Lynch lied about Autonomy's accounts, rages HPE to the High Court

HPE is holding fast to its claims that Autonomy executives lied during due diligence calls before the ill-fated $11bn buyout of the British software company by the American megalith in 2011. "It is no defence to a fraud claim that the victim should have discovered the truth, or even that he was careless in not doing so," said …

[Venerable and Fragrant Wind of Change]

Double negative

Some slightly-confusing wording here:

Elizabeth Harris, told the court [...] she wasn't tasked [...] something HPE hotly denies was the case.

So HPE insists KPMG was tasked to convert accounts (whatever that entails). Presumably that would be a very simple matter to establish in evidence: KPMG's role being to enumerate legumes, the issue of packaging the beans for the US market would be pretty fundamental to the contract under which they were engaged? And if that were in dispute, would that not be a matter between HPE and KPMG?

[Anonymous Coward]

Re: Double negative

Absolutely correct, though in mentioning legumes you reminded me of how after WW2, when France was very short of food, a French negotiator was tasked with buying wheat from the US.

Unfortunately in French the same word is used for wheat and corn (blé), and the translation into English used the wrong one for American English - "corn". The negotiator had a rather rough time when the shipments of sweetcorn started to arrive.

Perhaps the KPMG accountant was working to the runner standard and HPE thought they were using baked.

(As you might imagine, this little example formed part of my "French for business" class back in the days when I was trying to quadrangulate English, French, German and American - and finding that American had the most gotchas.)

[Anonymous Coward]

Re: Double negative

Unfortunately in French the same word is used for wheat and corn (blé)

?? "sweetcorn" is "maïs" (maize)

[Anonymous Coward]

Re: Double negative

You have not understood. The French did not want sweetcorn. The tender documents were in English. They translated the French word "blé" with the alternative word "corn" rather than "wheat". The Americans understood "corn" as "sweetcorn" - possibly deliberately.

Therefore your observation, though correct, is irrelevant.

[Vometia Munro]

Re: Double negative

"Corn" does seem rather ambiguous depending on the audience; I still think of it as being synonymous with wheat (and to some extent barley etc) so I still find myself scratching my head for a moment when I realise someone might be talking about sweetcorn instead. In this case I can imagine it being a genuine misunderstanding, though part of me also wonders if it might've been contrived to appear so.

[skyblue]

Re: Double negative

The ambiguity is from french "blé" to english. Interestingly Google translate also provides "corn" as the english translation from blé.

[RegGuy1]

Re: Double negative

Aren't Google American?

[disgruntled yank]

Re: Double negative

"Corn" is simply the most common grain of a country. The Corn Exchanges of England weren't markets for maize.

[Grooke]

Re: Double negative

I was today years old when I actually looked up the definition of "Corn" and learned that the way I use it is an Americanism.

[Michael Wojcik]

Re: Double negative

I can't speak to French usage, but perhaps the confusion was due to "corn" nearly always meaning maize in US English, but in British English (and historically, prior to the adoption of maize as a staple in the US) it was broadly used for a variety of grains, and even for non-grains such as salt pellets (hence "corned beef").

So perhaps a French speaker translated blé to the British English "corn" (non-specific but not incorrect), when "wheat" (specific) was wanted, and then in communicating with the US this was interpreted as maize?

Still, you'd think this would have been sorted out before shipments arrived. After all, there are a number of varieties of maize - feed, sweet (for human consumption), pop, etc - and preparations (on the cob, dried kernels, canned, masa, hominy, and so on). In working out the details it seems like the mistake would be uncovered.

[CrazyOldCatMan]

Re: Double negative

broadly used for a variety of grains

Mostly wheat if you were an aristocrat, since that was primarily eaten by the upper classes. Or barley if you were someone that actually grew it.. (barley bread and beer were consumed by the lower classes since they were cheap. The upper classes generally drank wine (well watered if you were a child).

[Dr_N]

Re: Double negative

>>Unfortunately in French the same word is used for wheat and corn (blé), and the translation into English used the wrong one for American English - "corn". The negotiator had a rather rough time when the shipments of sweetcorn started to arrive.

Interesting, as maïs (maize) is used in modern French. (Although du blé is old slang for cash ...)

