Corporate Governance, Credit Risk and Legal Reasoning - The Case of Encompass Services Inc.

Abstract

There has been substantial activity and discussion in the public and private sectors about corporate accountability and the quality of corporate disclosure. These issues have had substantial impact on many US companies, Japanese banks and European companies, particularly those that grew through mergers and acquisitions. Many companies have had to restate their financial statements. Service companies and technology companies now account for a substantial portion of the US economy and many modern economies. The growth of this type of entity (particularly by mergers and acquisitions) presents numerous public policy, legal, regulatory and accounting issues. Some of these companies have substantial intangible assets, the accounting for M&A and investments can be manipulated to affect reported assets and earnings. The exchange of securities and conflicts of interest inherent in such transactions can affect financial statements - all of these factors can distort strategic planning, legal analysis, performance analysis and credit analysis. Fraudulent conveyance has typically not been considered in detail in many real life transactions (processed by law firms, the SEC, accounting firms and banks), and in published materials on corporate transactions, even though fraudulent conveyance is the major means of unfair and illegal wealth transfer and fraud in corporate transactions. This paper highlights some of these issues, and illustrates the role and benefits of proper legal analysis in corporate transactions, and the convergence of corporate financial analysis and legal analysis and tax/accounting analysis. This paper also presents reasons for changes in the disclosure and accounting requirements for intangible assets, regulatory approval processes for M&A and recapitalizations, and accounting for mergers and acquisitions. All financial data is as of April 2000.