SEC charges Penn Traffic with accounting fraud

The Business Journal – Central New York October 3, 2008 | Reinhardt, Eric SYRACUSE – The Penn Traffic Co. has agreed to settle charges of accounting fraud without admitting or denying the allegations.

The Securities and Exchange Commission (SEC) announced the charges and settlement Sept. 30.

The settlement ends an investigation into Penn Traffic’s accounting practices and policies prior to the company’s emergence from bankruptcy in April 2005, a Penn Traffic statement said. The SEC imposed no fines or monetary penalties on the company. in our site bilo weekly ad

Penn Traffic has worked to address a number of “legacy issues,” so its resources can again focus on its operations, Daniel Mahoney, Penn Traffic senior vice president and general counsel, said in a statement.

“One of the legacy issues facing the company was this SEC investigation, so the settlement is another important step in the right direction,” Mahoney said.

The SEC charged the Syracuse-based supermarket operator and wholesale food distributor with fraud for orchestrating multi-million dollar accounting schemes that inflated its operating income and overstated its after-tax net income.

The SEC’s complaint, filed in the U.S. district court for the Northern District of New York, alleged Penn Traffic carried out the accounting fraud over several reporting periods. The company failed to file certain required financial reports with the SEC, or filed reports that did not fully comply with SEC regulations, according to the commission.

David Rosenfeld, associate director of the SEC’s New York regional office, wouldn’t say when the Penn Traffic investigation began, but says the company’s conduct lasted several years.

“The commission continues to focus on accounting improprieties,” Rosenfeld says. “It’s a big priority for the commission and has been for many years, and we will take action when a company engages in fraudulent conduct that falsifies the company’s financial condition.” Penn Traffic intentionally inflated its operating income and other financial results by prematurely recognizing promotional allowances, the SEC’s complaint alleged. The commission said the scheme lasted from approximately the second quarter of Penn Traffic’s 2001 fiscal year through at least the fourth quarter of its 2003 fiscal year. go to web site bilo weekly ad

Promotional allowances are fees paid from vendors in exchange for various marketing and promotional activities, such as inclusion in a supermarket’s weekly circular.

Penn Traffic then prematurely recorded a total of approximately $10 million in operating income and reported false results in financial reports filed with the commission, the SEC alleged.

The SEC’s complaint also alleged a separate scheme from at least the first quarter of Penn Traffic’s 2000 fiscal year through the first quarter of its 2003 fiscal year.

The company recorded fraudulent entries in the books and records of Penny Curtiss, its wholly owned baking subsidiary that has since closed, according to the complaint. For example, the commission said Penny Curtiss fabricated accounting records to overstate inventory and reduce the cost of goods sold.

As a result, Penn Traffic overstated after-tax net income by more than $7 million and reported the false results in financial reports filed with the commission, the SEC said.

Penn Traffic closed the Penny Curtiss bakery in January 2008. The closure was unrelated to the SEC investigation, the company said.

The SEC’s complaint further alleged that Penn Traffic failed to file financial reports or filed non-compliant reports with the commission between the fourth quarter of fiscal year 2003 and the fourth quarter of fiscal year 2008.

Penn Traffic consented to a permanent injunction against future violations of federal securities laws, the company said.

As part of the settlement, Penn Traffic will hire an independent examiner who will provide annual reports to the SEC, the U.S. attorney for the Northern District of New York, and the company’s board of directors. The reports will outline the company’s internal controls on promotional allowance, as well as financial reporting, according to a Penn Traffic statement.

The examiner should be retained within 30 days and will serve for three years, the company said.

The SEC previously charged two former Penn Traffic executives and one Penny Curtiss executive for their roles in the fraudulent schemes alleged in the complaint.

The commission’s case is pending against Leslie Knox, Penn Traffic’s former senior vice president and chief marketing officer, and Linda Jones, Penn Traffic’s former vice president of non-perishable merchandising.

In 2005, the commission obtained a consent judgment against Michael Lawler, the former director of manufacturing at Penny Curtiss, permanently enjoining him from violating the antifraud and books and records portions of securities laws.

Penn Traffic operates 93 supermarkets in upstate New York Pennsylvania, Vermont, and New Hampshire under the P&C, Quality, and BiLo names. It also supplies independent supermarkets and wholesale accounts through its wholesale food distribution business.

Reinhardt, Eric