Do you have a citation for that postwar negotiation story?

[Anonymous Coward]

Re: Double negative

Read the comment again, as you clearly haven't understood it at all. Nobody was interested in the French word for sweetcorn. Nobody wanted maïs. I know I don't write the best English but so far at least three people have contrived totally to misunderstand the point.

Mme. notre professeur had a brother who was fairly high up in the French government, but asking for citations for what was intended (clearly failed again) to be a humorous post, especially as it was a joke about the difference between American and British in the context, suggests that in this case at least comprehension deficit is general.

[Dr_N]

Re: Double negative

So just another urban myth then. Thanks for the clarification.

[Ian Johnston]

Re: Double negative

"Corn" always means "the most common cereal crop", so in England corn is wheat, in Scotland corn is rye, in the US corn is maize and so on.

[CrazyOldCatMan]

Re: Double negative

in Scotland corn is rye

Or oats. Which was largely unused in England except as animal feed.

[Sgt_Oddball]

Re: Double negative

When was the last time the accountants got called to account? They have good track record on these sorts of things (Greece entering the Euro anyone?)

Though I admit I would love to see them pulled over the coals at some point, I very much doubt it would change things since some other firm would just fill the vacuum left behind.

[Tom 7]

Re: Double negative

Engineers should try not to get too interested in accounting. For people who like things to add up accounting shall make ye fret.

[Anonymous Coward]

Re: Double agent

Client to accountant: what's two plus two?

Accountant to client: who wants to know?

[David 132]

Re: Double agent

Lawyer to client: How much would you like it to be?

[Cederic]

Re: Double negative

Ah, you've never experienced the raw joy of choosing how to make things add up.

Accountancy done properly _is_ engineering. Careful application of centuries of practical knowledge to create something that shouldn't be possible yet somehow stands up regardless.

Creative accountancy is fun!

[Teiwaz]

Re: Double negative

Accountancy done properly _is_ engineering. Careful application of centuries of practical knowledge to create something that shouldn't be possible yet somehow stands up regardless.

Careful now, Marketing will be claiming to be engineering too next.

instead to create something that appears solid but is mostly spit and promises

[Anonymous Coward]

Re: Double negative

The challenge for HPE with the line that KPMG failed to deliver on it's responsibilities was that the timeline provided by HP did not allow adequate due diligence (from memory, KPMG were given 6 hours to gather information) and HPE/KPMG appear to have settled on a far more limited scope than was initially agreed due to this.

If HPE now want to blame KPMG and be believed, they should have had KPMG on trial as well.

Pretending that it was other peoples fault doesn't diminish HPE's responsibility. Plus HPE's lawyers nose growing doesn't help with their case that Lynch is the liar....

[adam payne]

HPE's legal team also claimed then-Autonomy COO Andy Kanter was "struggling with questions of materiality" put to him by HP's due-dil battalion.

Surely some alarms would have be going off if this was the case?!?

HPE alleges that "far from showing that HP simply charged ahead with the acquisition instead of waiting for access to Deloitte's work papers [for more detailed auditing], the evidence shows that HP made repeated requests for such access and that Autonomy management consistently refused."

It shows exactly that, you charged ahead with the acquisition.

[Anonymous Coward]

Autonomy: It will take a month to answer these questions

KPMG: It will take 2-3 months to complete due diligence

HPE: Its gone wrong, can we make it look like we sent 1000 e-mails a day for a week so we can claim that we asked them repeatedly for this information?

[Alan Johnson]

Building on that, HPE alleges that "far from showing that HP simply charged ahead with the acquisition instead of waiting for access to Deloitte's work papers [for more detailed auditing], the evidence shows that HP made repeated requests for such access and that Autonomy management consistently refused."

If HP made repeate drequest for information which Autonomy management refused but HP Went ahead with the purcahse then this doe sindeed show that HP charged ahead without waiting for Deloittes work papers (or even report).

HP continue to amaze with their self contradictory and borderline farcical arguments.

[ecofeco]

Exactly. This was, is and continues to be HP's fault.

[Charlie Clark]

Yep, any suspicion of foul play during the due diligence should have set alarm bells ringing. This is the whole point of due diligence: companies can walk away at any time.

