SEC Socks Former CEO With SOX Clawback Move

July 24, 2009 (PLANSPONSOR.com) - The Securities and Exchange Commission (SEC) is seeking the return of bonuses and stock sale profits from a CEO who didn't have anything to do with accounting fraud at his former company.

In what was described as the first action seeking reimbursement under the SOX “clawback” provision (Section 304) from an individual who is not alleged to have otherwise violated the securities laws, the SEC has petitioned a court to order Maynard Jenkins, former chief executive of CSK Auto Corporation, to reimburse the company and its shareholders more than $4 million that he received in bonuses and stock sale profits while CSK was committing accounting fraud. The SOX “clawback” provision deprives corporate executives of money that they earned while their companies were misleading investors.

“The personal compensation received by CEOs while the companies they serve engage in wrongdoing can be clawed back,” said Robert Khuzami, Director of the SEC’s Division of Enforcement, in the announcement . “The costs of such misconduct need not be borne by shareholders alone.”

“Jenkins was captain of the ship and profited during the time that CSK was misleading investors about the company’s financial health,” said Rosalind R. Tyson, Director of the SEC’s Los Angeles Regional Office. “The law requires Jenkins to return those proceeds to CSK.”

According to the SEC’s complaint filed in U.S. District Court for the District of Arizona, Jenkins made $2,091,020 in bonuses and $2,018,893 in company stock sales that should have been reimbursed to CSK pursuant to SOX Section 304.

Third Action

The SEC notes that this is the third enforcement action in the SEC’s investigation into CSK’s alleged accounting misconduct. In March 2009, the SEC charged four former CSK executives with securities fraud, and in May 2009, the SEC brought a settled enforcement action against CSK for filing false financial statements for fiscal years 2002 through 2004.

CSK was an automotive parts and accessories retailer headquartered in Arizona during the relevant time period of the misconduct alleged in the SEC’s enforcement actions. In July 2008, CSK became a wholly-owned subsidiary of O’Reilly Automotive, Inc.

According to the SEC’s complaint against Jenkins, CSK (which became a wholly-owned subsidiary of O’Reilly Automotive, Inc. in July 2008), was required to prepare an accounting restatement due to its fraudulent conduct. While Jenkins served as CEO, CSK filed two such restatements related to its overstated vendor allowances.

The SEC alleges that, in violation of Section 304, Jenkins failed to reimburse CSK for bonuses, or other incentive-based or equity-based compensation, and profits from the sale of CSK stock he received during the 12-month periods following the filing of each of CSK’s fraudulent financial statements. The SEC’s complaint does not allege that Jenkins engaged in the fraudulent conduct.

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