The United States prides itself on being first in a wide range of socioeconomic, scientific, and cultural top ten lists. Watching more television programming per capita than any other nation, however, is not among our most flattering claims to fame. Recent global surveys reveal that Americans spend approximately five hours per day watching the boob tubePoland ranks second in the worldwide TV viewing derby.During the 1990s, surfing the World Wide Web began rivaling TV viewing as a favorite activity of the most sedentary among us. The Internets growing popularity convinced several e-commerce companies, principal among them AOL and Yahoo!, to establish massive websites intended to serve as portals to the Internet. These Internet portals were designed to capture Internet users when they went online and then direct them to the specific entertainment, business, sports, or other sites they wanted to visit. AOL, Yahoo!, and their competitors expected to produce huge revenue streams by selling advertising on their portal websites to companies wanting to market their products and services to Internet users.Tech-savvy experts soon realized the portal concept could be applied to the rapidly evolving television medium as well. A companys determined effort to establish a new, high-tech television portal ultimately triggered a large-scale accounting fraud that imposed billions of dollars of losses on investors worldwide.
From the Far East to the West Coast
Che-Chuen Yuen was born in 1948 in Shanghai during the bloody civil war that rocked China following the conclusion of World War II. After the Chinese civil war ended in 1949, Mao Zedong, the leader of the Communist forces that gained control of the country, established an authoritarian central government and renamed the nation the Peoples Republic of China. The new Communist government forced business owners, professionals, and other alleged counter-revolutionaries to leave the country. Che-Chuens father, a businessman, was among those banished. The elder Yuen moved his family, including his infant son, to Hong Kong, which had been a British colony since the mid-1800s. Fifteen years later, Che-Chuen immigrated to the United States, where he assumed the name Henry.After obtaining an undergraduate degree in mathematics at the University of Wisconsin, Yuen earned a doctorate in applied mathematics at the prestigious California Institute of Technology in Pasadena, California. Yuen remained in southern California after completing his doctorate, working for 14 years as a research scientist for TRW, a large conglomerate. Because he had always been fascinated by the U.S. legal system, Yuen attended law school on a part-time basis while employed by TRW. He eventually earned a law degree from Loyola Law School near downtown Los Angeles.While working toward his doctorate at CalTech, Henry Yuen became close friends with Daniel Kwoh, a doctoral student in the universitys physics department. Like Yuen, Kwoh accepted a research position with TRW after completing his degree. In addition to having the same employer, the two friends shared a mutual interest in sports.As a young man, Yuen had aspired to become a professional soccer player. When he failed to achieve that goal, he became a martial arts expert, specializing in wing chun, a form of martial arts involving aggressive, close-range combat. After coming to the United States, Yuen became a hardcore baseball fanhis favorite team was the Boston Red Sox. Yuens full-time job at TRW and his evening law school classes frequently prevented him from watching Red Sox games televised live on the West Coast, so he would program his VCR to record those games. Too often, Yuens VCR failed to record a game, leaving him frustrated and angry. In his mind, if a research scientist with a CalTech doctorate could not successfully use a VCRs recording technology, there was something wrong with the technology.In 1988, Yuen and Kwoh teamed together to develop a simplified method for programming VCRs referred to as VCR Plus. This technology became the initial product of a small company they co-founded, Gemstar Development Corporation, which was later renamed Gemstar International Group Ltd. Gemstar produced only modest revenues during its first few years of operation, but in 1990 the companys seemingly bright future persuaded Business Week to name Yuen and Kwoh the nations best entrepreneurs. Five years later, the men took their company public, listing its stock on the NASDAQ stock exchange. In 1997, after a reported falling out between the two Gemstar founders, Kwoh left the company to become an independent venture capitalist.Gemstars revenues increased from $42 million in 1995, its first year as a public company, to $167 million in 1999. After incurring operating losses from 1995 through 1997, the company posted a profit of $39 million in 1998. The following year, the companys net income rose to $74 million.A strategic initiative implemented by Yuen during the 1990s accounted for Gemstars steadily improving operating results. That initiative involved acquiring a wide range of patents that allowed the company to gain effective control over programming and search processes vital to the broadcasting and electronic communications industries. Gemstar generated revenues by licensing its patented technologies to companies in those industries. Yuen and his subordinates closely monitored the efforts of other companies to develop technologies similar to those for which Gemstar held a patent. When Yuen discovered a potential infringement of a Gemstar patent, he would sue the offending company. Yuens legal background helped Gemstar prevail in most of those lawsuits.