[Anonymous Coward]

HPE at this point reminds me of those people you hear of who buy old second hands sports cars. They notice the slight oil leak and the rattle from the transmission, but they still go ahead because they are desperate to own a Porsche/Alfa/whatever.

And then they get faced with a huge bill for major work and start complaining that the garage didn't tell them a transmission rebuild would cost thousands of pounds.

[robidy]

Next question...if we get a fuck off for asking the US to extradite killers to the UK for trial...can we trust our shiny new Gov't to return the favour when the HPE^hUS was to extradite Lynch on criminal charges to cover HP's aleged in competence?

[Gordon 10]

Hang on a sec

If Autonomy directors "blocked the due diligence" as alleged.

Why on earth did HP continue the acquisition?

I'm not a lawyer but this seems like desperate muck-raking in order to create a narrative after the fact to me.

[a_yank_lurker]

Re: Hang on a sec

If HPE can pass the buck to Autonomy they are partially shielded from being sued themselves. Otherwise, the manglement and board could nailed for failure of fiduciary trust (mismanaging the money).

[bazza]

Re: Hang on a sec

And this is very much what lies behind this case, I think. HP’s management have realised that they blew a load of money and are doing whatever they can to distract attention from that.

And the extradition request they’ve managed to get US prosecutors to issue is more of the same. We’re likely to have the unedifying prospect of Lynch being out through the wringer if the US courts when HPE have already lost the court case in the UK. Fortunately, AFAIK IANAL, statements made by HP(E) execs in the London court case can be presented as evidence for the defense in a US trial. HPE will have a hard job denying that such statements, made under oath in the UK, count for naught in a US trial. Phrases like “shit show” may we’ll come back to bite them in the rear.

Furthermore (AFAIK IANAL), if shareholders do ultimately end up suing HP(E) board members, their sworn evidence given in the London case can be used against them.

[a pressbutton]

fiduciary trust

To be completely safe from fiduciary trust attacks HPE need to show not that Autonomy & KPMG were asked for relevant numbers and they didnt provide / said they couldnt in the timescale

but something rather stronger

They need to show $other_party lied to HPE.

I think this is the core driver for the case here. We thought this court case was expensive - wait for the US shareholder suits.

Not looking too good for HPE right now.

[Anonymous Coward]

Re: Hang on a sec

"If Autonomy directors "blocked the due diligence" as alleged.

Why on earth did HP continue the acquisition?"

HPE are conveniently ignoring the HP boards willingness to push through the deal in-spite of HP staff saying they had overvalued Autonomy (from the testimony of the HP CFO Catherine Lesjak) and cutting them out of the negotiations.

HP's argument for completing the deal quickly was that Oracle were going to put in a counter-offer but HP presented no evidence of that. So again, that's an HP issue, not an Autonomy issue.

[Anonymous Coward]

Re: Hang on a sec

I am surprised that Larry didn't make a statement that the Oracle counter-offer was $5000 to cover cleaning the offices before they moved in.

[oiseau]

Due dilligence

Hello:

All this HPE thing is getting old and at the same time remains (to a point) rather interesting.

Although the judge is probably getting fed up.

It would seem to me that it's all quite simple:

1. a multibillion dollar company decides to put up a cool 10.3 US$ billion of its shareholder's money to buy another company.

2. it looks closely at the company's books and asks all the relevant questions, getting the right answers so as to be able to close the deal.

3. after closing the deal and then further committing to it, decides that it had paid a tad too much.

4. as a result of this new assesment, it writes-down 8.8 US$ billion (~ 85.5%) of the price paid.

5. decides to sue the people in charge of the company it bought with the purpose of making them responsible of a 8.8 US$ billion fuck-up.

In my opinion, you do not fling 10.3 US$ billion unless you have all (ie: absolutely all) your questions answered to your satisfaction.

Asked all the relevant questions?

Yes?

Got the right answers?

No?

Then you do not proceed any further.

Whatever happened to due dilligence?

These DHs at HP jumped into the deal without looking properly (or maybe worse) and now want/need a scapegoat.

Not much more to it.

O.

[Roland6]

Re: Due dilligence

>2. it looks closely at the company's books and asks all the relevant questions, getting the right answers so as to be able to close the deal.

