Named in the Commission's complaint are the following defendants.
- Jeffrey Weitzen, age 47, of Rancho Santa Fe, Calif. Weitzen was Gateway's chief executive officer and a member of its board of directors.
- John J. Todd, age 43, of Rancho Santa Fe, Calif. Todd was senior vice president and chief financial officer of Gateway.
- Robert D. Manza, age 42, of Plano, Tex. Manza was Gateway's controller during the relevant time and is a certified public accountant.
The SEC's complaint alleges that defendants misrepresented or failed to disclose (1) significant trends in Gateway's business; (2) that PC sales growth was declining; (3) that, by the end of the third quarter, only a small percentage of net income was associated with PC sales; and (4) that revenue and earnings included various one-time transactions. Through these actions, the defendants gave the false and misleading impression that Gateway, unlike many of its competitors, was outpacing an industry trend of decreasing sales of personal computers.
Stephen M. Cutler, SEC Director of Enforcement, said, "The Commission continues to be absolutely committed to investigating and bringing complex financial fraud actions like this one. A fraud achieved through numerous small accounting tricks, as here, is just as harmful to investors as any other. We will hold accountable individuals who produce deceptive financial results, no matter what means they use."
"This action illustrates the harm that can result when corporate executives measure success by meeting the short-term expectations of Wall Street analysts," said Randall R. Lee, Regional Director of the SEC's Pacific Regional Office. "The former Gateway executives the Commission charges today were preoccupied with meeting analysts' expectations, to the extent that they fraudulently reverse-engineered Gateway's financial results to do so. This action also demonstrates the Commission's resolve to prosecute those executives, including CEOs, who mislead investors about the underlying health and business prospects of their companies."
The Commission's complaint alleges that in approximately May 2000, when defendants realized that the company would not meet the expectations of the Wall Street analysts who followed Gateway's stock, they embarked on a fraudulent scheme to "close the gap" between analysts' expectations and the company's actual revenue and earnings.
According to the complaint, in the second quarter of 2000, the scheme included contacting individuals whose credit applications had previously been denied by the company, and offering them pre-approved financing to facilitate sales. The sales campaign to high-risk customers contributed more than 5% of Gateway's second quarter revenues.
Also according to the complaint, when Todd recognized that he could not close the gap simply by increasing the amount of PC sales to high-risk customers, he allegedly authorized a wider variety of improper accounting actions, all of which failed to comply with generally accepted accounting principles (GAAP). These included (1) reducing loan loss reserves; (2) recognizing revenue from a consignment sale; (3) recognizing revenue from a purported bill-and-hold sale; (4) accelerating purported revenue from payments by America Online, Inc. (AOL) for bundling its internet service with a Gateway PC purchase; (5) recording revenue from the sale of the company's fixed assets; and (6) making additional undisclosed accounting adjustments to meet analysts' earnings estimates.
According to the Commission's allegations, as a result of the improper accounting actions, Gateway announced that, for the third quarter of 2000, it exceeded analysts' expectations for revenue by $30 million, met analysts' expectations for earnings per share (EPS) of $0.46, and experienced year-over-year revenue growth of 16%. According to the complaint, these statements about Gateway's financial performance were false and misleading. The improper actions by defendants caused Gateway's net income for the third quarter of 2000 to be overstated by more than ten cents EPS, or 30%, and inflated reported revenue by $154 million, or 6.5%.
In its complaint, the Commission charged Weitzen, Todd, and Manza with violating the antifraud and false statements to accountants provisions of the federal securities laws. The Commission further charged Todd and Manza with violating record-keeping and internal controls provisions, and aiding and abetting Gateway's violations of the reporting and record-keeping provisions. Finally, the Commission charged Weitzen with violating the antifraud and reporting provisions as a control person of Gateway.
