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Chap

ter 2

0CHAPTER 20LEGAL LIABILITY

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KEY LEGAL TERMS

Privity: Absent a contractual relationship, the auditor does not owe a duty of care to an injured party

Breach of Contract: Client or auditor fails to meet the terms and obligations established in the contract (engagement letter)

Tort: Wrongful act other than a breach of contract for which civil action may be taken

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KEY LEGAL TERMSKEY LEGAL TERMS

Ordinary Negligence: Absence of reasonable due care in the conduct of an engagement

Gross Negligence: Extreme or reckless departure from professional standards of due care (constructive fraud)

Fraud: Actions taken with the knowledge or intent to deceive

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SUMMARY OF THE TYPES AND ACTIONS ACCOUNTANT'S LIABILITY

Types of Liability

Accountant's Actions Resulting in Liability

Common law - clients

Breach of contract Negligence Gross negligence/Constructive fraud Fraud

Common law - third parties

Negligence Gross negligence/Constructive fraud Fraud

Civil Liability under federal statutes

Negligence Gross negligence/Constructive fraud Fraud

Criminal Liability under federal statutes

Willful violation of federal statutes

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COMMON LAW - CLIENT

Common law does not require that the CPA guarantee his or her work product.

It does require, however, that the accountant perform professional services with due care (same degree of skill, knowledge, and judgment possessed by other members of the profession).

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ELEMENTS FOR ESTABLISHING AUDITOR LIABILITY OF

NEGLIGENCE TO CLIENTS UNDER COMMON LAW

A duty to conform to a required standard of care

A failure to act in accordance with that duty

A causal connection between the CPA's negligence and the client's damage

Actual loss or damage to the client

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COMMON LAW - THIRD PARTIES

The auditor’s liability under common law to third parties is an area that is very complex and court rulings are not always consistent across federal and state judicial jurisdictions.

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ELEMENTS FOR ESTABLISHING AUDITOR LIABILITY OF

NEGLIGENCE TO THIRD PARTIES UNDER COMMON LAW

The auditor had a duty to exercise due care

The auditor breached that duty by not following professional standards

The auditor's breach of due care was the proximate cause of the third party's injury

The third party suffered an actual loss as a result

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THREE STANDARDS FOR AUDITOR’S LIABILITY TO THIRD

PARTIES

Privity. Foreseen persons or classes. Reasonably foreseeable third parties.

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PRIVITY

The traditional view held that auditors had no liability under common law to third parties who did not have privity with the auditor.

Privity means that the obligations that exist under a contract are between the original parties to the contract, and failure to perform with due care results in a breach of that duty only to those parties.

Landmark Case: Ultramares v. Touche

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FORESEEN PERSONS OR CLASSES

Narrows auditor’s liability to small group of persons who are foreseen to rely on financial information.

In 1968, Rusch Factors, Inc. v. Levin, applied Section 522 of the Restatement (Second) of the Law of Torts to accountant's third party liability.

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FORESEEN PERSONS OR CLASSESFORESEEN PERSONS OR CLASSES

Extended Privity Standard Because:Increased liability of profession to nonprivity users

Unfair to impose the burden of loss on f/s users

Expanded liability will improve audit procedures

Auditors can obtain insurance against increased risks

Auditors can pass increased costs to clients

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REASONABLY FORESEEABLE THIRD PARTIES

A small number of states have adopted a more expansive view of auditor's liability to third parties; the reasonably foreseeable third parties approach.

In the first case in this area, H. Rosenblum, Inc. v. Adler, the New Jersey Supreme Court ruled that Touche was responsible for damages incurred by all reasonably foreseeable third parties who relied on the financial statements.

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COMMON LAW - FRAUD

If an accountant has acted with an intent to deceive a third party, the accountant can be held liable for fraud.

