Kreme Dougnuts: Empty Calories or Empty Profits?
Case Study of the Impact of
Sarbanes-Oxley Act ("SOX")
Kreme Doughnuts (KKD), a once high flying growth stock has been hampered as of
late with shareholder lawsuits. When sales growth and earnings began to drop significantly
in 2003, the company blamed its problems on the popularity of low-carbohydrate
diets like Atkins and South Beach at the time. But the SEC began probing Krispy
Kreme's accounting for franchise buybacks and is now facing shareholder lawsuits
for inflating profits. Senior management officials allegedly knew of the problems,
but continued to pad sales figures by doubling doughnut shipments to wholesale
customers at the end of fiscal quarters, according to lawsuits.
The suit alleges that between January 2003 and last May, when Krispy
Kreme issued a profit warning, "the company issued false and misleading statements,
including false financial results" and "repeatedly ratcheted upward
its public quarterly and fiscal year revenue and earning projections ... all in
the face of slowing sales and market saturation."
addition, the lawsuit claims,CEO Scott Livengood, former COO officer John W. Tate
and former CFO Randy S. Casstevens - "unloaded more than 475,000 shares of
Krispy Kreme stock for proceeds of $19.8 million", while fully aware sales
were declining since January 2003. The
charges, leveled by two unidentified "confidential witnesses" who are
former employees of the company, is included in a recent filing in the lawsuit.
to one witness cited, Krispy Kreme double-shipped wholesale customer orders at
the end of quarters on four separate occasions while the witness worked for the
by a former sales manager at a Krispy Kreme outlet in Ohio, said a regional manager
ordered that retail store customers be sent double orders on the last Friday and
Saturday of the 2004 fiscal year, explaining "that Krispy Kreme wanted to
boost the sales for the fiscal year in order to meet Wall Street projections."
The witness said the manager explained that the doughnuts would be returned for
credit the following week - once fiscal 2005 was under way.
witness "understood that it was commonplace at Krispy Kreme to channel stuff
in order to meet Wall Street expectations," according to the complaint.
could also argue that Krispy Kreme auditors Price WaterHouse-Coopers (PWC) should
have noticed a pattern of large shipments at the end of the year with corresponding
credits the following fiscal year during the course of their audit. Typical audit
procedures would be to confirm with KKD's customers their purchases. In addition
monthly variations analysis should have led someone to question the spike in doughnut
shipments at fiscal year end.
The SEC is investigating if Krispy Kreme used questionable
methods to inflate profit when it bought back its Michigan franchise for $32.1
million last year. PWC refused to sign off on quarterly results. It was only after
the firm retained the services of outside legal counsel to verify the methodology
that Krispy Kreme was allowed to put the matter behind them. The outcome of the
SEC investigation is still pending.
If PWC were not already under scrutiny
for failing to detect inflated sales, PWC may have considered signing off on the
accounting methodology based on immateriality. However, under SOX accountability
and reporting requirements, Price WaterHouse had a profession and legal obligation
to bring forth publicly, any irregularities immediately. When the smoke clears,
expect Krispy Kreme to look for a new auditor in an attempt to appease shareholders.
Chief executive officer Scott Livengood "announced
his retirement" at the age of 52 from Krispy Kreme Doughnuts Inc. (KKD) amid
allegations of padded sales figures. Livengood was replaced as CEO by Stephen
Cooper, a renowned industry turnaround specialist who most recently headed the
Enron Corp. bankruptcy reorganization.
According to the company, Livengood
will be paid $45,833 a month, the equivalent of his current base salary, for a
six-month consulting term. Livengood's departure also triggers an option to purchase
330,125 shares of Krispy Kreme stock; he now has vested options to purchase more
than 1.3 million shares.
In its latest SEC filing, the company said net
income for the year could be reduced by as much as 7.6 percent.
SOX, senior management would still be liable for fraud for knowingly signing off
on the financial results. In addition, I expect other senior management officials,
particularly in Krispy Kreme's internal accounting division to depart in the coming
months as management review should have been in place to question all the credits
issued for the return of overshipments.
2005 Nelson Chin.
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