What is Securities Fraud?
Securities fraud takes a variety of forms. All dishonest actions on the part of publicly traded corporations can cause their investors serious financial harm. When the market reacts negatively to news of wrongdoing, share prices decrease, and investors lose money.
Merge Healthcare’s Falsified Contracts and Overstated Figures
On January 8, 2014, MRGE issued a corrective disclosure (PDF) confessing that the company had “falsified the existence or amount of certain customer contracts.” This is the second time Merge Healthcare has had problems with ethics. In 2009, the SEC charged two former senior executives with accounting fraud, in a scandal that caused the stock price to plummet.
What does this Mean?
Investors who have suffered financial losses because of the recent Merge Healthcare ethics issues may have claims under The Securities Exchange Act of 1933 (PDF) (also known as the “Truth in Securities Act“).
Background Information about MRGE
- Website: www.merge.com
- Telephone: (312) 565-6868
- Merge Healthcare Inc. is a Delaware corporation with its principal executive offices located at 350 North Orleans Street, 1st Floor, Chicago, Illinois 60654.
- Merge is a provider of clinical systems and innovations. Merge claims that the Company’s enterprise and cloud-based solutions for image intensive specialties provide access to any image, anywhere, any time. Merge also provides clinical trials software and other health data and analytics solutions that engage consumers in their personal health.
- Justin C. Dearborn is the CEO, Director, Chief Executive Officer of Merge DNA & Merge Healthcare
- “Merge Healthcare Incorporated develops software solutions that facilitate the sharing of images to create an electronic healthcare experience for patients and physicians worldwide. It operates in two segments, Merge Healthcare and Merge DNA. The company offers iConnect, an image interoperability and connectivity platform that enables hospitals, imaging centers, integrated delivery networks, and health information exchanges to create information exchanges within their environments and with other entities.” (Bloomberg)
- “Year over year, Merge Healthcare Incorporated has seen revenues fall from $248.9M USD to $231.7M USD. This along with an increase in the cost of goods sold expense has led to a reduction in the bottom line from a loss of $28.8M USD to an even larger loss of $39.0M USD” (Id.)
- In MRGE’s 2013 4th Quarter Earnings Call, Justin Dearborn said, “…we discovered in Q4 that a former Merge eClinical sales employee had falsified certain customer contracts. We immediately performed an internal investigation and then engaged both outside legal counsel and a forensic accounting firm to conduct an independent investigation. Both investigations concluded that the illicit activity was isolated to this one individual, and we referred the matter to the U.S. Attorney’s Office for criminal prosecution.” He also said, “Simply put, we do not believe these allegations have any merit. In this instance, Merge was the victim.”
- According to a class action complaint,
- “On January 8, 2014, the Company disclosed that it was revising its previously reported subscription backlog totals after an internal review concluded that a former sales employee in its eClinical business had falsified the existence or amount of certain customerc ontracts with an apparent value of approximately $5.8 million and $9.4 million in 2012 and 2013,respectively,” and
- “On this news, shares of the Company declined $0.21 per share, or 8.33%, to close on January 8, 2014, at $2.31 per share, on unusually heavy volume, and further declined by asmuch as an additional $0.21 per share, or approximately 9%, on January 9, 2014.
- Form 10K (PDF)
- Form 10Q (PDF)
- Merge Healthcare says ex-employee fabricated contracts (Reuters)
- SEC Charges Former Executives Of Medical Software Provider With Accounting Fraud (Sec.gov)
- SEC charges Merge Healthcare Incorporated, Richard linden, and Scott Veech in connection with accounting fraud(PDF)
- Merge prepares to defend itself against fake contract lawsuits (FierceBiotechIT)
The Corrective Disclosure Press Release
The press release is pasted below in its entirety:
Merge Revises Previously Announced Subscription Backlog Totals
No Impact on Historical Financial Results eClinical Business Unit Continues Strong Growth
Chicago, IL, 08 Jan 2014
Merge Healthcare Incorporated (NASDAQ: MRGE), a leading provider of clinical systems and innovations that seek to transform healthcare, recently learned through an internal review that a former sales employee in its eClinical business had falsified the existence or amount of certain customer contracts. Because the company did not, and will not, invoice the customers with respect to the falsified contracts or recognize any revenue with respect to those contracts, this issue will not adversely affect any of the company’s previously reported GAAP revenue results for any period. Accordingly, no restatement of any of the company’s prior financial statements is necessary or will be made.
