On September 3, 2021, the United States Securities and Exchange Commission (the “SEC” or the “Plaintiff”), represented by James Patrick Connor, attorney at SEC’s DC regional office, filed a civil enforcement action against Klaus Hofmann (“Hofmann” or the “Defendant”), seeking injunctive relief along with payment of civil monetary penalties for the alleged misconduct on part of the Defendant. This case was filed in the U.S. District Court in the Southern District of New York.
In the complaint Plaintiff alleged that, “This action concerns a multi-year expense management scheme by Kraft Heinz Company (“KHC”)’s procurement division to improperly reduce KHC’s cost of goods sold and achieve costs savings targets that were externally touted to the market and internally tied to performance-based targets. The misconduct resulted in KHC reporting inflated earnings before interest, taxes, depreciation and amortization (“EBITDA”), a key performance metric for investors. Specifically, from the fourth quarter of 2015 through the end of 2018 (the “Relevant Period”), procurement employees negotiated agreements with numerous suppliers to obtain upfront cash payments and discounts, in exchange for future commitments to be undertaken by KHC, while improperly documenting the agreements in ways that caused the company to prematurely and improperly recognize the expense savings.”
Plaintiff further alleged that, “Procurement division employees, however, negotiated and maintained false and misleading supplier contracts that made it appear as if expense savings were provided in exchange for past or same-year actions performed by KHC when, in reality, they were upfront payments in exchange for a future benefit from KHC, in order to improperly recognize costs savings prematurely. Over the Relevant Period, KHC entered into approximately 59 transactions which were improperly recognized as a result of the false and misleading documentation negotiated and generated by procurement division employees.”
Plaintiff also alleged that, “These misleading transactions, along with numerous other misstated accounting entries, led KHC, in June 2019, to restate its financial statements in its annual report on Form 10- K filed with the SEC. Hofmann, KHC’s Chief Procurement Officer during the Relevant Period, managed the procurement division and was responsible for, among other things, approving certain of KHC’s contracts with suppliers. Despite numerous warning signs that should have alerted Hofmann that KHC procurement division employees were circumventing KHC’s internal controls in order to achieve artificial cost savings targets in supplier contracts, Hofmann negligently approved and failed to prevent supplier contracts that masked the true nature of the transactions.”
There are four claims for relief laid down by Plaintiff. The first claim for relief deals with the alleged violations of Sections 17(a)(2) and 17(a)(3) of the Securities Act. The second claim for relief deals with the alleged violations of Rule 13b2-1 of the Securities Exchange Act. The third claim for relief deals with the alleged violations of Rules 13b2-2 of the Securities Exchange Act. The fourth claim for relief deals with the alleged violations of Section 13(b)(5) of the Securities Exchange Act.
In the prayer for relief, Plaintiff has requested the court to permanently restrain and enjoin Hofmann from violating the federal securities laws alleged in the complaint, order Hofmann to pay civil monetary penalties pursuant to Section 21(d)(3) of the Exchange Act [15 U.S.C. § 78u(d)(3)] and Section 20(d) of the Securities Act [15 U.S.C. § 77t(d)], and order that Hofmann be barred from acting as an officer or director of any public company.
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Pending - Other Pending
U.S. Securities and Exchange Commission
James Patrick Connor
Attorney at U.S. Securities and Exchange Commission (DC)
100 F Street, Ne
Washington, DC 20549
Text of Proposed Order
Certificate of Good Standing (VA)
Certificate of Good Standing (DC)
(#2) CIVIL COVER SHEET filed..(Connor, James) (Entered: 09/03/2021)
(#1) COMPLAINT against Klaus Hofmann. Document filed by U.S. Securities and Exchange Commission..(Connor, James) (Entered: 09/03/2021)
Docket(#3) MOTION for James Patrick Connor to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by U.S. Securities and Exchange Commission. (Attachments: #1 Affidavit, #2 Certificate of Good Standing (DC), #3 Certificate of Good Standing (VA), #4 Text of Proposed Order).(Connor, James) (Entered: 09/03/2021)Read MoreRead Less
Docket(#2) CIVIL COVER SHEET filed..(Connor, James) (Entered: 09/03/2021)Read MoreRead Less
Docket(#1) COMPLAINT against Klaus Hofmann. Document filed by U.S. Securities and Exchange Commission..(Connor, James) (Entered: 09/03/2021)Read MoreRead Less
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