Case 6-1

Auditors are not always found guilty of negligence, gross negligence, and fraud when lawsuits are filed against them. And they do not always settle lawsuits to avoid costly, protracted litigation. A good example is legal action taken against three accounting firms in In re Advanced Battery Technologies, Incorporated and Ruble Sanderson v. Bagell, Josephs, Levine & Co., LLC, Friedman LLP, and EFP Rothenberg, LLP. For purposes of this case, Advanced Battery is referred to as ABAT and the three accounting firms simply as the auditors.

On March 25, 2015, the Second Circuit and Eleventh Circuit Courts of Appeal affirmed dismissals of securities fraud claims filed against the auditors that audited Chinese reverse-merger companies because the plaintiffs did not adequately plead scienter under the heightened pleading standard imposed by the Private Securities Litigation Reform Act of 1995.1 Under the PSLRA, plaintiffs must state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind with respect to each act or omission of the defendant that is alleged to violate the securities laws.

The Second Circuits opinion in ABAT stated that to allege scienter on a recklessness theory against an independent audit firm under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, a plaintiff must allege facts showing that the audit firms auditing practices were so deficient as to amount to no audit at all or that the audit firm disregarded signs of fraud that were so obvious that the audit firm must have been aware of them.

The ABAT ruling is significant because it is the first federal appellate case to expressly reject scienter arguments based on the alleged discrepancy between a companys filings with the U.S. SEC and with Chinas State Administration of Industry and Commerce (SAIC), a regulatory agency to which Chinese companies must submit financial statements as part of an annual examination. The decision reflects a growing trend of courts rejecting securities fraud claims filed against independent audit firms in the context of Chinese reverse-merger companies.

In ABAT, the plaintiffs alleged that the auditors falsely represented that they performed their audits in accordance with professional standards and that ABATs financial statements were fairly presented. An amended complaint upon appeal of the lower court decision against ABAT alleged that the audit firms were reckless and committed an extreme departure from the reasonable standards of care by failing to identify several purported red flags, including: (1) conflicts between ABATs financial statements filed with Chinas SAIC and with the SEC; and (2) the unreasonably high profits that ABAT reported in its SEC filings, in contrast to the significant losses that it reported in its SAIC filings. The district court denied leave to amend, and the Second Circuit affirmed.2

The Second Circuit agreed with the district court that the proposed amended complaint, like the previous complaint, failed to adequately plead the audit firms scienter under the theory of recklessness and that amendment would be futile. The appellate court explained that the plaintiff was required to allege conduct that is highly unreasonable, representing an extreme departure from the standards of ordinary care, such that the conduct must, in fact, approximate an actual intent to aid in the fraud being perpetrated by the audited company as, for example, when a defendant conducts an audit so deficient as to amount to no audit at all, or disregards signs of fraud so obvious that the defendant must have been aware of them.

Much of the Second Circuits analysis focused on the plaintiffs argument that the audit firms acted recklessly by failing to inquire about or review ABATs financial filings with Chinas SAIC. In rejecting these arguments, the court noted that none of the standards on which [the lead plaintiff] reliesthe Generally Accepted Auditing Standards, Statements on Auditing Standards, or GAAP [generally accepted accounting principles]specifically requires an auditor to inquire about or review a companys foreign regulatory filings.

The court declined to adopt the general rule, urged by the plaintiff, that allegations of an audit firms failure to inquire about or review such foreign filings are adequate to plead recklessness under the PSLRA. Although the court noted that such a legal duty could arise under certain circumstances (which it did not explain), it concluded that those circumstances were not pled here. In addition, the Second Circuit held that ABATs report of high profit margins in its SEC filings triggered, at most, a duty to perform a more rigorous audit of those filings, not of the companys SAIC-China filings. The court declined to infer recklessness from the allegations that one of the audit firms had access to, and presumably relied on, the financial data underlying ABATs SAIC filings but failed to see that the data contradicted the companys SEC filings. Instead, the court found another inference more compellingthat ABAT maintained different sets of data for its Chinese and U.S. regulators and provided the audit firm with false data.

The ABAT opinion is significant because it illustrates the high burden plaintiffs face in pleading recklessness in Section 10(b) cases against independent audit firms. Notably, since under the PSLRA the plaintiffs filing suit must plead with particularity facts alleging that the audit firms work was so deficient as to amount to no audit at all, the historical legal standards for auditor liability seem to have turned in favor of the auditors. Also, the Second Circuits determination that allegations that an audit firm failed to review AIC filings is not sufficient to meet this high burden for pleading scienter is significant, as such allegations are frequently pled in matters involving audits of the financial statements of Chinese companies listed on U.S. securities exchanges.

Questions

3. Do you believe that auditors should be held legally liable when their filings to the SEC are [overly] optimistic while filings with Chinese regulatory agencies are [unduly] pessimistic? Explain using ethical reasoning to craft your answer.