Sunday, 29 Nov 2020

Stock buybacks are about to get more complicated.

The Securities and Exchange Commission recently settled a case that may have major implications for publicly traded companies, notes today’s DealBook newsletter. The regulator imposed a fine over a stock buyback by the energy company Andeavor, introducing an unexpected accounting wrinkle to the repurchase process that experts say companies have probably not considered before.

Late in negotiations to sell itself to Marathon Petroleum in 2018, Andeavor announced a $250 million buyback, repurchasing 2.6 million shares at an average price of $97 each. Shortly afterward, Andeavor announced a deal with Marathon that valued its stock at more than $150 per share.

The S.E.C. punished the move by applying an accounting rule in an unforeseen way. The regulator found that the buyback was initiated when Andeavor had material nonpublic information that wasn’t disclosed to shareholders. But instead of charging the company or executives with fraud or insider trading, it “zeroed in on the company’s accounting controls, and found them inadequate to ensure compliance” with Andeavor’s own rules about buybacks, according to lawyers at Davis Polk. Andeavor admitted no wrongdoing and agreed to pay a $20 million penalty.

Buybacks were already under increased political and regulatory scrutiny. Now, there is a new accounting twist, adding extra concerns over internal controls. “The process of approving a buyback now seems more complicated than it was a day before the case came out,” said Robert Cohen, a partner at Davis Polk and a former S.E.C. enforcement lawyer.

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