From previous articles (although it might not have been this specific trial) it would seem this step was skipped. Key decision makers on HPE's board told the Judge that they hadn't actually looked at (Autonomy's) books in any real detail or read the due diligence reports and summaries they had KPMG prepare...

So this case is sounding more like trying to take Camelot to court because the Lucky Dip lottery ticket you purchased didn't win a prize.

[Anonymous Coward]

Re: Due dilligence

"So this case is sounding more like trying to take Camelot to court because the Lucky Dip lottery ticket you purchased didn't win a prize."

And don't forget that the value was written down because "synergies" were not possible because Autonomy were already selling servers to some customers in-spite of being a "pure software play".

HP's words, not mine. If only there was some way of checking these facts before proceeding with an acquisition.

[Doctor Syntax]

Re: Due dilligence

"So this case is sounding more like trying to take Camelot to court because the Lucky Dip lottery ticket you purchased didn't win a prize."

The best one-line summary of the case to date. Nice one.

[Anonymous Coward]

Re: Due dilligence

Isn't the due diligence report - and Autonomy's alleged failure to respond for info for said report - a moot point since Leo didn't read the due diligence in any case? HP/Leo/Ray Lane were fully intent on spunking $10bn up the wall for Autonomy without or with an unread due diligence report. Well done Leo & Ray you complete and utter fucktards.

[G R Goslin]

Didn't that used to be.......

....called Caveat Emptor? If the buyer is unsatisfied, all he has to do is walk away. Greed will always outbid common sense.

[Vometia Munro]

Re: Didn't that used to be.......

It'd be hilarious if the judge summed up the entire case as such.

[eionmac]

Re: Didn't that used to be.......

Interesting. When selling to 'foreign powers', I tabled ("gave to them") a strict list of things they understood before I would sign any contract after negotiations were complete. The list was always also inside the signed text.

First item. The buyer must act understanding the term "Caveat Emptor" [ Let the buyer beware1] applies to all texts both before and after signature.

Second item. Only the jointly signed text in British English is valid.

Meanings are as used in England below the line from Bristol to The Wash.

[For USA folk this excludes all Scots English meanings, Yorkshire idioms etc]

All other texts, translations, and / or notes or personal records are invalid.

Third item. All delivery dates or production times are an 'estimate' and not a contractual committent.

[RyszrdG]

Caveat Emptor

If in doubt HPE should have walked away or at the very least made the exceptions contractual dependencies. HPE were either complacent or greedy when Autonomy allegedly failed to disclose requested information and should be at least considered partly responsible for the outcome.

[Charlie Clark]

Re: Caveat Emptor

Just to be clear: caveat emptor is no defence in cases of fraud*, which is probably why HPE is trying this on. However, the whole idea of due diligence is to provide the purchaser with the necessary tools and resources to uncover any such practices.

* Hence lots of consumer protection legislation expressly designed to protect purchasers. But then buying a software company cannot really be compared to buying a child's toy. I guess the closest parallel is probably buying a house and deciding whether to get a survey done or not. Even the best survey won't necessarily protect you from all risks, especially if the seller refuses to disclose them. But the first port of call for regress would normally be with the surveyor, who has to have professional insurance as a result.

In this case then HPE either has to demonstrate negligence on the part of KPMG or that Autonomy deliberately prevented KPMG from doing its job, in which case the sale should have fallen through. That they haven't gone after KPMG is hardly a resounding endorsement of the strategy and, hence, of their corporate governance. The fear of being gazumped encouraged them to rush the deal through against better sense and even, IIRC, the advice of KPMG.

[Trollslayer]

Not the first time

Let's just say a corporation I worked for bought a division on another corporation then discovered the seals figures for that division were, well, lies.

Everything was signed but the sales figures had been accepted and signed off.

[Steve K]

Re: Not the first time

Aha - seal lyin’

[Anonymous Coward]

Fraud

HPE claimed Autonomy was worth $11bn based on synergies with its existing business. Neither Autonomy or the market was required to prove these synergies existed and this immediately reduces the actual value of Autonomy from what HPE paid to the market value (i.e. ~US7bn) as this is HPE's failure to deliver projected benefits from the acquisition and not fraud. Meg and the rest of the board didn't like this approach and hence went digging for "accounting irregulaties" to cover this up.

