More SEC Filing Delays from Dell, Apple: Will NASDAQ Respond?

As Apple and Dell continue wrestling with the dregree of false value unreported options grants gave their respective companies, both announced they would be delaying their quarterly earnings filings with the US Securities and Exchange Commission.

Having already repeatedly delayed its second quarter fiscal 2007 filing from last August, and now delaying its third quarter filing a second time (the first was last month), Dell is now entering uncharted waters for a reputed technology giant. The first threats of possible delisting of Dell stock from the NASDAQ exchange came three months ago. After Dell received its first delisting notice from the exchange, it responded with an appeal, which normally gives a company a few weeks to get its accounting together.

Dell hasn’t been completely silent about its financial status, continuing to release “preliminary financial statements” as recently as November 21. The company earned $677 million during the last fiscal quarter, on revenues of nearly $14.4 billion. But these preliminary reports can’t yet apply the numbers to Dell’s corporate history, especially now that the SEC probe has entered “formal” status, and Dell may not even know how many years worth of earnings it will need to restate.

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The problem deals with the granting of backdated options – the automatic right to purchase company stock today at yesterday’s prices – to company executives. When these grants are made, they instantly have value to the recipient, as opposed to the granting of standard options, whose paper value may be zero at least until stock values rise. Backdating options is not illegal, but failing to report their grants as charges against earnings is illegal.

If Dell is in uncharted waters, though, it’s not alone, as Apple may be sailing close by. Its first delisting notice from the NASDAQ exchange came last August. Today, Apple promised it’s working to file its 10-K report for the close of its last fiscal year, along with its 10-Q reports for the last two fiscal quarters, by December 29 – the date when the NASDAQ threatened it could make good on its delisting threat. Delisting is not like being suspended from a club for bad behavior; for a company, it means having to find some back channel for raising operating capital.

The investigation against Apple at this point has not been described as “formal,” like the one against Dell, though that state of affairs could change quickly, maybe even today. Apple has previously stated that it knows CEO Steve Jobs was not among those to whom backdated options were granted. Dell has yet to make a similar statement.

At this point, an appropriate dramatization of the two company’s situation could perhaps best be presented by Justin Long and John Hodgman standing on a white background, one saying, “Hi, I’m Apple,” and the other saying, “And I’m Dell.” Follow that with four months of silence.

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