Monsanto Company will pay an $80 million penalty and retain an independent compliance consultant to settle charges that it violated accounting rules and misstated company earnings as it pertained to its flagship product Roundup.

Three accounting and sales executives  — Sara M. Brunnquell, Anthony P. Hartke, and  Jonathan W. Nienas will also pay penalties to settle charges against them.

Monsanto was represented by David Anders of Wachtell, Lipton, Rosen & Katz in New York.

Brunnquell was represented by Jodi Misher Peikin of Morvillo Abramowitz Grand Iason & Anello in New York.

Nienas was represented by Robert Hotz Jr. of Akin Gump in New York.

And Hartke was represented by Tai Park of Park Jensen Bennett in New York.

An SEC investigation found that Monsanto had insufficient internal accounting controls to properly account for millions of dollars in rebates offered to retailers and distributors of Roundup after generic competition had undercut Monsanto’s prices and resulted in a significant loss of market share for the company.

The SEC found that Monsanto booked substantial amounts of revenue resulting from sales incentivized by the rebate programs, but failed to recognize all of the related program costs at the same time.

Monsanto materially misstated its consolidated earnings in corporate filings during a three-year period.

“Financial reporting and disclosure cases continue to be a high priority for the Commission and these charges show that corporations must be truthful in their earnings releases to investors and have sufficient internal accounting controls in place to prevent misleading statements,” said SEC Chair Mary Jo White. “This type of conduct, which fails to recognize expenses associated with rebates for a flagship product in the period in which they occurred, is the latest page from a well-worn playbook of accounting misstatements.”

SEC Enforcement Chief Andrew J. Ceresney said that “improper revenue and expense recognition practices that obscure a company’s true financial results have long been a focus of the Commission.”

“We are committed to vigorously pursuing and punishing corporate executives and other individuals whose actions contribute to the filing of inaccurate financial statements and other securities law violations,” Ceresney said.

Monsanto’s sales force began telling U.S. retailers in 2009 that if they “maximized” their Roundup purchases in the fourth quarter they could participate in a new rebate program in 2010.

Hartke developed and Brunnquell approved talking points for Monsanto’s sales force to use when encouraging retailers to take advantage of the new rebate program and purchase significant amounts of Roundup in the fourth quarter of the company’s 2009 fiscal year. Approximately one-third of its U.S. sales of Roundup for the year occurred during that quarter.

Brunnquell and Hartke, both certified public accountants, knew or should have known that the sales force used this new rebate program to incentivize sales in 2009 and Generally Accepted Accounting Principles (GAAP) required the company to record in 2009 a portion of Monsanto’s costs related to the rebate program.  But Monsanto improperly delayed recording these costs until 2010.

Monsanto also offered rebates to distributors who met agreed-upon volume targets.  However, late in the fiscal year, Monsanto reversed approximately $57.3 million of rebate costs that had been accrued under these agreements because certain distributors did not achieve their volume targets (at the urging of Monsanto).

Monsanto then created a new rebate program to allow distributors to “earn back” the rebates they failed to attain in 2009 by meeting new targets in 2010.

Under this new program, Monsanto paid $44.5 million in rebates to its two largest distributors as part of side agreements arranged by Nienas, in which they were promised late in fiscal year 2009 that they would be paid the maximum rebate amounts regardless of target performance.

Because the side agreements were reached in 2009, Monsanto was required under GAAP to record these rebates in 2009.  But the company improperly deferred recording the rebate costs until 2010.

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