HPE haven't gone after the accountants because the audited accounts are either significantly accurate (i.e. Deloitte audited accounts upto 2010) AND the fraud appears to have occured in the US between the time the 2010 accounts were completed and the acquisition in 2011. I note that a Deloitte partner was reported to be "too close" to Autonomy's board and failed to provide adequate oversight, but I can't find any fines/etc that resulted from this against the partner or Deloitte - the partner in question was also only present from late-2010 onwards.

HPE's star witness is Egan, the former Autonomy head of sales. Conveniently, all of the fraud HP allege appears to have occurred under Egan and Egan is testifying for HPE. HPE's evidence that Lynch was aware of the US deals in question appears to be based on a small number of e-mails sent from Egan to Lynch and Hussain. I am not disputing this evidence, but it appears to point to Egan being the fraudster rather than Lynch - Deloitte, Lynch and Hussain would be responsible if there were audited 2011 accounts but there weren't and Hussain has been convicted of wire fraud for sending e-mails with Autonomy's accounting numbers to HPE which is dubious at best. HPE's decision to not get KPMG to complete due diligence at this point also suggests some culpability for any lack of knowledge of fraud on HPE's part

In Lynch's defence, the 2011 numbers were affected by two large acquisitions that were still being integrated according to the limited information produced by KPMG. While this doesn't absolve him or Hussain of guilt, it does make presenting a "fair and accurate picture" more difficult. The mitigation is that HPE should have realised this and been more cautious - instead they rushed into the acquisition.

Post-acquistion, HPE had no real plans for how to integrate Autonomy and sales appear to have been lost because of this - which HPE have then added to the claims of fraud. Win-win...

I believe HP have completely failed to show the scale of the fraud matches their claims. In addition, HPE's witnesses have demonstrated that they largely ignored their internal advice (i.e. the CFO advising Leo not to proceed without due diligence) and relied on painting their own failings as the fault of others to drive this prosecution. While anything can happen (I'm relying on my understanding of ElReg's and others coverage), Lynch appears to be the victim in-spite of my doubts about the viability of Autonomy's business prior to the acquisition.

As for HP/HPE - we are left wondering if someone more competent than Hurd had run the company between 2005 and 2010 whether they would have had more of a future. Leo appears to have been a few SAP's short of an ERP while Whitman would have been more suited to a Disney step mother role. In the intervening ~15 years, HP has become a shadow of its former self and if DXC continues to struggle and HP Inc is taken over by Xerox, will shareholders even be able to sue the remnants? Maybe HPE have done enough to shield execs from what they feared the most?

[Anonymous Coward]

Post-acquistion, HPE had no real plans for how to integrate Autonomy

Hey, maybe they'd be perfect to complete Brexit.

[Anonymous Coward]

Re: Post-acquistion, HPE had no real plans for how to integrate Autonomy

lol brexit... so 2019,2018,2017,2016

[Anonymous Coward]

Re: Fraud

HP would have had an amazing future with someone more competent than Hurd (before or since). They had business units and products in every level of the DC hardware stack from compute to networking and storage (including security). They had end-user compute (mobile devices and tablets through Palm) as well as existing desktops and thin clients.

They had the software stack - everything for DC operations, monitoring, automatic deployment, the beginnings of a credible Openstack deployment in Helion and they probably could have acquired SuSe instead of MicroFocus snapping it up and had the foundations of their own operating system and container support.

Finally, they had a huge consultancy arm in the forms of the existing HPTS and the former EDS, which could have been a massive driver of all of these technologies & solutions when it came to helping partners and customers deploy them.

They could have been the foundation for customers to build their own clouds or a convenient on/off ramp for to public cloud (a la VMware). They could have been the customer one-stop-shop for hardware that Apple dreams of, except without the horrible walled-proprietary garden and awful repair/upgrade paths.

They held all of the pieces (both hardware and software) in a way no other company has done before or since. They could have trailblazed in all of these areas, or at the very least been a big player. Instead they let it all slip through their fingers through lack of vision and poor management.

[Doctor Syntax]

Re: Fraud

"they probably could have acquired SuSe instead of MicroFocus snapping it up and had the foundations of their own operating system and container support."

They already had their own OS - HPUX.

