SEC permanently bans BF Borgers and its owner Benjamin Borgers and fines them a combined $14 million for accounting fraud
On May 3, 2024, the Securities and Exchange Commission (the “SEC“) charged audit firm BF Borgers and Its owner, Benjamin F. Borgers (together, “Respondents”), with Massive Fraud affecting more than 1,500 SEC filings. The SEC found that Borgers committed deliberate and systemic failures to comply with Public Company Accounting Oversight Board (PCAOB) standards in its audits and reviews incorporated in more than 1,500 SEC filings from January 2021 through June 2023.
The SEC also charged the Respondents with falsely representing to their clients that the firm’s work would comply with PCAOB standards; fabricating audit documentation to make it appear that the firm’s work did comply with PCAOB standards; and falsely stating in audit reports included in more than 500 public company SEC filings that the firm’s audits complied with PCAOB standards.
According to the Order against the Respondents, from January 2021 through June 2023, BF Borgers had 350 clients who were required under the SEC’s rules and regulations to have their financial statements audited and/or reviewed by a PCAOB-registered accounting firm in accordance with PCAOB standards and to incorporate those financial statements into filings made with the SEC.
But instead of auditing those clients according to PCAOB standards, Benjamin Borgers instructed his audit staff and contractors to copy workpapers from previous engagements as the final workpapers for new engagements. Specifically, audit staff updated the balance sheet date and date of completion on the workpapers, but all of the other information indicating the substantive work done on the engagement was simply copied from the corresponding workpaper from the previous audit or quarterly review. As a result, BF Borgers’ workpapers falsely documented the performance of audit and review procedures and approvals that had not occurred, including falsely representing that both Borgers, as the engagement partner, and an EQR reviewed and approved the workpapers.
Further, BF Borgers had audit management software that permitted individuals to electronically “sign off” on workpapers. But Borgers did not use that software to sign off on workpapers. Instead, Borgers instructed a staff member to electronically sign off on all workpapers for each engagement within the firm’s audit management software. Borgers provided that staff member with usernames to create the false appearance of separate sign offs by the staff auditor, the engagement partner, and the EQR on individual workpapers. In reality, all of those sign offs were done by the same staff person within seconds of each other.
Despite this clear requirement, the Respondents failed to engage an EQR to provide a concurring review and approval on audits and reviews of financial statements incorporated in at least 1,625 Public Filings and Disclosures from January 2021 through June 2023, including 336 SEC issuer annual filings, 1,039 SEC issuer quarterly filings, 180 SEC registration statements, 45 SEC-registered broker-dealer annual filings, and 25 OTC company annual reports. Put another way, Respondents failed to engage an EQR to provide a concurring approval for at least 75% of their clients’ Public Filings and Disclosures incorporating such audits and reviews:
Further, the SEC claimed that the Respondents auto-deleted emails, tried to circumvent the auditing industry’s watchdog agency, and weren’t able to provide any proof of much of their work.
As a result of their fraudulent conduct, which the SEC described as a “sham audit mill,” the Respondents not only put investors and markets at risk but also caused public companies to incorporate non-compliant audits and reviews into more than 1,500 filings with the SEC.
To settle the SEC’s charges, BF Borgers agreed to pay a $12 million civil penalty, and Benjamin Borgers agreed to pay a $2 million civil penalty. Both Respondents also agreed to permanent suspensions from appearing and practicing before the SEC as accountants, effective immediately.
Image of Benjamin F. Borgers taken from the BF Borgers website
A significant number of issuers that have engaged BF Borgers to audit or review financial information contained in their SEC filings will be impacted by the Order. For more information about the impact those issuers now face, read here.
BF Borgers’s Absymal Record
Of course, BF Borgers has gained much popularity recently as the auditor for former President Donald Trump’s Trump Media & Technology Group Corp (DJT). But before hitting the world stage thanks to DJT, Borgers was already well known around the securities industry, and not always for positive reasons.
In recent years, Form 2 reports filed by BF Borgers showed its number of clients rose significantly without a notable increase in its staff, from approximately 72 clients in 2017 to over 170 clients in 2022.
Source ft.com
The firm’s record on PCAOB inspection reports over the past six years has been abysmal, with the PCAOB repeatedly pointing out deficiencies, poor quality controls, and poor leadership.
A 2022 Inspection Report showed a 100% deficiency rate in audits reviewed in 2022 (11 of 11), a 100% deficiency rate in audits reviewed in 2021 (11 of 11), and an 89% deficiency rate in audits reviewed in 2019 (8 of 9).
Further, the Report found that 11 of the 11 audits reviewed in 2022 had multiple deficiencies, 10 of the 11 audits reviewed in 2021 had multiple deficiencies, and 7 of the 9 audits reviewed in 2019 had multiple deficiencies.
In its 2021 Inspection Report of BF Borgers, the PCAOB reviewed 10 audits done by BF Borgers and found a 100% deficiency rate (all 10 audits had notable deficiencies).
Overall, the report was very critical of the Firm’s quality control. The PCAOB noted in the report, “The firm significantly increased its number of issuer audit clients . . . without a corresponding increase in the number of firm partners.” The PCAOB also criticized the “tone at the top” of the firm and said Borgers’ management “lacks the necessary commitment to undertake only those engagements that it can reasonably expect will be completed with professional competence”. The report concluded: “Leadership does not appear to be sufficiently balancing firm growth with ensuring audit quality.”
The 2021 Inspection Report also noted that the Firm more than doubled its number of clients from 2019 to the onset of 2021 without making proper adjustments to its staff, leading to 1 engagement partner doing 147 issuer audits, one quality reviewer doing 103 issuer audits, and another quality reviewer doing 74 issuer audits:
“The firm significantly increased its number of issuer audit clients from 80 in 2019 to 168 at the outset of the 2021 inspection (or by 110%). In accepting these new clients, the firm did not take into account the level of proficiency required for the firm’s partners in the circumstances as well as competing time demands on the partners assigned to lead and execute the audits and perform the engagement quality reviews for all of its issuer audits. For example, during the year, there was one engagement partner who was responsible for 147 issuer audits. Further, there was one engagement quality reviewer who was responsible for 103 issuer audits and another who was responsible for 74 issuer audits.”
A 2019 Inspection Report found an 89% deficiency rate (8 of the 9 audits reviewed had notable deficiencies) and was very critical of the firm’s quality controls.
A 2017 Inspection Report found a 100% deficiency rate (7 of the 7 audits had notable deficiencies), and in that report, the PCAOB found significant and material deficiencies with BF Borgers’ audit opinions and identified at least 7 audit opinions that “should not have been issued” because of BF Borgers’ “failure to obtain reasonable assurance that [it] was required to obtain[.]”
BF Borgers’s Disciplinary History
It wasn’t just the BF Borgers inspection reports that raised red flags. The firm and its owner have been linked to many disciplinary actions over the past few years.
On May 24, 2022, the PCAOB filed an Enforcement Action against Bo-Shiang Lien, CPA. According to the action, while Lien was an auditor at BF Borgers, Lien Violated PCAOB Rules and Standards in Performing the Audits of 3 Issuers between 2015 – 2018: Chineseinvestors.com, Inc, United Cannabis Corporation and China Pharma Holdings, Inc. Lien was barred from being associated with a registered public accounting firm.
On October 31, 2019, the PCAOB filed an Enforcement Action against Brady Jensen, CPA. According to the action, while Jensen was an auditor at BF Borgers, Jensen conducted deficient audits and ignored red flags and allegations of fraud in DS Healthcare Group, Inc. during 2014 – 2015. He also conducted deficient audits in 2016 for an unnamed issuer (“Issuer A”). Jensen was suspended for one year from being associated with a registered public accounting firm.
In December 2023, Canada’s audit regulator banned BF Borgers from taking on new clients north of the border after finding 19 violations of professional standards in its audits of Canadian companies.
In 2018, Borgers and his firm faced disciplinary action from the State Board of Accountancy of the State of Colorado for contracting a certified public accountant licensed in the state of South Carolina to conduct audits for BF Borgers despite the individual not being licensed in Colorado. According to the hearing documents, the Individual signed audit reports for the Firm in 2014, 2015, and 2016.
The Board imposed the following discipline against Borgers:
- A Letter of Admonition against Borgers
- A $1,000 Fine against Borgers
- A $3,000 Fine against the Firm
According to a Form 3 filed by Borgers in 2021, Borgers was also the subject of another State Board of Accountancy review regarding a complaint from an attorney regarding an Estate Tax Return prepared by a previous tax director. The Form 3 says that the case was settled, with Borgers paying a $1,150 Fine.
Recently, in March 2024, the State Board of Accountancy State of Colorado filed yet another disciplinary order against Ben Borgers (Case Nos. 2023-8630 & 2023-8632) for license law violations.
According to the Final Order from the Hearing, an independent review done by a quality public accountant (IQPA) pertaining to reports for the year ending December 31, 2021 found the following deficiencies:
- Borgers did not conduct his audits in accordance with generally accepted auditing standards (GAAS) as required by ERISA. They were also not presented in compliance with AU-C Section 703 and did not contain the required content elements and appropriate language for an auditor’s report issued as a result of an audit of financial statements.
- Borgers failed to exercise due care in the performance of professional services.
- Borgers failed to meet generally accepted accounting principles or generally accepted auditing standards in the profession.
The Board imposed the following discipline against Borgers:
- A Letter of Admonition
- A Fine of $5,000
Other Accusations
We’ve often questioned how BF Borgers could possibly conduct hundreds of audits each year with such a small staff (Borgers claims to have 50 personnel in his recent Form 2 filings). We were able to quickly find 409 different issuers for which BF Borgers claimed to have done audits over the past five years (see the list here). But we also wondered how BF Borgers could fit their staff in their small building located at 5400 W Cedar Ave, Lakewood, CO 80226.
Some comments online might provide a clue. We found more than one person who mentioned that Borgers was outsourcing work to staff in India.
This comment on Glassdoor.com, posted on August 20, 2023, by somebody from India who allegedly worked for Borgers, accuses BF Borgers of being a fraud and alleges that since 2018, Borgers has been outsourcing 100s of audits to a group of 15 people who work for BF Borgers from India. The poster further accuses Borgers of not paying his workers in India.
And a comment by Paul D. Weinberg CPA of Weinberg Partners, Ltd. on a LinkedIn post made by Stephen Foley, a writer for the Financial Times who has been covering Trump Media, specifically its auditor, BF Borgers, mentions that Borgers outsources “base line work” to India because Borgers has too many audits to be able to handle inhouse.
Now, the fraudulent accounting practices of Benjamin Borgers and his firm, BF Borgers, have caught up to Borgers in a very costly way and hurt potentially hundreds of issuers in the process. Issuers will be required to hire new auditors and have their financial statements audited by Borders re-audited if they are included in certain SEC filings. More information on the impact on issuers can be found at this link:
For further information about this securities law blog, please contact Brenda Hamilton, Securities Attorney, at 200 E. Palmetto Park Rd, Suite 103, Boca Raton, Florida, (561) 416-8956, or by email at [email protected]. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.
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Brenda Hamilton, Securities Attorney
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