because executives, especially in the technology industry where the practice was prevalent, generally lacked focus on Generally Accepted Accounting Principles (GAAP) during the years when the practice was common. The ambiguity of the accounting rules didn't help.

But should we let auditors, in particular, off the hook so easily? Every Big Four audit firm made millions in additional consulting fees as forensic accounting investigators hired by law firms to investigate stock option backdating issues. In a recent blog post, venture capitalist Ben Horowitz says everyone knew auditors advised on and blessed the stock option backdating approaches that eventually resulted in civil and sometimes criminal penalties.

Some law firms, like McDermott Will & Emery, warned audit firms as early as in 2006 that claims against them were coming. “Often it is the auditing firms that provide advice concerning issuance of stock options and related tax ramifications. Moreover, auditors review and opine on the financial statements of public companies quarterly and annually.” McDermott advised auditors to steer clear of involvement in internal investigations of the backdating issues if the auditor played any part in designing, approving, or implementing the plans in question.

The Sarbanes-Oxley Act of 2002 changed the reporting requirements for stock option grants. Corporate insiders now have to report grants and exercises in two days rather than ten. If options are backdated by more than two days, it will appear as if the grants are being reported late. It’s now impossible to materially juice the value of the option grant through backdating without inviting suspicion. New backdating of grant dates, and exercise dates, has almost disappeared now that the window of opportunity has narrowed.
—Francine McKenna 
Cat:Policy, Business,Sub:Accounting,


Customer disservice

From: Blog

How to close the gap between expectation and experience

In the classic movie The Godfather, Don Corleone (the character immortalized by Marlon Brando) tells Bonasera (Salvatore Corsitto), “some day, and that day may never come, I will call upon you to do a service for me.”

In the service industry, however, firms are constantly called upon to address customer-related issues. The service industry is also at the core of the US economy and that of several other countries in the world. Yet there is remarkable heterogeneity in the nature of service delivery across companies. Here is a description of two of my recent service encounters – both within the last month – that illustrate my point about heterogeneity.

About a month ago, I was frantic. I was leaving on an overseas trip the next day to teach and the wire connecting my MacBook Pro to its power adapter snapped. All I was left with was a power brick with a few strands of copper wire protruding dangerously from it. My attempts to tether the wire back to the adapter were of no avail notwithstanding the several feet of duct tape I tried to wrap around them.

It was time for plan B. I called the Apple store located in downtown Chicago, the nearest store, and the one place I considered a safe bet for getting a new adapter. Did they have adapters? Of course they did.

At the store, I made a beeline for the display holding a number of adapters, retrieved one whose wattage appeared to match mine, and headed for the checkout registers.

En route, I was stopped by a sales associate who inquired whether I’d found what I was looking for. Confident as I was with my choice, I decided to make sure. Within a few questions she determined that I had picked up an incorrect adapter, walked with me to the display and picked out the right one for my computer.
Glad that I had dodged the bullet, I thanked her and was about to head back to the checkout counters when I casually asked her whether the adapter was covered by my 3 year Apple warranty. A quick phone call home got the serial number she needed to find out. The sales associate punched in the number and concluded that I would need to consult an Apple “genius” who typically only saw customers with an appointment.

Lucky for me, a genius was free and was able to help me immediately. With one look at my adapter, he realized I had been wrapping the wire incorrectly and demonstrated how it should be done. Next, he looked at my warranty and said that they would replace the adapter for free – not the retail adapter off the shelf, but a special replacement adapter.

The whole experience took under 20 minutes. I walked in expecting to buy an adapter (for what I subsequently realized cost over $80) and walked out with a free replacement and a demonstration on how to use it in the future.

Was my problem solved? Yes. Did I have a positive experience? Yes. Did it make me want to buy Apple products in the future? Yes. (See this article on Gizmodo for a description of the types of training Apple employees undergo for customer interactions.)

