SEC Should Keep Close Eye on HP, Whitman

NEW YORK ( TheStreet) -- Meg Whitman is filthy rich.

Outcomes at Hewlett Packard ( HPQ) impact her much less than they do rank-and-file employees and random shareholders.

While I have no doubt Whitman wants to win, it's simply not possible to take her words and invest on them. If she's wrong, what happens to her?

She might -- though this is hardly certain -- get fired. In this scenario, the door barely taps her rear end on the way out. She'll likely receive some sort of "package" from HP as part of her exit, adding to her already vast riches. That's the standard "consequence" for CEOs who fail miserably.

>>Also see: Hewlett Packard Insiders Underwater on Sinking Stock

One look at HP's CEO history or Yahoo!'s ( YHOO) makes that clear.

Do not ignore comparisons between HP and Research in Motion ( RIMM) . They might end up illustrating a classic case of history repeating itself.

As I explain in the above-linked article, Whitman weaves pretty close to the same story RIM co-CEOs James Balsillie and Mike Lazaridis fumbled through during 2011, particularly with relation to full-year guidance.

And, as these stories come together, where is the U.S. Securities and Exchange Commission, commonly known as the SEC?

On quarterly conference calls, Meg Whitman can says things like . . .
In terms of our new products, many are . . . being introduced now, so you'll see them really start to hit in Q3 and Q4 . . . So you obviously do see a second half that's going to be gaining strength.

Right. Obviously.

And this . . .
. . . we understand what your concern is, but we feel good about our $3.40 to $3.60 estimate for fiscal year 2013 earnings .

And this from the CFO Catherine Lesjak . . .
It really all comes down to our view of the second half. So we definitely see that the second half per normal seasonal trends is higher than the first half, and we're seeing that is skewed even more as a result of the restructuring programs that we've talked about and the fact that ... we believe Autonomy will ramp more in the second half ... it's really about all of our new products that are coming in, and the fact of the matter is that they don't really get significant traction until the second half of the year . . . So all of these are really contributing to a very different profile in the year from a revenue and profit perspective emphasis added .

Note Lesjak's use of the word "fact."

How can an executive of a company in HP's position have the nerve -- or be dumb enough (but I give Lesjak more credit than that) -- to attach "fact" to anything having to do with Autonomy or HP's let's hope and pray Windows 8 does something . . . anything second-half product line?

HP's guidance hinges on success at 2012's biggest alleged fraud and Microsoft ( MSFT).

Lesjak can feign objective truths, and Whitman can "feel comfortable" and "good" about full-year guidance, because neither has much on the line other than their already soiled reputations as executives of yesteryear.

The SEC covers their butts just like it, and Canadian regulators, did RIM's with this type of boilerplate . . .
Some information provided during this call may include forward-looking statements that involve risks, uncertainties and assumptions. If the risks or uncertainties ever materialize or the assumptions prove incorrect, the results of HP may differ materially from those expressed or implied by such forward-looking statements and assumptions.

That standard fare, straight from the Webcast of HP's Nov. 20 Q4 2012 earnings conference call, goes on to say what amounts to if we get it wrong, it was a big "oops" because you can never be sure about these things, and by the way, we're under no obligation to update our incredibly optimistic guidance, even if it is about to blow up.

At day's end, the SEC lets companies such as RIM and HP off the hook. They allow them to issue long-term guidance on the basis of hopes, prayers, shaky assumptions and poor visibility.

No consequences exist. No remedies for shareholders other than the ambulance-chasing, post-earnings miss class action lawsuits that rarely turn into much.

It's easy to blame the shareholder for buying RIMM or HPQ on the confidence of management vis-a-vis guidance, but that's an irrelevant point. Words from executives influence decisions, good or bad. As such, investors deserve tighter regulatory controls.

The IRS doesn't give individuals this much leeway when they prepare their tax returns. Why then does the SEC provide company executives wiggle room when they float guidance?

RIM was wrong about it's guidance. For all I know, HP might end up being right. But, if they're not, the shareholder who thought he or she was buying "value" on the notion of $3.40 to $3.60 full-year EPS has absolutely no recourse.

And unaccountable CEOs such as Whitman have absolutely nothing to lose.

-- Written by Rocco Pendola in Santa Monica, Calif.
Rocco Pendola is TheStreet's Director of Social Media. Pendola's daily contributions to TheStreet frequently appear on CNBC and at various top online properties, such as Forbes.

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