Patent Terrorist
Henry Yuen quickly earned a reputation as a ruthless competitor because of his litigious business strategy. So ruthless, in fact, rivals began referring to him as a patent terrorist. During an interview with Business Week, a cable TV executivewho asked to remain anonymouscandidly admitted he scares the hell out of us. Yuen defended his aggressive tactics and insisted they were not improper or unethical. I am no terrorist. A terrorist is someone who breaks the law. I am only doing what the U.S. Congress and patent law allow. U.S. News and World Report referred to Yuen, who was unknown to the general public, as the Bill Gates of television.Among the first companies to provide on-screen navigation guides was United Video. During the mid-1980s, the small company based in Tulsa, Oklahoma, began marketing the Prevue Network, a scrolling on-screen programming guide, to cable TV networks. United Videos executives surprised their much larger competitors in 1999 when they orchestrated a successful takeover of TV Guide International, a company they purchased from Rupert Murdochs News Corporation. Following the takeover, Murdoch became the largest shareholder of the new company, which assumed the name TV Guide, Inc. The company rebranded its on-screen programming guide the TV Guide Network.Following the merger of United Video and TV Guide International, the new companys management team began butting heads with Henry Yuen. By this time, Gemstar controlled most patents relevant to what had become known as IPG (interactive program guide) technology. Yuen blocked every effort by TV Guide to upgrade its on-screen navigation guide. To solve this problem, Rupert Murdoch goaded TV Guide to make a hostile takeover bid for Gemstar. Murdoch and the TV Guide management team were no match for the crafty and temperamental Yuen, who forced them to sell their company to him in 2000. To take advantage of TV Guides brand name, Yuen named the newly-formed company Gemstar-TV Guide International, Inc. (GTGI).Financial analysts and other members of the investment community had high expectations for the new company. Those expectations caused GTGIs stock price to surge, creating a market capitalization of $20 billion for the company shortly after the merger. Thanks to that surging stock price, Henry Yuen became a billionaire and secured a spot in the Forbes 400, the annual compilation of the 400 richest U.S. citizens. At the age of 51, the immigrant whose family had been forced to leave China following the Communist takeover ranked among the most successful capitalists in the world and was proudly living the American dream. But Yuen wasnt satisfied with his accomplishments. According to the New York Times, he believed his companys on-screen guide would be the ultimate toll-keeper for the media [television] and told colleagues that Gemstar would someday be bigger than Microsoft.
Post-Merger Blues
Following the merger creating GTGI, Henry Yuen and Rupert Murdoch, the formerly fierce rivals, became the new companys largest and most influential stockholders. Yuen also served as the companys chief executive officer (CEO) and chairman of the board of directors. Gemstars former stockholders, led by Yuen, controlled 55 percent of the companys common stock, while TV Guides former stockholders, led by Murdoch, controlled the remainder.Yuen organized GTGI into three business segments. Easily the largest of these segments was the Media and Services Sector, which accounted for approximately 70 percent of the companys consolidated revenues. That division produced the bulk of its revenues from TV Guide, which at the time was the worlds largest weekly publication in terms of circulation and readership. The second business segment was the Technology and Licensing Sector, which included the former operations of Gemstar International.Following the acquisition of TV Guide International in 2000, Yuens principal strategic initiative was to use Gemstars IPG patents and TV Guides brand name to establish a product line of interactive information and navigation services for cable TV networks. This product line of services made up GTGIs third and smallest business segment, the Interactive Platform Sector. Advertising served as the principal revenue producer for this division. Yuen was convinced that over the years to come major retailers and service companies would allocate large portions of their promotional budgets to ads placed on GTGIs electronic navigation guides, most notably an overhauled, high-tech version of the TV Guide Network which reached more than 50 million households in the U.S. alone.Henry Yuen began pressuring his subordinates in late 2000 to ramp up their marketing efforts for the Interactive Platform Sector. In an email sent to Joe Kiener, GTGIs co-president, Yuen characterized a revenue forecast prepared for the Interactive Platform Sector as being completely unacceptable because it was too conservative. Yuen told Kiener the street expects some sort of explosive growth [for the division] and we cannot suffer any departure from the trend that I have laid out, or else no one will believe the synergy story we have. After adding that we are shooting for the moon, Yuen insisted any GTGI executives not committed to that goal should leave immediately before contaminating the sales force.
