The chief executive of Beazer Homes USA could face a lawsuit by regulators over past bonuses.
The Securities and Exchange Commission notified Ian J. McCarthy, who is also president of the Atlanta-based homebuilder, that it will recommend a civil action against the executive to “collect certain incentive compensation and other amounts allegedly due,” according to a federal filing from Beazer.
A Beazer spokeswoman did not respond to a request for comment Monday. In the filing, Beazer said McCarthy intends to respond to the action, also known as a Wells notice.
A Wells notice is not a formal allegation, legal experts say. The notice informs the recipient that there is an investigation and a recommendation of enforcement action.
Under a so-called “clawback” provision in the Sarbanes-Oxley Act, CEOs and chief financial officers can be requried to refund bonuses or other incentive-based compensation and profits from stock sales following a financial restatement, even if they personally committed no wrongdoing, said Larry Iason, a defense attorney in New York.
“This provision is triggered if there’s ever been a restatement,” said Iason.
In May 2008, Beazer released several periods of restated earnings after an internal investigation found "accounting errors and irregularities,” the company said at the time.
In September of the same year, Beazer and the SEC reached a settlement after a federal investigation of the company’s accounting practices.
According to the initial investigation, when the housing market was hot, between 2000 and 2005, Beazer put some of its earnings in rainy day funds while still meeting analysts expectations, the SEC alleged. Then in 2006 when things began turning down, Beazer used those reserves to offset losses. The company improperly reserved and later withdrew money in accounts with names such as "land inventory," the SEC said.
The company did not admit any wrongdoing in the settlement, nor did it pay any fines or penalties. But it consented to a cease-and-desist order requiring future compliance with federal securities laws and regulations.
The Wells notice from the SEC, however, suggests it will pursue McCarthy for any bonuses received amid the accounting problems.
Analyst Vicki Bryan of Gimme Credit wonders why the SEC took so long to file the notice.
“In 2008, that was the time for the SEC to say, ‘Look, we have issues,’” she said. “This just seems like a late and uninspired effort. I mean there are a few things about this one that strike me as odd.”
Bryan said she also wonders why McCarthy would respond to the filing since he’s not required to do so.
“Few choose to respond formally like this, so I don’t know what to make of that,” she said.
In 2007, when the audit committee's investigation was under way, McCarthy received approximately $7.5 million in total compensation, according to company proxy statements. More than $6 million came from sock and option awards for the fiscal year that ended Sept. 30, 2007.
The regulatory issues, which also include a settlement involving the practices of its now-defunct mortgage arm, have compounded Beazer's woes amid the housing market collapse. The company lost money for 11 straight quarters starting in 2006, before posting a profit for the three months ended Sept. 30.
-- Bloomberg and The Associated Press contributed to this report.
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