The Securities and Exchange Commission charged Brixmor Property Group Inc., a publicly-traded real estate investment trust, and four former senior executives with fraud in connection with a scheme to manipulate a key non-GAAP metric relied on by analysts and investors to evaluate the company’s financial performance.
Brixmor has agreed to settle the Commission’s charges and pay a $7 million penalty.
The SEC’s complaint against the individuals, which was filed in the United States District Court for the Southern District of New York, alleges that from the third quarter of 2013 to the third quarter of 2015, Brixmor CEO Michael Carroll, CFO Michael Pappagallo, CAO Steven Splain and Senior VP of Accounting Michael Mortimer improperly adjusted Brixmor’s same property net operating income (“SP NOI”) in order to report quarterly numbers that hit the Company’s publicly-issued growth targets. According to the complaint, certain of the defendants described their manipulation of the non-GAAP measure as “mak[ing] the sausage,” using tactics such as selectively recognizing income from a “cookie jar” account, incorporating certain income that the company had represented was excluded, and improperly lowering the prior year’s SP NOI to give the appearance of stronger growth in the current year.
The SEC’s complaint charges Carroll, Pappagallo, Splain, and Mortimer with violating or aiding and abetting violations of the antifraud and books and records provisions of the Securities Exchange Act of 1934, as well as with violating Rule 100(b) of Regulation G, which pertains to the reporting of non-GAAP performance measures. The complaint seeks permanent injunctions, disgorgement plus interest and penalties, and officer-and-director bars. Splain and Mortimer have agreed to the entry of partial judgments against them in which they consent to injunctive relief with other monetary relief and bars to be determined by the court in the future. These settlements are subject to court approval.
The SEC’s settled order as to Brixmor finds that the company violated the antifraud provision of the federal securities laws and Rule 100(b) of Regulation G, and filed false and misleading annual, quarterly, and current reports with the SEC. Without admitting or denying the allegations, the company agreed to pay a $7 million penalty and comply with certain undertakings, including retaining an independent consultant to review and assess controls relating to the calculation and presentation of non-GAAP measures including SP NOI.
In a parallel action, the U.S. Attorney’s Office for the Southern District of New York today announced criminal charges against Carroll, Pappagallo, Splain and Mortimer. Splain and Mortimer have pled guilty to those charges.
The SEC’s investigation was conducted by Tuongvy T. Le, Tejal D. Shah, Sheldon L. Pollock and Scott B. York. The litigation will be led by Nancy A. Brown, Ms. Shah, and Ms. Le. The case is being supervised by Lara Shalov Mehraban. The SEC appreciates the assistance of the U.S. Attorney’s Office for the Southern District of New York, the Federal Bureau of Investigation, the U.S. Postal Inspection Service, and the New York State Department of Financial Services.