[Twanky]

Re: Fraud

They already had their own OS - HPUX.

And through their 'merger' with Compaq they had acquired VMS.

[Anonymous Coward]

Re: Fraud

They also got Tru64 from the merge with Compaq.

[Anonymous Coward]

Re: Fraud

Oh God! And at the mention of HPUX, all the Deckites simultaneously arose from their tombs in the tree trunks of Sleepy Hollow to scream "V-M-S" into the howling darkness ....

[Dolvaran]

Re: Fraud

And DUX/Tru64 - which was dropped like a hot potato. I was on a focus group shortly after the acquisition that looked into which features should be ported from Tru64 to HPUX. The top items were remote management and the cluster file system. Interestingly, HP decided to drop the lot and go with the v1.0 product from Veritas. I never understood why.

[Anonymous Coward]

Re: Fraud

Yep, good shout, forgot all about HP-UX.

They also had datacentres all over the globe through the EDS acquisitions (and others). The building blocks of everything you'd need to build a credible competitor cloud to AWS/Azure/Google, without having to invest (initially) in new DC facilities.

It takes a special kind of beancounter stupid to hold all the cards in virtually every technological area of growth in the last decade (and to throw it all away)...

[BebopWeBop]

Re: Fraud

IBM have been doing a good job of it.

[Franco]

Re: Fraud

They also had WebOS from the Palm acquisition which was rated pretty highly despite its immaturity by most reviewers, then proptly dropped it.

HP does not exactly have a stellar record when it comes to acquisitions.

[Vometia Munro]

Re: Fraud

They had VMS too. Just no idea what to do with it.

[Roland6]

Re: Fraud

>They had VMS too. Just no idea what to do with it.

They had many things they most probably didn't really know what to do with:

Apollo Domain

Tandem Nonstop

...

[Dolvaran]

Re: Fraud

Interestingly, you could have said much of the same about Compaq under Capellas immediately after the DEC acquisition. The end result was very similar also.

[Steve Davies 3]

If Lynch lied

during the Due Diligence phase then why the hell didn't this raise a huge warning time to HP?

If this is true then someone (or more than one) on HP's side cocked up big time and it should be them in the dock.

Oh well, this statement is probably aimed more that the US (in)Justice system so that they''' get Lynch and friends extradited and probably jailed for eternity.

[G R Goslin]

It used to be called....

....Caveat Emptor. If the buyers are unsatisfied, they can always walk away., and many do. However, greed will always trump common sense.

[ma1010]

Verdict

As an earlier article in El Reg put it, one possible verdict would be "A plague on both your houses!" And well-deserved, I think.

Another possibility might be "Kill all the beancounters and let God sort 'em out," which I suspect the BOFH would approve.

[Anonymous Coward]

Re: Verdict

"As an earlier article in El Reg put it, one possible verdict would be "A plague on both your houses!" And well-deserved, I think."

Before the trial I may have agreed - since HPE started presenting their witnesses, I'm not sure there will be any plague left over for Lynch once we've finished giving HPE and their lawyers their share.

Interestingly (or maybe worryingly...), there have been worldwide plagues in the 1820's and 1920's so we are due for another...

[John Brown (no body)]

Click to enlarge

No it doesn't. It's the same size. Did the HP marketing team select the caption?

[John Smith 19]

So writing off 10s of $m but writing down $Bns

Is anyone seeing a disagreement with these numbers?

[DavCrav]

HPE moaning about having the wool pulled reminds me of that Yes, Prime Minister quotation: "So much wool in his head, it's child's play to pull it over his eyes."

[Anonymous Coward]

Is it just me..

.. or is every testimony offered by HPE more and more indicative of their own faults and flaws than Autonomy? Just the due diligence alone is so shaky or, well, pretty much absent that it matters not one jot what Autonomy may or may not have misrepresented in their accounts - that's the whole point of due diligence in the first place.

Add to this the internal warnings and I can't see how this case would manage to shift the blame to Autonomy. Every time HPE enters statements it appears to merely deepen the hole they already dug for themselves.

The only winners here are the lawyers IMHO..

[Ian Johnston]

Why would anybody believe anything produced by anyone of the big accountancy firms? Or is it really just a matter of arse covering and nobody does believe them?