The company is, however, reducing its previously-announced non-GAAP subscription backlog totals for the Merge DNA segment for the quarterly periods ended June 30, 2012 through September 30, 2013, as follows:
|(amount in thousands)|
|June 30, 2012||September 30, 2012||December 31, 2012||March 31, 2013||June 30, 2013||September 30, 2013|
|Previously Announced DNA Subscription Backlog||$22,213||$29,453||$34,917||$40,943||$50,409||$56,370|
|Falsified Bookings in Quarter||$277||$172||$5,360||$2,864||$4,304||$2,174|
|Cumulative Falsified Bookings||$277||$449||$5,809||$8,673||$12,977||$15,151|
|Revised DNA Subscription Backlog at Quarter End||$21,936||$29,004||$29,108||$32,270||$37,432||$41,219|
After initially identifying the issue, the company’s senior management conducted a preliminary internal investigation and reported its findings to the Audit Committee of the company’s Board of Directors. The Audit Committee then authorized an independent investigation by outside counsel, Jenner & Block LLP, and Alvarez & Marsal Global Forensic and Dispute Services, LLC, a forensic accounting firm. The independent investigation concluded that the former employee had falsified contracts with an apparent value of approximately $5.8 million and $9.4 million in 2012 and 2013, respectively. These amounts were included in the company’s previously-announced subscription backlog total during those years, but none of the falsified contracts had resulted in the company’s recognition of revenue. The independent investigation did not find any evidence that other company employees had participated in, or were aware of, this improper conduct.
The former employee has acknowledged that contracts in question were not valid and has made an offer of restitution. The company believes that the individual, who resigned in September 2013, falsified these contracts in order to achieve sales quotas and receive additional commissions totaling approximately $250,000. The company has referred the matter to the U.S. Attorney’s Office for the Northern District of Illinois and is considering other appropriate legal action. The Audit Committee’s independent investigation has ended.
For calendar year 2013, and prior to the discovery of this issue, the company had modified its compensation plans for its eClinical sales personnel from a plan that was primarily based on contract signings to one that is driven by customer invoicing and cash collections. The company’s senior management has identified, and its Board of Directors has adopted, other modifications to the company’s internal controls to strengthen its processes for logging customer contracts and calculating commissions for its sales personnel. While the company believes its corrective measures will significantly reduce the likelihood of similar occurrences, there can be no assurances in this regard.
Notwithstanding this issue, eClinical’s annual revenue grew by about 30% in 2013 and is expected to grow by at least another 20% in 2014. No eClinical client projects were impacted by this issue. Clients should not expect any adverse effect on eClinical’s performance under their existing contracts.
Merge is a leading provider of clinical systems and innovations that seek to transform healthcare. Merge’s enterprise and cloud-based solutions for image intensive specialties provide access to any image, anywhere, any time. Merge also provides clinical trials software and other health data and analytics solutions that engage consumers in their personal health. With solutions that are used by providers and consumers and include more than 25 years of innovation, Merge is helping to reduce costs and improve the quality of healthcare worldwide. For more information, visit merge.com.
Cautionary Notice Regarding Forward-Looking Statements
The matters discussed in this press release may include forward-looking statements, which could involve a number of risks and uncertainties including the outcome of the internal investigation and the remedial actions involving the former employee. When used in this press release, the words “will,” “believes,” “intends,” “anticipates,” “expects” and similar expressions are intended to identify forward-looking statements. Actual results could differ materially from those expressed in, or implied by, such forward-looking statements. Except as expressly required by the federal securities laws, the Company undertakes no obligation to update such factors or to publicly announce the results of any of the forward-looking statements.