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Fix or Fraud?

The CFO says he was making a good-faith effort to straighten out a serious ERP problem. The SEC says he committed financial fraud. And right in the middle of the whole mess, Sarbanes-Oxley passed.

At issue is what happened in the next six months. “We billed $80 million a month and sent over 500,000 bills per month,” says Fresia. “You couldn’t fix this in Excel — you needed to have a systems fix.” After six weeks on the job, he says, he was regularly alerting the parent company to the problems. However, he says, he was also being regularly assured by the CIO that fixes were imminent. “The systems integration [problems] created a hazy environment where I looked at the glass as half empty, the reporting organization looked at it as half full, and even to this day, I’m not sure who was quite right,” he says.

The SEC says Fresia, knowing that receivables were aging and anticipating that some customer accounts might prove uncollectible, should have either increased the company’s bad debt reserve or disclosed contingent losses related to the billing adjustments. Instead, it says, he left the bad debt reserve unchanged at its historic rate of 0.8 percent, and made no disclosure.

“As a result of Fresia’s improper accounting for Expanets’ uncollectible accounts receivable,” says the SEC’s complaint, “Northwestern overstated its income from continuing operations by approximately 19 percent and 39 percent for the second and third quarters of 2002, respectivelyÂÂÂÂ…. Moreover, in its segment reporting for Expanets, Northwestern overstated Expanets’ operating income by approximately 86% and 270%, respectively, for the second and third quarters of 2002.”

Fresia says, in fact, he did ask that a disclosure be included in the second-quarter filing, but was turned down. According to the SEC’s account, “Northwestern personnel declined to include this proposed language in the company’s 2002 second quarter Form 10-Q, at least in part, on the grounds that Fresia’s proposed disclosure was submitted too late for inclusion.”

“If I had a time machine and could go back, I’m not sure I would do anything differently,” says Fresia. Indeed, he says his attorney asked SEC staff what it would have had him do differently, and claims he was told that Fresia should have used the whistle-blower provisions of the Sarbanes-Oxley Act. But, counters Fresia, the Sarbanes-Oxley Act was passed just two weeks before NorthWestern refused Fresia’s suggested 10Q disclosure. “No one knew 15 days after the act passed what was in it.”

Even if he had, says Fresia, it was far from clear to him what to do after the parent company declined to include his disclosure. “It’s an interesting case study,” he says, “As things are happening in a very unstable environment, how choices that seem to be the right moral, ethical thing to do [can be interpreted by regulators in] a very harsh complaint against you that says not only did you do this, you did it willingly.”

This March, NorthWestern, parent of Expanets, settled an administrative proceeding with the SEC, and agreed to cease and desist from further violations of securities laws.

In April, the SEC settled charges against four former NorthWestern officers: former CEO Merle D. Lewis, former COO Richard R. Hylland, former CFO Kipp D. Orme, and former controller Kurt D. Whitesel.

And on Monday, the same day Fresia was charged, his boss, former Expanets CEO John Charters, consented — without admitting or denying the allegations in the commission’s complaint against him — to the entry of a final judgment permanently enjoining him from violating or aiding and abetting violations of the provisions he allegedly violated. He also agreed to pay $50,000 in civil penalties.

All of the other executives in the case have settled, Fresia notes, for relatively small amounts, and Charters was not barred from being an officer or director of a public company.

But Fresia says he doesn’t intend to settle. “For me at this point it is kind of a matter of principle. I feel like I did the right thing,” he says. “The SEC has seemingly limitless resources. Most people never go to trial because it is easier to fold. I feel like it would be worth it to see if cooler heads prevail.”

The SEC’s complaint does request that Fresia be barred from acting as a director or officer of a public company. Asked by CFO.com if losing the case would end his finance career, Fresia says: “Not necessarily. More and more companies are going private.” (His current company, ACT Teleconferencing, is currently in the midst of a going-private transaction.)

Adds Fresia: “If you saw the binder [I gave to the SEC], it’s very well organized, has tabular time lines — and not just my words, [but] E-mails, reports — you would be saying the same thing. At some point, you can’t fold to the threats.”

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