Henry & Rupert: An Unhappy Marriage
When Henry Yuen oversaw the takeover of TV Guide, he realized the newly-created company would face major challenges. Paramount among those challenges was the companys schizoid business model and the strong personalitiesincluding his ownthat would play key roles in its operations. Yuen was intent on creating a New Age, high-technology company that would eventually serve as a traffic cop for literally billions of television viewers around the world. TV Guides former executives and major stockholders, led by Rupert Murdoch, wanted to maintain and increase the revenues from the old school media empire that had revolved for decades around the TV Guide.The composition of GTGIs twelve-member board of directors exacerbated the companys split personality. Six directors were former Gemstar executives, while the remaining six directors, among them Rupert Murdoch, were former TV Guide heavyweights. The Gemstar-TV Guide merger agreement gave Yuen the right to cast the tie-breaking vote to resolve deadlocks between the two factions of the GTGI board. To counterbalance Yuens powerful position on the board, Murdoch included a stipulation in the merger agreement allowing the former TV Guide directors to dismiss Yuen as chairman of the board and CEO after five years. Yuen accepted the unusual proviso of the merger agreement on the condition that he would receive a huge severance payment if the board dismissed him.Following the merger of Gemstar and TV Guide International, Yuens preoccupation with the Interactive Platform Sector at the expense of the Media and Services Sector angered and frustrated Murdoch. The business operations embedded in the Media and Services Sector had been consistently profitable for decades due to TV Guides popularity. However, during the first two years Yuen oversaw GTGIs operations, TV Guides circulation dropped dramatically. TV Guides sharp drop in advertising revenues due to its declining circulation was the principal factor responsible for the large loss GTGI reported for fiscal 2001.By early 2002, Murdoch was pressuring Yuen to resign as GTGIs CEO. Yuen resisted that pressure. When Murdoch initiated weekly management meetings to address the companys declining health, Yuen often skipped them. When he did attend, Yuen typically refused to participate, choosing instead to carry on conversations in Cantonese with his longtime confidante, Elsie Leung, GTGIs chief financial officer (CFO). As GTGIs financial condition continued to deteriorate, Yuen became increasingly abrupt and secretive, further undercutting his ability to work with Murdoch and key company executives. Years later, his personal attorney defended Yuens management style, while admitting his interpersonal skills, a skill set so critical to top corporate executives, were subpar: I would not say of Henry that sweetness and diplomacy were his strong suit.