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ELEMENTS FOR ESTABLISHING AUDITOR LIABILITY FOR FRAUD

UNDER COMMON LAW

A false representation by the accountant

Knowledge or belief by the accountant that the representation was false

The accountant intended to induce the third party to rely on the false representations

The third party relied on the false representation

The third party suffered damages

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STATUTORY LIABILITY

Securities Act of 1933 Securities Exchange Act of 1934 Private securities Litigation Reform Act of 1995 Securities Litigation Uniform Standards Act of 1998 Foreign Corrupt Practices Act Racketeer Influenced and Corrupt Organizations

Act

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SECURITIES ACT OF 1933

Section 11 of the Securities Act of 1933 imposes a liability on issuers and others including auditors for losses suffered by third parties when false or misleading information is included in a registration statement.

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ELEMENTS FOR ESTABLISHING AUDITOR LIABILITY TO THIRD

PARTIES - SECURITIES ACT OF 1933

In contrast to common law, the plaintiff does not have to prove negligence or fraud, reliance on the auditor's opinion, or existence of a relationship.

The plaintiff need only prove that a loss was suffered and that the audited financial statements contained a material omission or misstatement.

One defense that is available to the auditor is that of "due diligence" That is, the auditor must have made a reasonable investigation.

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SECURITIES ACT OF 1934

Two sections are particularly important: Section 18 imposes liability on any person who

makes a material false or misleading statement in documents filed with the Securities and Exchange Commission (SEC).

Section 10(b) and related Rule 10b-5.

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SECURITIES ACT OF 1934

Rule 10b-5 states that it is... unlawful for any person, directly or indirectly, by

the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange,a. To employ any device, scheme, or artifice to defraud,b. To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statement made, in the light of the circumstances under which they were made, not misleading, orc. To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.

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ELEMENTS FOR ESTABLISHING AUDITOR LIABILITY TO THIRD PARTIES UNDER THE

SECURITIES EXCHANGE ACT OF 1934

A material, factual misrepresentation or omission

Reliance by the plaintiff on the financial statements

Damages suffered as a result of reliance on the financial statements

Scienter (intent to deceive, manipulate, or defraud)

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PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995

Prior to this act auditors were subject to “joint and several” liability (fully liable for all assessed damages)

This legislation provides for “proportionate” liability (liable only for portion of damages that correspond to percentage of defendant’s responsibility)

Intended to minimize deep-pockets lawsuits

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SEC SANCTIONS

Rule 2(e) of the Rules of Practice empowers the SEC to suspend any person the privilege of practicing if that person:

1. Has been convicted of a misdemeanor involving moral turpitude

2. Has been convicted of a felony3. Has had his license to practice as an accountant

suspended or revoked4. Has been permanently enjoined from violating

provisions of the federal securities laws5. Has been found by the Commission in an

administrative proceeding to have violated provisions of the federal securities laws.

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FOREIGN CORRUPT PRACTICES ACT

Passed by Congress in 1977 in response to the discovery of bribery and other misconduct on the part of over 300 American companies.

Imposes sufficient record-keeping to accurately reflect transactions and adequate systems of internal controls for public companies.

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RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT

Enacted in 1970 by Congress to combat the infiltration of legitimate businesses by organized crime. However, it has been used against accountants. RICO provides civil and criminal sanctions for certain types of illegal acts, including treble damages.

Racketeering activity includes a long list of federal and state crimes with mail fraud and wire fraud the most common acts alleged against accountants.

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CRIMINAL LIABILITY

Auditors can also be held criminally liable under federal statues.

Criminal prosecution requires that some form of criminal intent be present.

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APPROACHES TO MINIMIZING LEGAL LIABILITY AT THE

PROFESSIONAL LEVEL

Establishing stronger auditing and attestation standards (Best Practices)

Continually updating the Code of Professional Conduct and sanctioning members in violation.

Educating users by closing “expectation gap” Clarify auditor’s responsibility for fraud and

illegal acts Revise audit report to better communicate what

audit entails

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APPROACHES TO MINIMIZING LEGAL LIABILITY AT

THE FIRM LEVEL

Instituting sound quality control and review procedures.

Ensuring that members of the firm are independent. Following sound client acceptance procedures. Being alert for risk factors that result in lawsuits. Diligently performing and documenting work.