Two former top executives of U.S. Foodservice Inc. of Columbia were charged by a federal grand jury Tuesday with a three-year conspiracy to increase their bonuses by overstating earnings by $800 million.
U.S. Foodservice, the nation's second-largest food distributor, is a subsidiary of Royal Ahold NV, which also owns Landover-based Giant Food LLC. When Ahold revealed the accounting fraud in February 2003, its share price fell by more than 60 percent, costing investors more than $6 billion, U.S. Attorney David N. Kelley of Manhattan said as he announced the indictments.
Former U.S. Foodservice chief financial officer Michael J. Resnick and former executive vice president for marketing Mark P. Kaiser will be arraigned Wednesday on one count each of conspiracy, securities fraud and making false filings with the Securities and Exchange Commission. Prosecutors said that between 2000 and early 2003, the two executives routinely cut the food distribution company's reported expenses by overstating financial rebates the firm was receiving from suppliers with whom they conspired to mislead U.S. Foodservice's auditors.
Two lower-level purchasing executives, Timothy J. Lee and William F. Carter, have pleaded guilty to participating in the scheme and are cooperating with authorities. Lee also pleaded guilty to insider trading for tipping off U.S. Foodservice suppliers in 2000 that Ahold was going to pay a premium to acquire the then-independent firm. One of the vendors, Peter O. Marion, was separately charged with insider trading.
"It was a cooking of the books fueled by the greed of the defendants," Kelley said. The four insiders received annual bonuses of $250,000 to $500,000 for meeting the company's "increasingly aggressive" budget goals, he said.
All five men are also facing civil SEC charges.
SEC deputy enforcement director Linda C. Thomsen said the "defendants manipulated income; they accelerated income, and in some cases, they simply made it up. When questioned about it, they lied and induced others to lie."
U.S. Foodservice, which was established in 1989 and grew rapidly through the 1990s through acquisitions, has 29,000 employees around the country and 250,000 customers at more than 100 sites nationwide. In addition to its headquarters in Columbia, the company has distribution facilities in Baltimore and Manassas.
The indictments are part of a broader web of legal problems facing Ahold, which remains under scrutiny by authorities in the United States and the Netherlands over financial problems in its Argentine unit and for the statements of its Dutch former chief executive and finance chief encouraging workers to buy company stock at the same time its finances were deteriorating.
Lawrence Benjamin, the new chief executive of U.S. Foodservice, said the company has cooperated with authorities in their "efforts to hold accountable those individuals who may have violated the law and abused our trust."
Lawyers involved in the case said criminal and civil charges are likely against two other suppliers that Lee has pleaded guilty to tipping off about the company's sale. Also under investigation is former Foodservice chief executive James L. Miller, who was forced out in May 2003 after the accounting irregularities came to light.
"We're pleased that after a lengthy investigation, criminal charges have not been brought against Jim Miller," said his defense lawyer, Paul Shechtman. "He's personally saddened by the indictment and particularly by the inclusion of Mike [Resnick] in it."
Kelley and Thomsen would not comment directly on future charges, but the prosecutor said, "Obviously we're taking a very broad look, both up the ladder and down the ladder."
Lee, 40, of Millersville, and Carter, 43, of Pasadena, have substantially cut their exposure to prison by agreeing to cooperate.
Lee "has completely accepted responsibility for his misconduct," said his Washington defense lawyer Jane F. Barrett. "He regrets his involvement and will continue to cooperate with the government. It's been a very difficult time for him." As part of his plea agreement, Lee set aside the proceeds from selling his home to help compensate Ahold investors.
Richard J. Morvillo, a defense lawyer for Kaiser, 47, of Ellicott City, said, "We have not had a chance to review the indictment in detail, but nothing has come to our attention to alter our view that Mr. Kaiser is innocent of any wrongdoing and, accordingly, intends at this point to defend himself vigorously."
"We are saddened that Michael Resnick has been made the scapegoat for the accounting fraud at U.S. Foodservice," said defense lawyer Paul G. Gardephe. Resnick, 42, of Finksburg, "was chief financial officer for only 15 months and was not knowledgeable about the fraud scheme. He looks forward to establishing his innocence in court."
A lawyer for Carter did not return calls. Jason Brown, attorney for Marion, 56, of East Greenwich, R.I., said he had not seen the indictment.
Legal experts said the Ahold scandal had a particularly strong impact on international calls for corporate reform because it emerged as international companies were balking at tighter financial controls imposed by U.S. regulators in the wake of scandals at Enron Corp. and WorldCom Inc.
The scandals at Ahold and Italian food giant Parmalat Finanziaria SpA "demonstrated that corporate fraud was not a uniquely American phenomenon," said Charles M. Elson, director of the corporate governance center at the University of Delaware. That "made acceptance of American governance changes much more palatable" in Europe, he said.
"It is as if white-collar corruption is contagious," said Paul D. Lapides of the corporate governance center at Kennesaw State University. "We see all sorts of gaming going on in the U.S. marketplace. It's no surprise at all it goes on overseas."
The U.S. Foodservice case is also part of larger efforts by the SEC and the Justice Department to "take on the vendors and suppliers who enable companies to falsify public company books and records," said Washington securities lawyer Jacob S. Frenkel. For instance, prosecutors and securities regulators have filed criminal and civil charges against several former suppliers to the Alabama footwear company Just For Feet Inc. stemming from inflated rebate payments.
In the U.S. Foodservice case, the indictment of Kaiser and Resnick charges the two men with making false adjustments to the amount of rebate money that U.S. Foodservice reported it was receiving from its suppliers. They allegedly would take the total generated by the company's computerized accounting system and add to it manually to make it appear that the firm was meeting budget targets. They then persuaded contacts at some of their suppliers to sign letters to U.S. Foodservice's auditors that falsely confirmed the size of the rebates, the indictment said. The scheme unraveled, Kelley said, after one vendor complained that he was being asked to sign an inaccurate confirmation letter.
In the year and a half since the accounting scandal broke, Ahold has put in place new leaders at U.S. Foodservice and at the corporate parent in the Netherlands. The firm has also sold a number of subsidiaries around the world.
"Management has changed," said Jean-Marie Eveillard, co-manager of First Eagle Funds in New York, which Eveillard said controls 8 million Ahold shares and holds $35 million worth of Ahold bonds. "The company has acknowledged its accounting in the U.S. Foodservice business was wrong. New people have been put in place."
Johnson reported from Washington.