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S.E.C. Pursues Time Warner Investigation

By DAVID D. KIRKPATRICK

Published: October 22, 2003

The Securities and Exchange Commission has subpoenaed Stephen M. Case, the former chairman of AOL Time Warner; Richard D. Parsons, the chairman and chief executive; and several other top executives for questioning as part of its investigation into the company's accounting for an advertising deal with Bertelsmann, two people involved in the investigation said yesterday.

The subpoenas demonstrate that the S.E.C. is still pursuing its investigation into the deal with Bertelsmann more than a year after the S.E.C. began a broader investigation into Time Warner's accounting.

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It has been six months since the company disclosed that the S.E.C. was questioning its accounting for $400 million in revenue recorded under the deal. Since then, Time Warner, which officially changed its name last week from AOL Time Warner, has disclosed that the S.E.C. is pressing the company to restate its past earnings to deduct a portion of the payment, but the company is defending its accounting and resisting a restatement.

Legal experts said that the questioning might indicate that the investigation into the deal was entering its final stages. The investigators stopped interviewing Bertelsmann executives, including its former chairman, Thomas Middelhoff, about the matter more than six months ago, people involved in those interviews said.

The subpoenas alone do not indicate that the S.E.C. is contemplating action against any of the people who received them, and lawyers sympathetic to Time Warner said the interviews were an inevitable part of such an investigation.

But the S.E.C.'s persistence may be troublesome for Time Warner because satisfying the commission's request to restate its past results could increase the company's vulnerability to lawsuits from shareholders angry over the company's failure to live up to its promises after America Online acquired Time Warner in January 2001. Time Warner has already reduced its reported advertising revenue by $190 million for the 21 months ended last spring, with the reduction mainly related to its AOL unit.

Issuing the subpoenas also suggests that the inquiry into this deal extends to the highest levels of the company, and that the S.E.C. has specific questions for its top executives, securities lawyers said.

"You don't seek to depose the chief executives of very big firms like Time Warner unless you have very specific questions that require their personal corroboration," said John C. Coffee Jr., a securities law professor at Columbia Law School. "You don't depose that sort of person on a general fishing expedition. It doesn't mean they will bring a case, but it means they have to resolve a very specific question about what kinds of agreements or relationships existed between the companies."

The S.E.C. may also use the questioning to put pressure on the company and its executives by looking for inconsistencies or contradictions in statements, securities lawyers said. People involved in the inquiry said the S.E.C. had subpoenaed a large group, including several top current and former executives, interviewing some as early as this week.

Spokesmen for the S.E.C. and for Time Warner declined to comment. A spokeswoman for Bertelsmann said, "Bertelsmann is not under investigation, and this is a Time Warner issue."

The payments in question evolved out of the unusually close relationship between Bertelsmann and America Online before it acquired Time Warner. In 1994, Mr. Middelhoff, then a strategic planning executive at Bertelsmann, met Mr. Case, the chairman of America Online, who persuaded Bertelsmann to invest in a joint venture in Europe. Over the next few years, the value of Internet companies like AOL soared. Mr. Case and Mr. Middelhoff became friends, communicating often by e-mail and instant messages.

The S.E.C.'s inquiry relates to a larger payment that AOL agreed to make to Bertelsmann soon before America Online completed its acquisition of Time Warner. America Online agreed to pay about $7 billion to Bertelsmann for its interest in AOL Europe. As part of revisions to that deal, which were made in 2001, Bertelsmann agreed to pay AOL Time Warner about $400 million for advertisements, mainly on the AOL Internet service. The $400 million payment was AOL's largest single advertising deal at the time, accounting for 20 percent of the Internet service's advertising and commerce revenue last year.

Executives at Bertelsmann divisions like the BMG music group or music clubs have said that they sometimes complained internally that the agreement forced them to buy online advertising from AOL at values above the market rate.

Now the S.E.C. is contending that part of the $400 million in advertising payments should have been considered a form of rebate or payback on the much larger payment for Bertelsmann's stake in AOL Europe, according to Time Warner's filings earlier this year.

Through a spokeswoman, Mr. Case, who was chairman in 2001, has said he was not involved in negotiating the revisions of the agreement. A Bertelsmann executive involved in the same negotiations said Mr. Middelhoff was not directly involved either. At the time, Mr. Parsons was co-chief operating officer in charge of divisions outside the AOL unit.

The S.E.C. and the Justice Department are also investigating other reciprocal deals involving the AOL unit. Investigators are looking into the possibility that AOL made inflated payments to business partners to get the same money back again in return, improperly increasing its reported revenue and profits in a practice known as round tripping.


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