Re-Re-Restatements
In April 2002, Henry Yuen and GTGI faced a major crisis when financial analysts questioned the companys revenue recognition policies. Two suspect accounting decisions documented in GTGIs 2001 Form 10-K had kept the companys operating results for that year from being more dismal than reported. Those decisions involved $100 million of disputed licensing fees revenue and $20 million of revenue from an unusual barter transaction. The controversy ignited by those items caused several investment ratings services to downgrade GTGIs stock, which, in turn, caused the stocks price to plunge more than 40 percent in one day.In an interview a few days later with a USA Today reporter, Yuen dismissed the concern over GTGIs revenue recognition policies by pointing out that the companys auditor, KPMG, had no problem with the accounting. Another source reinforced Yuens position by noting that KPMG had blessed the companys revenue numbers. Two months later, in June 2002, Business Week revealed that Rupert Murdoch had forced Yuen to highlight the two questionable accounting decisions in GTGIs 2001 Form 10-K despite KPMG having approved them.Shortly after the release of the audit committee report, Henry Yuen resigned as CEO and was replaced by one of Rupert Murdochs top subordinates. A few weeks later, GTGI dismissed KPMG and retained Ernst & Young as its audit firm; at the same time, the company announced a planned financial restatement. In fact, GTGI would issue multiple restatements. Those restatements reduced the companys revenues for 1999-2001 by $250 million and increased the companys losses for that period by nearly $200 million.In June 2003, the SEC filed securities fraud charges against Henry Yuen and Elise Leung for misrepresenting GTGIs financial statements. The SEC also charged the company, as a separate entity, with releasing misleading financial statements. In June 2004, the SEC settled the charges pending against GTGI by fining the company $10 million and permanently enjoining it from future violations of federal securities laws. In the settlement agreement, the SEC disclosed a series of accounting gimmicks GTGI had used to distort its financial statements, each of which involved intentional misapplication of the revenue recognition principle.The methods GTGI used to inflate its operating results included recognizing revenue under expired, disputed, or non-existent contracts. The company also accelerated revenue recognized under certain long-term contracts and improperly recorded revenue for large non-monetary and barter transactions. Finally, the SEC reported that GTGI had diverted revenues earned by its other two divisions to the highly touted Interactive Platform Sector.
Repeated Audit Failures
The SEC issued multiple enforcement and litigation releases addressing the GTGI accounting fraud. One of those releases analyzed the repeated audit failures of KPMG, which had issued unqualified audit opinions on the companys annual financial statements during the course of the fraud. The SECs criticism of KPMG focused on three facets of the firms audits.According to the SEC, the GTGI audit engagement team should have consulted with KPMGs technical staff in the firms headquarters office when the auditors uncovered suspicious transactions recorded by the client. Such consultation would have allowed the auditors to obtain a more thorough understanding of those transactions and potentially resulted in KPMG discovering their fraudulent nature. Although KPMG had a consultation policy at the time, the SEC suggested the policy was not sufficiently rigorous.The SEC also faulted the materiality determinations made by the GTGI audit engagement team. Henry Yuens effort to embellish the Interactive Platform Sectors operating results was a key feature of the GTGI fraud. According to the SEC, the GTGI auditors should have been aware of that divisions disproportionate importance to not only Yuen but also to financial analysts and other parties tracking the companys financial performance. Because the KPMG auditors relied on conventional quantitative measures of materiality, they failed to adequately investigate the relatively nominal operating results of the Interactive Platform Sector. the KPMG auditors unreasonably determined that the [Interactive Platform Sector] revenues were immaterial to Gemstars financial statements. The KPMG auditors materiality determinations were unreasonable in that they only considered quantitative materiality (i.e., that the amount of revenue was not a large percentage of Gemstars consolidated financial results) and failed to also consider qualitative materiality (i.e., that the revenue related to business lines that were closely watched by securities analysts and had a material effect on the valuation of Gemstar stock).
Disputed Scientific-Atlanta Revenue
Scientific-Atlanta manufactures equipment used by Internet service providers, cable TV networks, and other telecommunications companies. Prior to the merger with TV Guide International, Gemstar had a three-year licensing agreement with Scientific-Atlanta that allowed the company to use certain patented technologies controlled by Gemstar. The agreement expired in 1999 and was not renewed. A few months later, Gemstar sued Scientific-Atlanta. The lawsuit charged Scientific-Atlanta with infringing on patented technologies that were Gemstars exclusive intellectual property.During this ongoing litigation, Gemstar continued to record licensing revenue from Scientific-Atlanta as if it still had a contractual relationship with the company. Following the 2000 merger with TV Guide, GTGIs accounting staff did the same. From early 2000 through the first quarter of fiscal 2002, GTGI recorded more than $100 million of disputed licensing revenue from Scientific-Atlanta.The SEC ruled there was no defensible basis for Gemstar/GTGI to record revenue from Scientific-Atlanta after the contract with the company had expired. The federal agency identified the following four conditions supporting its ruling. 1)GTGI did not have a current contract with Scientific-Atlanta; 2)GTGI did not receive any payments of the disputed revenues; 3)Scientific-Atlanta was insisting that it did not owe the revenues to GTGI; and, 4)any subsequent receipt of the disputed revenues by GTGI was contingent on a favorable outcome to the litigation between it and Scientific-Atlanta.Because KPMG knew or reasonably should have known of these conditions, the auditors should have contested their clients decision to record the Scientific-Atlanta revenue.
Licensing Agreement with AOL
In 2000, AOL paid GTGI a nonrefundable fee of $23.5 million in exchange for an eight-year license on a patented technology controlled by GTGI. The agreement between the two companies required GTGI to provide AOL with technical assistance and support over the entire eight-year term of the contract. Despite these contractual terms, GTGI management convinced the KPMG auditors that the $23.5 million fee was for transfer of the license and for 12 months of technical assistance and engineering support. The KPMG auditors unreasonably failed to exercise professional care and skepticism in reviewing the [AOL-GTGI] contract and in testing Gemstars representations regarding the purpose of the upfront nonrefundable fee. If the auditors had properly investigated the contract, they would have determined the $23.5 million fee should have been prorated for revenue recognition purposes over the contracts eight-year term.
Improper Recording of Revenue from Barter Transaction
In fiscal 2001, GTGI acquired intellectual property from another company, Fantasy Sports. In exchange for that property, which was supposedly worth $20.75 million, GTGI gave Fantasy Sports $750,000 cash and $20 million of future advertising credits. Fantasy Sports used these advertising credits during fiscal 2001, which produced $20 million of advertising revenue for the Interactive Platform Sector that period. The SEC faulted KPMG for not recognizing that GTGI had insufficient stand-alone IPG [Interactive Program Guide] advertising revenue to provide a basis on which to fair value the $20 million of advertising credits.
Improper Recording of Revenue from Multiple-Element Transactions
During 2001, GTGI engaged in large multiple-element revenue transactions with Motorola, Inc., a manufacturer of various electronic products, and the Tribune Company, a broadcasting company. In each of these transactions, Motorola and the Tribune Company purchased assets from GTGIs Media and Services Sector. GTGI executives negotiated payment terms for the transactions requiring Motorola and the Tribune Company to purchase large amounts of advertising from the Interactive Platform Sector. Collectively, those payment terms produced more than $100 million of advertising revenues for that division.GTGIs business segment disclosures in the notes to its audited financial statements did not reveal that a material portion of the Interactive Platform Sectors revenues resulted from the two multiple-element transactions. In fact, GTGI structured the Motorola and Tribune Company transactions to divert disproportionate amounts of the revenues from them to the Interactive Platform Sector and took explicit steps to conceal this fact from the public and other parties. In the case of the Tribune Company transaction, for example, a GTGI executive threatened to cancel the deal if Tribunes management insisted on complete disclosure of its terms.Similar to the Fantasy Sports transaction, the SEC criticized KPMG for not collecting sufficient competent evidence to substantiate the fair value of the advertising revenues that the Motorola and Tribune Company transactions produced for the Interactive Platform Sector. Instead, KPMG accepted managements representations that those revenues were determined on an arms length basis. The SEC also criticized KPMG for failing to persuade GTGI to disclose that a major portion of the revenues reported by the Interactive Platform Sector was attributable to multiple-element transactions.After reviewing these and similar GTGI revenue transactions audited by KPMG, the SEC ruled the firm had failed to comply with generally accepted auditing standards. This lack of compliance had been manifested in the following ways: 1)Failure to exercise professional care and skepticism, failure to obtain sufficient competent evidential matter, and over-reliance on management representations. 2)Failure to take appropriate action to correct disclosure that did not comply with GAAP and/or was not consistent with GTGIs financial statements. 3)Failure to render accurate reports.
In June 2004, the SEC and KPMG reached an agreement to resolve the allegations that the firms GTGI audits had been deficient. KPMG agreed to pay a $10 million fine, which at the time was the largest fine ever imposed on an audit firm by the SEC. The SEC also censured KPMG and issued SEC practice suspensions of varying lengths to four of the firms GTGI auditors. Those individuals included the engagement audit partner, co-engagement audit partner, review partner, and senior audit manager for one or more of the relevant GTGI audits.In February 2006, Elsie Leung, GTGIs former CFO, agreed to pay $1.3 million to settle pending SEC charges that she had participated in the fraudulent scheme to misrepresent GTGIs financial statements. The SEC also permanently barred Leung from serving as an officer or director of a public company.After a three-year court battle that ended in March 2006, a federal judge found Henry Yuen guilty of securities fraud, falsifying GTGIs accounting records, and lying to his former companys independent auditors. The judge required Yuen to pay the victims of the accounting fraud $22.3 million and permanently barred him from serving as an officer or director of a public company. In May 2007, the SEC asked the judge to hold Yuen in contempt and jail him for not having made the mandated payment. The judge denied the SECs request and granted Yuen additional time to pay the reparations.One year later, in May 2008, a federal prosecutor filed obstruction of justice charges against Yuen for allegedly destroying documents subpoenaed by the SEC. When Yuen failed to turn himself in to be arraigned on those charges, he was declared a fugitive from justice. Federal law enforcement authorities have yet to find Yuenhe is assumed to be in hiding outside the United States.In December 2007, Macrovision Corporation purchased GTGI for $2.8 billion, which was a small fraction of the companys market value shortly after the merger with TV Guide International. Ten months later, Macrovision sold GTGIs former TV Guide division for the token amount of $1 to a private equity fundto sweeten the deal, Macrovision provided a large, low-interest loan to the buyer. By 2020, TV Guides paid circulation had dropped to fewer than 2 million subscribers, down from its high-water mark of 20 million subscribers a few decades earlier.Yuens much-hyped IPG technology never lived up to its great expectations, at least from a money-making point of view. The broadcasting and electronic communications industries have made extensive use of much of that technology. Nevertheless, legal and technical complexities have largely prevented companies holding the relevant patents from effectively monetizing their ownership interests in the IPG technology.
Questions
1. Do you agree with Henry Yuens assertion that a businessperson who is complying with all applicable laws and regulations is, by definition, behaving ethically? Defend your answer.2. The newly-created Interactive Platform Sector played an important role in the business model developed by Henry Yuen for his company following the merger that established GTGI. How should a major revision of an audit clients business model impact subsequent audits of the company? What responsibility do auditors have, if any, to consider the viability of new and untested business segments created by an audit client?3. The SEC criticized KPMG for relying on conventional quantitative measures in arriving at materiality judgments while ignoring important qualitative issues relevant to those judgments. When should auditors rely more heavily on quantitative measures than qualitative issues in making materiality judgments? When should auditors rely more heavily on qualitative issues than quantitative measures in making materiality judgments? Explain.4. The SEC charged KPMG with repeated audit failures in this case. Identify general conditions, specific circumstances, and other factors that are common causes of, or, at a minimum, commonly associated with audit failures. What quality control mechanisms can audit firms implement to minimize the likelihood of audit failures?5. The GTGI accounting fraud took place well before the Financial Accounting Standards Board issued Accounting Standards Update (ASU) No. 2014-9, Revenue from Contracts with Customers (Topic 606), in May 2014. Identify the core revenue recognition principle discussed in that document and the five steps organizations should follow in applying that principle. Assume now that ASU No. 2014-9 was in effect during the timeframe of the GTGI accounting fraud. Explain how GTGIs accounting for the following transactions was inconsistent with one or more of the five steps that should be invoked in applying the core revenue recognition principle: licensing agreement with Scientific-Atlanta, licensing agreement with AOL, barter transaction with Fantasy Sports, and the multiple-element transactions with Motorola and Tribune Company.