SEC Issues BF Borgers Exemptive Order For SEC Reporting Companies
On May 20, 2024, the Securities and Exchange Commission (“SEC”) provided exemptive relief to certain SEC reporting companies affected by the SEC’s permanent suspension of BF Borgers CPA PC and its owner, Benjamin F. Borgers (together, “BF Borgers”), from appearing and practicing before the SEC as an accountant. It is expected that public companies that previously retained BF Borgers will need to engage a new, qualified, independent, PCAOB-registered public accountant to audit or review the financial information included in their SEC filings to comply with SEC Reporting Requirements.
On May 3, 2024, the SEC charged BF Borgers with Massive Fraud, which it described as a “sham audit mill,” affecting more than 1,500 SEC filings. The SEC found that BF Borgers committed deliberate and systemic failures to comply with Public Company Accounting Oversight Board (PCAOB) standards in its audits and reviews incorporated in more than 1,500 SEC filings from January 2021 through June 2023.
The SEC also charged BF Borgers with falsely representing to its clients that the firm’s work would comply with PCAOB standards; fabricating audit documentation to make it appear that the firm’s work did comply with PCAOB standards; and falsely stating in audit reports included in more than 500 public company SEC filings that the firm’s audits complied with PCAOB standards.
According to the May 3rd Order against BF Borgers, from January 2021 through June 2023, BF Borgers had 350 clients who were required under the SEC’s rules and regulations to have their financial statements audited and/or reviewed by a PCAOB-registered accounting firm in accordance with PCAOB standards and to incorporate those financial statements into filings made with the SEC. But instead of auditing those clients according to PCAOB standards, Benjamin Borgers instructed his audit staff and contractors to copy workpapers from previous engagements as the final workpapers for new engagements. As a result, BF Borgers’ workpapers falsely documented the performance of audit and review procedures and approvals that had not occurred, including falsely representing that both Borgers, as the engagement partner, and an EQR reviewed and approved the workpapers.
The SEC further claimed that BF Borgers auto-deleted emails, tried to circumvent the auditing industry’s watchdog agency, and wasn’t able to provide any proof of much of its work.
The May 3rd Order banned BF Borgers the privilege of appearing or practicing before the SEC as an accountant. As a result, BF Borgers may not participate in, or perform the audit or review of, financial information included in SEC filings, issue audit reports included in SEC filings; provide consents with respect to audit reports; or otherwise appear or practice before the SEC. The May 3rd Order left 350 issuers in need of a new accountant at the same time and caused obvious difficulties for many to meet their SEC reporting deadlines due to the finite number of qualified replacement accountants available to hire and the time needed for new accountants to perform the required review of the financial information.
To help relieve the obvious hardships created by the BF Borger fraud, the SEC’s May 20th Exemptive Order provides an additional period of time for the filing of quarterly reports on Form 10-Q and for issuers that have filed a timely Form 12b-25 notifying the SEC of their inability to file a report on a timely basis. The SEC order will provide affected SEC reporting companies with an additional period of time to hire a new, qualified, independent, PCAOB-registered public accountant and file with the SEC, financial information that complies with the requirements of the federal securities laws.
Any registrant that has questions related to applicable filing deadlines or the audit requirements in their SEC filings should contact the Division of Corporation Finance at (202) 551-3500 or at https://www.sec.gov/forms/corp_fin_interpretive.
For further information about this securities law blog, please contact Brenda Hamilton, Securities Attorney, at 200 E. Palmetto Park Rd, Suite 103, Boca Raton, Florida, (561) 416-8956, or by email at [email protected]. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.
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Brenda Hamilton, Securities Attorney
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