创业与商业a16z.com
我为什么没有坐牢 (2014)
Why I did not go to jail (2014)
2018 — 2021，它一次次回到首页
黑点是上首页（≥ 50 分）的那次投稿，空心点是没冲上去的投稿，点越大分数越高。
导读
Ben Horowitz 回忆 Opsware 曾差点采用前同事 Michelle 推荐的股票期权回溯做法；他坚持让法务 Jordan 独立审查，Jordan 判定该做法不合法，公司因此没有实施。后来 Michelle 因前公司的期权操作入狱 3.5 个月，作者以此说明合规审查和律师意见的价值。评论区补充：Michelle 实际认罪涉及个人税表上虚报行权日期，而非仅仅因为公司回溯期权。
为什么经久不衰：它用亲历者的“差点踩线”故事说明审计师批准不等于合法，法律风险可能延迟反噬；加上评论对案件事实的补充，今天读仍很有警示和辨析价值。
HN 评论精选
入狱的直接原因是个人税务申报欺诈，而非公司期权回溯本身。
Abrams 实际并不是因回溯股票期权而入狱。她在刑事案件中认罪的是在税表上申报了虚假的行权日期，使更多利润按资本利得（较低税率）而非普通收入纳税。为降低边际税率冒坐牢风险是另一个问题。Horowitz 说 Michelle 因参与前公司期权操作服刑 3.5 个月，算是吧；针对 Abrams 的指控确实是回溯调查的后果。但把公司给高管的贷款回溯、调换行权日期以少缴个人税，并不是 Horowitz 计划实施的做法；不需要多厉害的法务也能避开，按 TurboTax 的说明做大概就行。
phonon查看英文原文
"Abrams did not actually go to jail for backdating stock options. What she pleaded guilty to in a criminal case[1] was listing a false exercise date for her options on her tax returns. That meant more of her profits got taxed as capital gains (at a lower rate), less as ordinary income. Lowering your marginal tax rate is a silly reason to risk jail, but that’s a separate question. In his post, Horowitz says, “Michelle ultimately served 3 1/2 months in jail for her part in [her old employer’s] stock option practice — the same practice that we nearly implemented at Opsware.” Well, sort of. Certainly the charges against Abrams were a consequence of the backdating investigation. It’s safe to guess, though, that backdating company loans to executives (something else that happened at Abrams’ earlier company) and switching around exercise dates to cut his own taxes weren’t practices Horowitz was planning to implement. You don’t need a great general counsel to steer clear of this. Just following the instructions on TurboTax would probably do it." https://web.archive.org/web/20150108121957/http://go.bloomberg.com/market-now/2014/02/12/dont-worry-ben-its-a-long-way-to-san-quenti/ [1] https://web.archive.org/web/20130530050608/http://www.justice.gov/usao/can/news/2010/2010_09_16_abrams.guiltyplea.press.pdf
合规不是可选项，白领犯罪也会带来真实刑责。
这是 HN 应定期重贴的重要内容之一。遵守法律不是可选项，越线很可能日后反噬。受监管行业、股票交易（如这段创业史中的期权）都有特殊规则，不能以为做错也只是轻描淡写。若合规让你不舒服，就去做只涉及你、不把股东员工客户暴露在你个人能承受的风险里的事。作者为 Michelle 说好话值得敬佩，但 3.5 个月非缓刑的白领判决并不轻；关键是原则问题。
jacquesm查看英文原文
This is one of the more important bits to be periodically reposted on HN. Compliance with the law is not 'optional', and if you cross that line there is a fair chance that it will come back to bite you. Regulated industries, stock transactions (and options, as in this bit of startup history) all have their peculiarities and you need to realize that not all of these end up with the proverbial slap on the wrist if you end up doing them in a way that is wrong. Then there is outright negligence, which would make things even worse. If compliance is an ugly word to you then please go and do something that just involves you and that does not expose others (shareholders, employees, customers) to the risks that you apparently are comfortable with but that they are probably not comfortable with. As much as I applaud the writer for covering for Michelle and putting her actions in the best light: a 3.5 month non-suspended sentence is not something that is handed out lightly for a white collar issue. Both Michelle and the other execs at that company profited from doing this at the expense of the other shareholders, but that's not what landed her in jail. Keep in mind that nobody died, and that the difference between the worst and the best date within a month to backdate those options to could not have been so massive that we're looking at huge differences in pay-out compared to the total value. It is the principle that matters, ask Martha Stewart (a billionaire) how her attempt to save $45K ended up to see why this is so, and check out what mobster Al Capone got convicted of. Also note that even asking for outside counsel may not be enough to get you off the hook, and that no matter what your accountant tells you in the end you are responsible for your actions. Don't go to jail. If your boss tells you to do something that might land you in jail: resign. And take legal compliance serious, as serious as though your company and your future depend on it, one day they just may.
四大审计师的背书不等于合法，历史上审计师曾因迁就大客户而失守。
文章里 Michelle 很惊讶，因为她前公司多年这样做且 PwC 完全批准；Ben 仍坚持让 Jordan 先审。Jordan 查了六遍法律后认为严格来说不合法，建议不要做。评论者指出，Enron 和 WorldCom 崩盘的原因之一就是审计师 Arthur Andersen 愿意把大客户想做的都认证为合法，因为不想丢客户。所以如果你掌握大量现金流并想打法律擦边球，别指望四大审计师会劝退你。
smacktoward查看英文原文
> Michelle was surprised, as her previous company had run this practice for years with full approval from PricewaterhouseCoopers, its accounting firm. I said: “That’s all fine and good, but I still need Jordan to review it first.” Jordan came back with an answer that I did not expect: “Ben, I’ve gone over the law six times and there’s no way that this practice is strictly within the bounds of the law. I’m not sure how PwC justified it, but I recommend against it.” One of the foundational reasons for the spectacular implosions of both Enron and WorldCom was the behavior of their common auditor, the ginormous accounting firm Arthur Andersen (https://en.wikipedia.org/wiki/Arthur_Andersen). Andersen was willing to certify pretty much anything these companies wanted to do as fully legal and above-board, because these were big clients and Andersen didn't want to lose them to some other accounting firm by inconveniently insisting that they keep honest books. So they were free to rip people off in all sorts of creative ways for years, protected from close scrutiny by Andersen's seal of approval. All of which is to say that, if you represent serious cash flow and you're tempted to push the legal envelope, you probably shouldn't expect a Big Four accountant to be the one to talk you out of it.
统计证据让缺乏书面痕迹的期权回溯暴露，并引发大规模调查。
有趣的是，这些回溯计划是被统计学抓住的。当时监管下可以安排得没有书面证据：期权授予由内部委员会决议，文件事后归档，所以大家觉得“人人都做且没事”。但学者用统计证明期权回溯确实在发生，很快这成了许多公司的重大法律问题。
ajb查看英文原文
One interesting thing is that these backdating schemes were caught out by statistics. As I understand it, at the time the regulatory regime was such that it could be arranged easily that there be no documentary evidence that backdating had occurred - options grants were made by resolution of some internal company committee and documentation of this was filed after the fact. (Not sure if this is true today?). Thus this practice came to be one that 'everybody does, and gets away with'. But, some academics figured out that they could show statistically that options backdating was occurring: https://www.researchgate.net/profile/Raquel-Alexander/publication/265405026_Print_Backdating_Employee_Stock_Options_Accounting_and_Legal_Implications/links/556da79b08aefcb861d92cb7/Print-Backdating-Employee-Stock-Options-Accounting-and-Legal-Implications.pdf and very quickly it became a huge legal issue for a lot of companies.
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