Accounting for Economic Reality Under the Intangibles Paradigm
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Buffalo Law Review Volume 54 Number 1 Article 3 5-1-2006 Measuring and Representing the Knowledge Economy: Accounting for Economic Reality under the Intangibles Paradigm Olufunmilayo B. Arewa Case Western Reserve University School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Business Organizations Law Commons Recommended Citation Olufunmilayo B. Arewa, Measuring and Representing the Knowledge Economy: Accounting for Economic Reality under the Intangibles Paradigm, 54 Buff. L. Rev. 1 (2006). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol54/iss1/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. BUFFALO LAW REVIEW VOLUME 54 MAY 2006 NUMBER 1 Measuring and Representing the Knowledge Economy: Accounting for Economic Reality under the Intangibles Paradigm OLUFUNMILAYO B. AREWAt INTRODUCTION In some ways the history of Enron reflects a standard story of corporate fraud, malfeasance, and failed corporate oversight and governance. Any telling of this aspect of the Enron story might focus on the misrepresentations that were made by Enron about the nature of its business and business practices. These misrepresentations were reflected in Enron's securities disclosure, including its financial statements. However, this version of the Enron saga does not always take full account of an important element of the broader business context within which Enron operated. This aspect of the business context relates to the changing nature of sources from which companies derive value today. Another perspective from which to read the Enron story is to consider the fact that companies today operate in a post- industrial knowledge economy that is largely based on the use and exploitation of intangible assets such as informa- t Assistant Professor, Case Western Reserve University School of Law. A.B. Harvard College, M.A., Ph.D., University of California, Berkeley (Anthropology); A.M. University of Michigan (Applied Economics); J.D. Harvard Law School. E-mail: [email protected]. For their helpful comments, I am indebted to George Dent, Jonathan Entin, Jill Fisch, Nancy Kim, Andrew Morriss and participants at workshops at Chicago-Kent College of Law and Northwestern University School of Law. This article would not have been possible without the able research assistance of Justin Morocco and Silja Bornschlegl. BUFFALO LAW REVIEW [Vol. 54 tion technology, research and development, brand equity, and intellectual property rights.' Existing securities disclosure and accounting frameworks developed in the context of companies that operated under a tangible industrial business model in which tangible assets such as property, plant, and equipment were the predominant sources of value. Current securities disclosure frameworks and the accounting regimes incorporated within such frameworks fail to address the full implications of this new intangibles paradigm that is a key characteristic of knowl- edge economy business worldview and practice. This failure represents an important and often omitted aspect of the story of not only Enron and other cases of corporate fraud in the late 1990s, but more importantly of many corporations operating in today's business environment. The history of Enron reflects an extreme example of the types of behaviors that are made possible and even encouraged as a result of an accounting and disclosure "haze" that currently surrounds intangibles. 2 Enron's public discourse focused on presenting the company as being at the forefront of the knowledge economy: [We are participating in a new economy, and the rules have changed dramatically. What you own is not as important as what you know. Hard-wired businesses, such as energy and communications, have turned into knowledge-based industries that place a premium on creativity. Enron has been and always will be the consummate innovator because of our extraordinary people. It is our intellectual capital-not only our physical assets- 3 that makes us Enron. Although Enron aggressively advanced itself as a "new economy" knowledge-based company within the intangibles 1. ADAM B. JAFFE & MANUEL TRAJTENBERG, PATENTS, CITATIONS AND INNOVATIONS: A WINDOW ON THE KNOWLEDGE ECONOMY 1 (2002) ("In the last few decades, we have experienced what have come to be called the 'information age' and the 'knowledge economy.' . [1]t is now 'knowledge'-not labor, machines, land or natural resources-that is the key economic asset that drives long-run economic performance."). 2. See Baruch Lev, Where Have All of Enron's Intangibles Gone?, 21 J. ACCT. & PUB. POL'Y 131, 131-32 (2002) (discussing the role of intangibles at Enron). 3. ENRON, ANNUAL REPORT 1999, at 2 (2000), available at http://www.enron. com/corp/investors/annuals/annua99/pdf.html. 2006] THE KNOWLEDGE ECONOMY paradigm, 4 the reality was quite different, and Enron did not actually have many intangible assets. Enron's required securities disclosures, however, did not always clearly illustrate this fact, at least partly because Enron was quite effective in taking advantage of the fact that current securities disclosure and accounting requirements do not fully or adequately address how companies should treat intangibles. This omission facilitated Enron's ability to present a fundamentally inaccurate representation of the economic reality of its business and business operations. The negative consequences of such inaccurate representa- tions of economic reality by Enron and other companies are exacerbated by the mismatch between intangibles paradigm business practices and tangibles paradigm regulatory standards. Enron demonstrates one strategy that companies have used to emphasize the role of intangibles in their business operations by means of what might be termed intangibles paradigm discourse. Intangibles paradigm discourse may be characterized as a manner of communication about intangi- bles such as information technology and intellectual property that emphasizes the role of such intangibles in business organization and practice. 5 Through use of such discourse, Enron took advantage of the lack of fit between disclosure requirements and business practices. Enron and other companies have thus benefited from the fact that securities disclosure and accounting rules currently require only limited disclosure with respect to intangibles. 6 A significant commentary exists, in the accounting field in particular, concerning the implications of intangibles for accounting frameworks.7 From a legal perspective, much has been written concerning the link between recent cases of corporate fraud and questionable accounting practices,8 4. See infra Part II and accompanying text for a discussion of the intangibles paradigm. 5. See infra Part IV.A.2 and accompanying text for additional discussion concerning Enron's intangibles paradigm discourse. 6. See Baruch Lev, Sharpening the Intangibles Edge, HARv. Bus. REV., June 2004, at 109, 112 (noting that GAAP does not require meaningful disclosure from companies about intangibles investment except for aggregate research and development expenditures). 7. See infra Part III and accompanying text. 8. See, e.g., infra notes 33, 360, 365, 368, 384, 406 and accompanying text. BUFFALO LAWREVIEW [Vol. 54 as well as the implications of information and communica- tion technologies (ICTs) for existing securities regulation frameworks. 9 This Article seeks to mediate between these existing discussions in the legal and accounting fields by drawing attention to the fact that a fundamental paradigm shift in business organization and practice emerged in the latter half of the twentieth century. Although many of the elements of this paradigm shift are at least implicitly recognized in some existing accounting and legal commen- tary, this Article examines some of the specific ways in which evidence of this paradigm shift is apparent, as well as the consequences of this shift for business organization and practice. This Article focuses on the fact that a common key element underlying issues discussed by commentators from the legal and accounting fields is perceptible changes in business organization and practices under the intangibles paradigm. This changing business environment has facilitated the "creative" accounting practices that came to typify the securities disclosure and accounting presenta- tions of many companies during the Internet boom of the late 1990s.10 This new business milieu may have even facilitated fraud at companies such as Enron. The creative accounting practices that became increasingly recognized in the 1990s have been facilitated by the current ways in which existing regulatory structures approach the intangibles paradigm. As a result, a key element in confronting the reality of the intangibles paradigm will be 9. See, e.g., Paul D. Cohen, Securities Trading via the Internet, 4 STAN. J.L. Bus. & FIN. 1, 1 (1999) (noting that new technology requires new regulatory approaches); Jill E. Fisch, Can Internet Offerings Bridge the Small Business Capital Barrier?,2 J. SMALL & EMERGING Bus. L. 57, 69-70 (1998) (noting that the Internet "offers new methods for offering and selling securities"); Donald C. Langevoort, Information Technology and the Structure of Securities