Two weeks later, I found myself in a sunny southern European country with another technological predicament. The place I was staying did not have internet access, so I walked into a Vodafone store to get wireless access for my computer. For €15 I was able to purchase a SIM card that gave me €8 of wireless Internet access.

The purchase process itself was far from enjoyable. First, the salesperson had great difficulty explaining the various options available and their prices (I was with a native language speaker and the transaction was entirely in the native tongue of the salesperson). Next, the credit card machine was not functional so I had to get cash from a nearby ATM. Total time for the transaction – about 45 minutes.

Sadly, that was not the end of the encounter. Upon going home and trying to use the device, I discovered that the internet connection, once established, did not last for more than 2 – 3 minutes . Fortunately, there was a customer service number I could call, so call I did. Several calls and failed remote attempts to fix the problem later, I was asked to take the product back to the store to be replaced. Total time taken by the calls – about 1 hour.

Back to the Vodafone store for round two. The customer service representative explained to me that I had a few options to address the problem. Since the product was still under warranty, it could be sent away for service – wait time 10 days – longer than the duration of my stay in the country.

Alternatively, I could get a new SIM card for another €15 and throw the old one away. Needless to say I was unhappy with these options. What about, “No problem sir, we will replace the product and you can be on your way.”

After another 30 minutes of argument, she had a third alternative – that I could try my luck at a company-owned Vodafone store several miles away that had a technician on site. By now, the academic in me had taken over and I was curious about how this service encounter would end. So in the sweltering heat I made the trip – travel time 30 minutes (plus the cost of transportation). I was greeted by a long line of customers waiting to be helped. Another 30 minutes elapsed before I could make my way to the service counter. The representative explained that since it was a “technical” problem, I had to speak to the lone technician in the store.

And I was in luck – the technician had only the current customer he was dealing with before I would be take care of! I let my hopes get the better of me and settled down in a chair to wait for the technician.

Another 30 minutes later it was clear to me that my luck had run out. The technician was dealing with a customer who had recently suffered the loss of her entire photo collection from her smartphone and was determined to retrieve them come hell or high water. She simply would not leave. Neither the technician nor the service representative bothered to update me on the wait, options etc.

After hanging around for another 15 minutes, I threw my hands up in despair and left. Was my problem solved? No. Did I have a positive experience? No. Did it make me want to ever deal with Vodafone in the future? Definitely not!

So what can companies do to improve their service delivery? To do this, companies need to understand the main drivers of dissatisfaction with the delivered service. Typically, this arises because a customer’s experience with the service does not match his or her expectations. Understanding this gap is a first step to ensuring a positive service encounter.

Several frameworks have been suggested to measure and “fill” the gap. One such framework is the well-known approach suggested by Parasuraman, Zeithaml and Berry in the mid-80s (see Zeithaml, Parasuraman & Berry, Delivering Quality Service; Balancing Customer Perceptions and Expectations, Free Press, 1990). The authors propose decomposing the gap between customer experience and expectations into “sub-gaps” and then trying to eliminate these sub-gaps. These sub-gaps are between:
  • Customer expectations and management’s perception of these expectations
  • Management perception and how it specifies the service quality the company provides
  • How service quality is specified and how it is actually delivered
  • Service delivery and external communication to potential customers that generates expectations
  • Expected service and experienced service
Addressing these gaps requires a combination of better market research, superior service design, excellence in training, clear positioning of the service value proposition in the minds of consumers, and feedback and fine-tuning of the delivery process.

All this is not easy but it is critical for the long-term success of service organizations. The bartender (played by Cheech Marin) notes in the movie Desperado, “Bad beer, bad service. Don’t people know not to come in here?” Companies like Vodafone (in the above encounter) should make sure this does not happen to them.

—Pradeep Chintagunta, the Joseph T. and Bernice S. Lewis Distinguished Service Professor of Finance

This article originally appeared on the Kilts Center Faculty Blog.