Author(s): James J. Agar, Ewa Knapik, Dana G. McFerran, Philip J. Bach, Ziemowit T. Smulkowski Practice Area: Accounting, Corporate & Securities Published: Oct 2013 PLI Item #: 41755 CHB Spine #: B2052
Phil Bach is a Principal at a boutique consulting firm, called Top Jar, LLC, where he conducts forensic accounting engagements involving companies and federal, state and local government entities in a variety of industries and works with organizations to design, implement, and evaluate ethics and compliance programs including anti-fraud controls. He also performs internal audits and accounting investigations and has experience investigating financial statement fraud, employee misconduct issues, FCPA, embezzlements and other white collar frauds. He works with attorneys and companies providing consultation for litigation, expert testimony and has been engaged as a neutral arbitrator in financial disputes between companies. Most of his forensic accounting career has been at a “big four” accounting and consulting firm.
Prior to becoming a forensic accountant, Phil spent more than a decade at regional and smaller accounting firms in Chicago. During those years, Phil led financial statement audits, reviews and compilations in several industries and prepared tax returns for corporations, partnerships and individuals.
For the last 5 years, Phil has been a lecturer at the University of Chicago Law School where he lectures on accounting and finance.
Engagement Successes Include:
· Investigating over 50 cases of fraud and misconduct including financial accounting restatements, FCPA, embezzlements, check and wire fraud, stock options backdating, payroll fraud and expense reimbursement fraud. Several cases were successfully prosecuted with the subjects sentenced to prison.
· Testifying as both an expert and fact witness. Also acted as the lead arbitrator in several purchase price disputes. Determinations included working capital, EBITDA, inventory, accounts payable and several other areas. Testimony involved lost profits, damages calculations and theft investigation.
· Performing compliance audits and investigations related to False Claims Act, FCPA, OFAC and money laundering. Conclusion of several engagements involved assisting counsel with negotiation of settlements with the Government.
· Leading regulatory audit engagements involving government contracting and compliance. Other regulatory work involved financial institution mortgage process compliance including foreclosures. Assisted clients with self-reporting and other disclosures to regulators.
· Performing corporate governance and compliance reviews including compliance program and gap analysis. Areas of special focus include hotline programs, codes of conduct, forensic data analysis, tone at the top, and communications and training.
· Conducting risk assessments and working with internal audit teams to assist companies and organizations in managing operational, financial and strategic risk.
Jim Agar, a Director in PricewaterhouseCoopers LLP's Advisory Forensic Services practice, where serves in the leadership of the firm’s national Post-M&A Disputes practice. Mr. Agar first joined the firm in 1993; his twenty-one years of professional experience include:
Advising buyers and sellers engaged in purchase price adjustment disputes, particularly those related to earnout and GAAP-derived working capital calculations;
Assisting counsel with liability assessments and damages quantifications with respect to breach-of contract and tortious interference allegations;
Conducting internal investigations addressing alleged and suspected accounting irregularities and other potential fraud issues;
Helping targeted entities to address regulatory and criminal inquiries;
Working with trustees, receivers, and companies in reorganization in the pursuit of legal remedies; and
Performing financial statement audits of publicly-traded and privately-held companies as well as “forensic audit” (SAS 99-related) assistance, auditor malpractice defense consulting, and restatement investigations.
His clients have included numerous multi-national, national, regional, and single-office law firms and entities in such diverse industries as government, as well as publicly-traded and privately-held insurance, pharmaceuticals, energy, commercial real estate, consumer products manufacturing and distribution, and retail sales companies.
Mr. Agar is a Certified Public Accountant (CPA), licensed in Massachusetts and New York, and is a member of those states' CPA societies. Additionally, he holds the Certified in Financial Forensics (CFF) designation from American Institute of Certified Public Accountants (AICPA), of which he is also a Forensic and Valuation Services Section member; and he is a Certified Fraud Examiner (CFE) (Association of CFEs) and a Certified Insolvency and Restructuring Advisor (CIRA) (Association of Insolvency and Restructuring Advisors [AIRA]). He is also an Associate member of the American Bar Association (ABA), and serves on its Criminal Justice Section (CJS) Northeast Regional Subcommittee and is the Co-chair of the CJS’s National Forensic & Investigative Practices Committee.
Outside the profession, Mr. Agar is a 2010 and 2011 recipient of the March of Dimes Birth Defects Foundation's National President's Award. He is also an Eagle Scout and a council- and unit-level volunteer for the Boy Scouts of America.
He is a graduate of Fairfield University.
Ewa Knapik is a Director in the New York Forensics Services Practice of PricewaterhouseCoopers ("PwC") and has over 20 years of professional experience. Ms. Knapik provides specialized advisory services to attorneys and their clients and senior company management.
Ms. Knapik's area of expertise is fraud investigations, forensic accounting services, and internal controls assessments including corporate and regional policies and procedures. Ms. Knapik has managed a variety of significant international and domestic assignments covering accounting fraud, and asset misappropriation, Foreign Corrupt Practices Act (FCPA) procedures, including risk assessments, compliance, implementation and training, gap compliance reviews, investigations, remediation, third party reviews and audits, and third party pre-acquisition due diligence. She has addressed issues in approximately 20 countries in Europe, Asia-Pacific and South America.
Clients have included prominent U.S. based international companies in addition to major foreign companies listed on US stock exchanges and have spanned a variety of industries including: Oil & Gas, Aerospace & Defense, Automotive, Banking & Capital Markets, Chemical, Communications, Entertainment & Media, Financial Services, Information-Telecommunication, Insurance, Real Estate, Retail & Consumer Products, Technology, Pharmaceuticals & Life Sciences, and Wholesale & Distribution.
Ms. Knapik is a Certified Public Accountant (CPA) licensed in the State of New York and is a member of the American Institute of Certified Public Accountants (AICPA). She has an MBA Degree in Public Accounting.
Dana McFerran is a Managing Director in the Forensic practice for KPMG LLP. She has spent over sixteen years focusing on financial statement analysis, financial reporting and general fraud and misconduct investigations, Foreign Corruption Practices Act investigations and due diligence procedures, post-acquisition dispute arbitration matters, expert witness services, litigation support and damage claim analyses across all industries. Dana has conducted a wide variety of forensic accounting investigations in connection with management and Audit Committee investigations, DOJ, SEC and international enforcement proceedings. Many of these matters have also resulted in assisting clients enhance compliance programs and controls to mitigate bribery and corruption and general fraud risks. Dana spent two years in KPMG's Audit practice prior to joining the Forensic practice.
Professional and Industry Experience
Led an international team investigating allegations of FCPA violations for a global pharmaceutical company. The matter focused on payments made to HCPs, consultants, agents, third party intermediaries for their operations in the ASPAC region
Led an international team that provided pre- acquisition FCPA due diligence services for an international business outsourcing company.
Provided neutral arbitration services for technology companies involved in a multimillion dollar purchase price dispute related to post closing working capital adjustments. Nature of the disputed items related to accounts receivable, accrued expenses, payroll liabilities, deferred revenue and resolving issues with GAAP and in accordance with accounting policies and practices consistently applied.
Provided post-acquisition FCPA due diligence services for a global power and automation technologies company.
Conducted an anti-bribery and corruption risk assessment and provided recommendations for compliance monitoring techniques and processes for an international pharmacy benefit management company.
Led the reconciliation efforts and coordinated with the Corporate Trustee relative to the $20B Claims Fund and assisted in analyzing claims and other issues arising under the Oil Pollution Act of 1990 in connection with the Deepwater Horizon Incident.
Led an international investigation for a global medical device manufacturer. The matter involved allegations of earnings management, bribery and conflict of interest concerns in their European regions.
Led an international team investigating allegations of FCPA violations for a global pharmaceutical company. The matter focused on service provider, consultant and distribution arrangements and payments for their operations in Brazil, Russia and CIS countries.
Assisted the Examiner in a bankruptcy investigation conducting interviews, analyzing complex trading data, determining the adequacy of disclosures made in position reports provided to the Company’s credit facility, analyzing the flow of funds in the Company’s cash management system and reviewing trading risk management policies and procedures.
Assisted with an investigation of a large tobacco company in alleged illegal bribes made by their management to foreign government delegations in Africa.
Conducted an independent investigation on behalf of the Audit Committee for a publicly traded financial services company. The investigation resulted from allegations of a scheme that involved suspicious equipment financing loans. Led the loan file review, electronic data preservation and collection, electronic data review and assisted counsel with interviews.
Investigated allege fraudulent reporting of sales for a large electronics company. Tasks included interviewing pertinent company personnel, reviewing sales transactions for a two year period, documenting sales controls and procedures, providing recommendations to the company to help mitigate future misconduct, and reporting findings to outside counsel.
"How to Detect and Deter Fraud,” American Bar Association, New Partner and In-House Counsel Conference, March 2012
“Preventing and Detecting Fraud and Misconduct,” Pennsylvania Institute of Certified Public Accountants, Insurance Conference, November 2011
“Valuation Application and Methodologies,” Practising Law Institute, Pocket MBA – Finance for Lawyers, September 2011
Function and Specialization
Ms. McFerran specializes in providing assistance to legal counsel in the areas of accounting investigations and fraud investigations, as well as economic and accounting aspects of litigation and arbitration.
American Institute of Certified Public Accountants
Pennsylvania Institute of Certified Public Accountants
New Jersey Society of Certified Public Accountants
Finance Committee Chair and Executive Committee for the Board of Directors of the Pennsylvania Society for the Prevention of Cruelty to Animals (PSPCA)
Education, Licenses & Certifications
BA from Lafayette College
Certified Public Accountant (PA and NJ)
Certified in Financial Forensics
Ziemowit T. Smulkowski is a partner in the Tax practice at Paul Hastings LLP in the Chicago office. Mr. Smulkowski concentrates his practice in federal income tax issues related to all aspects of private equity backed investments, mergers and acquisitions, venture capital funds, real estate investments, and management compensation. He works extensively with the members of the firm’s Corporate department and its Private Equity and Mergers and Acquisitions practice groups.
Mr. Smulkowski representative transactions include acquisitions and dispositions of businesses for both financial and strategic investors, cross-border investments, and debt and equity investments in real estate joint ventures. He has also successfully represented senior and mezzanine lenders, sellers of closely held businesses, and management teams in connection with the acquisition or disposition of their employers.
Prior to joining the firm, Mr. Smulkowski worked in the Chicago offices of a multinational law firm for over twelve years and before that Coopers and Lybrand LLP (now known as PricewaterhouseCoopers).
Professional and Community Involvement
Mr. Smulkowski serves on the Board of Trustees of Holy Trinity High School
Mr. Smulkowski is a frequent speaker on tax related matters