Considere o exemplo de uma empresa que sofreu um processo de um consumidor contra seu produto. Como a empresa sabe as informações do seu produto (e da sua má qualidade) reconhecer a chance de perda pode ser usado no julgamento pelo reclamante. Além disto, outros consumidores seriam incentivados a entrar na justiça.
O texto cita o caso da Merck e Vioxx (vide o livro de Teoria da Contabilidade, p. 169 ou postagens anteriores, aqui). Como fazer este reconhecimento, diante das constantes mudanças ocorridas ao longo do processo?
A seguir o texto completo do WSJ:
Truth in advertising: This is an editorial about the Financial Accounting Standards Board. Keep reading anyway, because as with so much else these days you could end up paying.
FASB -- the rule-setter for green-eyeshades -- wants to require companies to account for the potential cost of ongoing litigation. While FASB says this would offer more transparency to the investing public, the real gift is to the trial lawyers, who will be able to use the information to extort settlements and influence jury verdicts.
Under the proposed change, a company facing a lawsuit would have to list on its financial statement its best-guess estimate of what that litigation could end up costing -- not just in attorney fees, but in any potential payout. For a company in high stakes litigation, that means showing its hand to plaintiffs attorneys, allowing them to gauge management's upper estimate of what the case is worth.
The effect will be to force corporate defendants to fight lawsuits with one hand tied behind their backs -- assuming the company can even figure the "fair value" of a lawsuit it has no idea if it will win or lose. Predicting the trajectory of complex, often multiyear litigation is inherently unscientific. As we saw with Merck and Vioxx, a company's stock price can jump or fall depending on jury verdicts whose results are impossible to predict.
Bad guesswork would also put a company at risk of more lawsuits. Estimate the possible liability too high, and the plaintiffs bar may extract more loot. Estimate too low and the company could get hit by shareholder suits questioning whether there was intent to mislead investors. Suddenly, every lawsuit against a corporation would contain its own downside and a secondary collateral risk. That gives trial lawyers added leverage to force premature settlements.
The proposed change is open for comment until tomorrow, and FASB has been getting an earful. Senior litigators from 13 companies, including Pfizer, General Electric, DuPont, Boeing and McDonald's have signed a letter to FASB Chairman Robert Herz, objecting to the plan. "Too often, lawsuits are filed for publicity or to pressure companies, only to be dropped later," they wrote, and trying to estimate the fair value of liabilities at the outset "would be both flawed and misleading."
All of which raises the question, why mess with the current system? Under existing rules, putting a number on the potential cost of a lawsuit is required only when the defendant believes it is "probable" it will lose the case. At that stage of the game, some knowledge and calculation from the trial can actually inform the judgment and provide a reasonable service to investors. Lawyers, accountants and corporations are all reasonably comfortable with the way things are.
Meantime, markets have proven to be aggressive watchdogs of litigation prospects. The mere threat of a suit can send a stock price tumbling, a tactic amply demonstrated by the plaintiffs bar in trying to extort settlements. Lawsuits are also disclosed in financial statements, just without the imaginary "fair value" number FASB now demands.
The folks at FASB are partisans of the idea that accounting can provide black and white answers. But all financial reporting is a bit of a wizard's game, trying to measure concepts that can be subjective and amorphous. By organizing a wealth transfer from corporations to trial lawyers, FASB is doing no favors to the investors it claims to represent.
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