AOL to Pay $3.5 Million Fine to SEC
(May 15, 2000) The SEC brought and settled a civil enforcement action against AOL for improper accounting practices in 1995 and 1996. AOL agreed to pay a $3.5 Million fine.
The Securities and Exchange Commission (SEC) filed a complaint in U.S. District Court in Washington DC against America Online (AOL) for civil penalties for improperly capitalized costs of advertising for new subscribers, and reporting those costs as an asset on its balance sheet. The SEC stated that these costs should have been treated as an expense.
The SEC and AOL also simultaneously settled the action. AOL agreed to pay a fine of $3.5 Million. AOL did not admit to any wrong doing. The action and settlement do not pertain to any financial results reported by AOL since FY 1997.
AOL has spent heavily on direct mail advertising, including distribution of disks containing AOL software. In 1995 and 1996 AOL capitalized these costs.
In October, 1996, AOL discontinued capitalizing customer acquisition costs and took a one-time charge of $385 million in the first quarter of fiscal 1997.
AOL reported profits for six of eight quarters in 1995 and 1996, rather than the losses it would have reported had the costs been expensed as incurred.
SEC Director of Enforcement Richard Walker stated in a press release that
"This action reflects the Commission's close scrutiny of accounting
practices in the technology industry to make certain that the financial
disclosure of companies in this area reflect present reality, not hopes about
|SEC Litigation Release.
Re: SEC v. AOL, U.S.D.C., D.C., Case No. 00-CV-1088.
Date: May 15, 2000.
|U.S. Securities and Exchange Commission v. America Online, Inc.,
Civ No. 1:00CV01088 (PLF), (D.D.C. May 15, 2000)
America Online, Inc. Pays $3.5 Million to Settle Financial Reporting Violations
In connection with a cease-and-desist order issued by the Commission today in a settled administrative proceeding against America Online, Inc. ("AOL"), the Commission filed a related action for civil penalties against AOL in the United States District Court for the District of Columbia. In settlement of that matter, AOL has consented to the entry of an order requiring that it pay a civil penalty of $3,500,000.
In the cease-and-desist order, In the Matter of America Online, Inc. [34-42781] the Commission found that AOL violated the reporting and books and records provisions of the federal securities laws in connection with its accounting for certain advertising costs during fiscal years 1995 and 1996. During that period, AOL capitalized most of the costs of acquiring new subscribers -- including the costs associated with sending computer disks to potential customers -- and reported those costs as an asset on its balance sheet, instead of expensing them as incurred. AOL reported profits for six of eight quarters in fiscal years 1995 and 1996, rather than the losses it would have reported had the costs been expensed as incurred. The advertising costs improperly capitalized by AOL reached approximately $385 million by September 30, 1996, when AOL wrote them off in their entirety.
Accounting rules do not allow a company to capitalize "direct response advertising costs" unless it can demonstrate from its past experience that future net revenues from customers obtained through the advertising will exceed the amount of capitalized costs. See Accounting Standards Executive Committee Statement of Position 93-7 ("SOP 93-7"). The Commission found that AOL could not meet this requirement because the volatile and unstable nature of the Internet marketplace precluded reliable predictions of future net revenues. Specifically, the Commission found that AOL's business was characterized, during the relevant period, by the following factors:
Due to these factors, according to the Commission's findings, AOL did not have sufficient reliable evidence that its capitalized advertising costs were recoverable to satisfy the requirements of SOP 93-7. AOL's financial statements as filed with the Commission in quarterly reports on Form 10-Q and annual reports on Form 10-K, from the quarter that began July 1, 1994 through the quarter beginning July 1, 1996 were consequently rendered inaccurate by AOL's accounting treatment for direct response advertising costs. Therefore the Commission found that AOL violated Section 13(a) of the Exchange Act and Rules 13a-1 and 13a-13 thereunder. The Commission also found that AOL violated Section 13(b)(2)(A) of the Exchange Act during its fiscal years 1995 and 1996, and the quarter beginning July 1, 1996, by recording as an asset advertising costs that could not be capitalized in accordance with the requirements of SOP 93-7.
Without admitting or denying the allegations in the Commission's complaint and its findings in the Order Instituting Proceedings, AOL has agreed to settle the Commission's claims by: (1) consenting to the entry of an administrative order requiring that it cease and desist from violations of Exchange Act Sections 13(a) and 13(b)(2)(A) and Exchange Act Rules 13a-1 and 13a-13, and (2) consenting to the entry of an order of the U.S. District Court requiring AOL to pay a civil penalty of $3,500,000.