Exclusive: Justice Department probing Chinese accounting

WASHINGTON Fri Sep 30, 2011 12:07pm EDT

A Chinese flag flies outside the New York Stock Exchange, November 20, 2009. REUTERS/Brendan McDermid

A Chinese flag flies outside the New York Stock Exchange, November 20, 2009.

Credit: Reuters/Brendan McDermid

WASHINGTON (Reuters) - The Justice Department is investigating accounting irregularities at Chinese companies listed on U.S. stock exchanges, said an official with the Securities and Exchange Commission, suggesting criminal charges may be brought in addition to civil proceedings.

"There are parts of the Justice Department that are actively engaged in this area," Robert Khuzami, director of enforcement at the SEC, said in an interview conducted on Tuesday and published on Thursday.

A number of federal prosecutors around the United States were taking part in the investigation, he told Reuters, but declined to name them.

Involvement of U.S. attorneys general in various locations adds investigative firepower to the SEC and the Federal Bureau of Investigation, which are also probing the accounting methods of certain U.S.-listed Chinese companies.

"I think that you will see greater (Department of Justice) involvement as time goes on," Khuzami said when asked if criminal charges would be filed in the investigation.

A former federal prosecutor, he declined to elaborate on which Chinese companies or auditors were being scrutinized by the Justice Department.

An SEC review of accounting problems at foreign-based stock issuers sharpened its focus earlier this year when dozens of China-based companies began disclosing auditor resignations or book-keeping irregularities.

For example, Deloitte Touche Tohmatsu CPA Ltd in May resigned as auditor of Chinese software company Longtop Financial Technologies Ltd, saying it had found falsified financial records and bank balance confirmations.

TOUGH ROAD AHEAD

Accounting experts and lawyers said the Justice Department's involvement showed how determined U.S. authorities are to tackle the problems, but added the lack of an extradition treaty with China would make it tough to secure criminal convictions.

"I can't see that China is going to turn anyone over for prosecution, so what this may end up doing is highlighting the difficulty of enforcing the U.S. securities laws with respect to U.S.-listed Chinese companies," said Paul Gillis, visiting professor of accounting at Peking University's Guanghua School of Management.

A Hong Kong-based lawyer, who has advised a number of Chinese companies involved in U.S. investigations, added that American criminal prosecutors tend to have difficulty obtaining evidence from their Chinese counterparts.

"The Department of Justice will face as many hurdles as all the other U.S. authorities. I don't think they are in any better position than the SEC when it comes to gathering evidence and taking action," he said.

The lawyer declined to be named as he is not authorized to speak to media.

Shares of some Chinese companies listed in the United States fell on Thursday after Khuzami's statements became public.

Among them, Focus Media dived 18 percent, Sohu.com Inc closed 4.7 percent lower, Baidu Inc fell 9.2 percent, China Sky One Medical Inc declined 3.8 percent and Sina Corp ended down 9.7 percent.

The SEC has struggled to gain access to documents it needs in the investigation because strict Chinese laws have made auditors reluctant to turn them over.

The FBI has an embedded agent in an SEC working group on Chinese companies that enter the stock market through so-called reverse mergers with U.S. shell companies.

Officials from the SEC and the Public Company Accounting Oversight Board (PCAOB) are due to meet with their Chinese counterparts in Washington, D.C. in October for a second round of talks on joint inspections of auditing firms in China.

"Not having proper accounting and reliable audit review for publicly traded companies with operations in China is just not acceptable. We have to find a path to resolution of this issue," Khuzami said.

"It is ... a big issue for us."

'NOT A ONE-TRICK PONY'

Earlier in September, the SEC sought a federal court order to force the Shanghai arm of Deloitte to turn over its work papers regarding Longtop Financial.

The results of the Deloitte subpoena enforcement action will be closely watched by other auditing companies, Khuzami said.

The federal government is also pursuing other options to ensure better accounting practices at U.S.-listed companies based in China, he said.

"Obviously, the results here will inform the conduct of others that are similarly situated. In that sense, it's going to be instructive," Khuzami said.

"At the same time, we're not a one-trick pony; There are other efforts to reach resolution of these issues. We continue to work closely with our regulatory counterparts in China and in other countries to find a path to resolution."

In a recent interview with Reuters, Assistant Attorney General Lanny Breuer, head of the Justice Department's criminal division, underscored the government's commitment to fighting accounting fraud of any kind.

He declined, however, to comment on specific cases that could be brought against Chinese firms listed in the United States.

The Justice Department declined comment for this story, saying it does not confirm or deny investigations.

In any criminal case, the question would be whether the company lied to the auditor, or whether the auditor acted recklessly or knowingly in not detecting the alleged fraud.

Merely not providing records under these circumstances -- as in the Deloitte case -- would not likely rise to the level of criminal violation, Khuzami said.

The PCAOB, the agency that oversees auditors of public companies, has inspection authority over auditing firms, while the SEC has enforcement authority over those companies.

Together, the two agencies have greater leverage over auditing firms than do criminal authorities, Khuzami said.

(Reporting by Andrea Shalal-Esa and Sarah N. Lynch, additional reporting by Rachel Armstrong in SINGAPORE; Editing by John Wallace, Tim Dobbyn and Vinu Pilakkot)

FILED UNDER: