Atlanta Homebuilding Executive Agrees to Return $1.4M in SEC Clawback Settlement

The chief financial officer of an Atlanta homebuilder today agreed to return $1.4 million in a clawback settlement with the U.S. Securities and Exchange Commission.

Beazer Homes USA CFO James O'Leary was not personally charged with misconduct after the company allegedly filed fraudulent financial statements during fiscal year 2006, but he's nonetheless returning his bonus compensation and stock sale profits from the period.

In March, the SEC reached a clawback settlement with Beazer CEO Ian McCarthy for $6.5 million. The company itself settled a SEC enforcement action in 2008, and the agency charged Beazer’s former chief accounting officer Michael Rand with fraud in July 2009. That litigation is ongoing.

Clawback cases remain relatively rare for the SEC. The agency was granted the authority under Section 304 of the Sarbanes-Oxley Act of 2002, which requires some senior executives to return bonuses and stock profits they received while their companies were in “material non-compliance with financial reporting requirements due to misconduct,” according to the SEC.

“Section 304 of the Sarbanes-Oxley Act encourages senior management to take affirmative steps to prevent fraudulent accounting schemes from occurring on their watch,” said Rhea Kemble Dignam, director of the SEC’s Atlanta Regional Office in a news release. “O’Leary received substantial incentive compensation and stock sale profits while Beazer was misleading investors and fraudulently overstating its income.”

O’Leary did not admit or deny SEC allegations.

Between 2002 and 2009, the SEC brought fewer than a dozen clawback cases, and each time the executive returning the money was also charged with violating securities laws.

In 2009, however, the SEC expanded its use of Section 304 when it went after $4 million in bonuses in stock profits from the former chief executive officer of CSK Auto Corp., Maynard Jenkins, who was not alleged to be involved with any underlying misconduct. The case settled in March for an undisclosed amount.

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