June 4, 2010

The SEC Clawbacks Compensation from Former Diebold CEO – But No Fraud Alleged (Again)

On Wednesday, the SEC announced it had charged Diebold and three former finance officers for engaging in a fraudulent accounting scheme to inflate the company’s earnings. The SEC separately settled an enforcement action (here’s the litigation release – and here’s the complaint) against Diebold’s former CEO Walden O’Dell, obtaining reimbursement of certain financial benefits that he received while Diebold was committing the accounting fraud. The SEC used the clawback provision under Section 304 of Sarbanes-Oxley to get the former CEO to agree to reimburse the company $470,016 in cash bonuses, 30,000 shares of Diebold stock and stock options for 85,000 shares of Diebold stock.

Notably, the SEC didn’t allege that the former CEO engaged in the fraud (or any other violation of the securities laws) – something the SEC did last year in an action against the former CEO of CSK Auto Corp. (ie. Maynard Jenkins), who pushed back in a motion to dismiss last September as I noted in this blog. Jenkins’ motion has not yet been ruled upon (oral arguments were heard on April 30th; here’s the transcript from that hearing posted in’s “Clawback Policies” Practice Area) – but a ruling is expected soon…

Smaller Company Proxy Disclosures: The Latest Developments

We have posted the transcript from the recent webcast: “Smaller Company Proxy Disclosures: The Latest Developments.”

More on “Picking Kentucky Derby Winners Based on the Economy”

A few weeks ago, I noted how Mark Coller successfully picks his Derby winners based on current events. Another member took the ball and ran with it as we head into the Belmont leg of the Triple Crown. This member has made up some horse names to fit the times:

– Banker Bailout – this horse is so last year
– Public Malaise – this one has a shot, the horse is so well-aligned with the American psyche, I don’t see how he can be overlooked
– Shop and Spend – with a name like this filly, it looks unbeatable
– Rational Investment- not a chance in a million
– Retire Rich – see Rational Investment
– Trusted Advisor – are you serious?
– Conservative Banker – might have had a chance during Glass-Steagall
– Greedy Banker – ding, ding, ding this one has to be a lock, the surest shot in the history of the sport, cash in your 401k because this horse is the only way to retire rich and don’t forget to include Churn and Burn for the exacta

I don’t know why, but this video that features a lip-syncing of Carol Channing and Liza Minnelli spliced together on a Larry King episode cracks me up (here is the original video).

– Broc Romanek