SECURITIES AND EXCHANGE COMMISSION LITIGATION RELEASE NO. 14882 / April 17, 1996 Accounting and Auditing Enforcement Release No. 773 SECURITIES AND EXCHANGE COMMISSION v. STEPHEN R.B. BINGHAM, SUSAN MCKENNA GRANT, AND WILLIAM MCCLINTOCK (United States District Court for the District of Massachusetts, C.A. No. 96-10793EFH) The Securities and Exchange Commission announced that on April 16, 1996 it filed a complaint in the United States District Court for the District of Massachusetts against Stephen R. B. Bingham ("Bingham"), Susan McKenna Grant ("Grant"), and William J. McClintock ("McClintock"), former senior executives of Alias Research, Inc. ("Alias"). The complaint alleges that, under the direction of Bingham and with the participation of Grant and McClintock, Alias recognized revenue from transactions that did not meet the revenue recognition requirements of generally accepted accounting principles. One of these transactions involved a purported agreement to distribute $1.5 million of software, the fourth-largest sale ever for Alias. The complaint alleges that, at the time of the transaction, the customer did not have the ability to sell $1.5 million of Alias's products, nor the ability to pay for the software. Thus, according to the complaint, the parties understood that Alias would not receive payment for the product unless and until the products had been resold to an end user. In addition, the complaint alleges that Alias had significant continuing sales and support obligations, that no product was shipped during the quarter in which revenue was recognized, and that the size of the transactions was governed, not by the quantity of product that the customer required, but by the level of revenue needed to reach Bingham's earnings targets. With respect to the other transactions, the complaint alleges that Alias entered into agreements not to collect payment and to attempt to obtain financing for a purported purchaser that was unlikely, because of its financial condition, to obtain financing. With respect to a $1 million transaction for which Alias recognized revenue during the second quarter of fiscal 1992, the complaint alleges that an Alias executive signed a side letter which excused the purchaser from payment of $750,000 of the purchase price if the customer was not satisfied. The complaint alleges that the Defendants knew, or were reckless in not knowing, of the terms of these transactions. The complaint further alleges that, between May 31 and July 2, 1991, Bingham, Grant, and McClintock, while in possession of material, nonpublic information regarding the true nature of the company's financial condition, sold shares of Alias stock and, thereby, avoided losses of $1,713,000, $1,370,000, and $358,282, respectively. According to the complaint, as a result of the improper recognition of those transactions, Alias issued materially false and misleading financial statements for the first and second ==========================================START OF PAGE 2====== quarters of its fiscal year ended January 31, 1992. The complaint alleges that Alias overstated revenue in the first and second quarters by $1,909,000 and $1,000,000, respectively, and that Alias reported a pretax profit of $888,000 for the first quarter, when in fact Alias should have reported a loss of $906,000. In addition, the Complaint alleges that Alias reported a pretax profit of $$1,164,000 for the second quarter, when Alias should have reported income of $164,000. The complaint further alleges that the defendants caused Alias's materially false and misleading financial statements to be included in the company's Form 10-Q quarterly reports filed with the Commission and that they made repeated false statements to accountants in order to cover up their actions. The complaint charges that Bingham, Grant, and McClintock violated Section 17(a) of the Securities Act of 1933 ("Securities Act") and Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") and Rules 10b-5 and 13b2-2 thereunder, that Bingham and Grant violated, under a control person theory, Sections 13(a), 13(b)(2)(a) and 13(b)(2)(B) of the Exchange Act and Rules 13a-13 and 12b-20 thereunder, and, in addition, that Bingham and McClintock violated Section 13(b)(5) of the Exchange Act and Rule 13b2-1 thereunder. The Commission is seeking an order permanently enjoining the defendants from future violations of those provisions, requiring them to pay civil penalties and to disgorge the amount of losses avoided plus interest, and prohibiting them from serving as officers or directors of a publicly-held issuer.