The Supreme Court has been asked to review a decision that sent tremors through the accounting profession by holding that customers of a security firm have a right to sue an accountant whose audits of the firm are false or misleading.
The case involves claimes for $65 million against Touche Ross & Co., one of the accounting profession's "Big Eight" firms; Weis Securities, Inc., a defunct broker-dealer that Touche Ross served as independent auditor from 1969 to 1973; the Securities Investor Protection Corp. (SIPC:, a quasi-governmental body created by a 1970 federal law whose members include virtually all registered broker-dealers, and Edward S. Redington, who, after Weis became insolvent, became its trustee in liquidation.
Last April, the 2nd U.S. Circuit Court of Appeals ruled 2 to 1 that the Securities and Exchange Act of 1934 implied a right to bring private actions that empowered SIPC and Redington to sue Touche Ross.
In their complaint, SIPC and Redington said that in the fiscal year ended May 26, 1972, five Weis officers conceived and executed a scheme to conceal from regualtory authorities and the public that Weis was in dire straits.
For example, the officers claimed pre-tax earnings, of about $1.7 million, although Weis actually had suffered a loss of at least $1.5 million. The officers were convicted of false financial reporting that perpetrated a $3.2 million fraud on Weis' customers.
A few weeks later, on July 7 and 21, Touche Ross said in four "opinion letters" that in accord with "generally accepted accounting procedures," it had examined Weis' financial statements and found them to represent its condition fairly and accurately.
Weis took no steps to remedy its condition, and it continued to deteriorate. Indeed, SIPC and Redington alleged that Touche Ross' "grossly negligent" certification of Weis' misleading statements induced a failure in the firm to take action - such as infusion of capital or merger with another broker-dealer - to avoid inancial collapse.
A federal judge ordered Weis liquidated in May 1973. The liquidation was and is the largest since the SIPC law was enacted.
The 140,000-member American Institute of Certified Public Accountants, in a friend-of-the-court brief, emphasized that customers given a right to sue had not shown that they had relied on the Touche Ross opinions in buying or selling securities.
In 1976, SIPC sued Touche Ross for $14 million, the sum it advanced to Weis' customers. Redington claimed $51 million for the firm's clients.
U.S. District Judge Inzer B. Wyatt dismissed the complaints on the ground that SIPC and Redington had failed to state a claim on the basis of which he could grant relief.
The law's section 17 (a), which requires broker-dealers to file accurate and complete reports prescribed by the Securities and Exchange. Commission, "was designed to supply administrative guidance in the bookkeeping area and not to create rights in anybody," Wyatt said. Moreover, he said, the section "does not impose any duty on accountants."
In the opinion for the appeals court majority, however, Circuit Judge J. Edward Lumbard wrote, "Certified Public Accountants play a significant role in the scheme created by the '34 trading."
Pointing out that other sections of the act have been interpreted to allow accountants to be sued for breach of duty, Lumbard wrote that the section at issue does, too, even though its legislative history shows an attempt by Congress neither to create nor to deny a private remedy.
In the dissenting opinion, Circuit Judge William H. Mulligan accused the majority of enacting "judicial legislation." Congress, he said, "did not intend a private damage remedy to be available to broker's customers." He emphasized that a different section of the law, 18 (a), which was unavailable to SIPC and Redington, is the expressive remedy provided for violations of 17 (a).
The accountants' institute termed the appellate court ruling "profoundly disturbing" and a "jarring departure" from traditional regulations of the securities industry.
The institute said that the decision threatens to impose "insupportable risks upon the performance of the audit function." Similarly, Touche Ross, in its petition for Supreme Court review, asserted that the decision has a "serious potential" to generate voluminous litigation that would further burden the federal courts.
By contrast, Redington said that accountants would become liable, if the decision is left standing, only in exceptional circumstances, such as those in the Weis case. Even then, liability would be restricted to a small group, Redington contended.