Published July 25, 2012
WASHINGTON – When Bally Total Fitness filed a proxy statement with the federal government in April 2000 identifying its major investors, the list included Mitt Romney as "sole shareholder, sole director, president and chief executive officer" of Brookside Capital Investors Inc., a Bain Capital investment fund that effectively controlled 5 percent stock ownership in the national health club chain.
Romney was the undisputed owner of Brookside, a Bain management partnership. It had been used for years to oversee some of the private equity company's expanding investments and takeover deals, including a $1 billion acquisition of Domino's Pizza the same year. But other Bain partners also held voting power in the interlocking investment funds the company used, along with Brookside, to exercise its stock ownership.
That complicated business relationship is at the core of the presidential campaign dispute over whether dozens of reports filed with the Securities and Exchange Commission show Romney's continuing role as CEO in the three years after he left Bain Capital in February 1999 to head Salt Lake City's Winter Olympics. Romney was named at least 39 times in SEC filings as sole shareholder and chief executive of Bain funds used in corporate takeovers and other investment deals, according to an Associated Press review.
Former SEC officials and other legal authorities familiar with securities law say such filings were legal formalities that reflected Romney's ownership stakes, not his actual management of the shares. Romney could have kept his management role during that period, they said, but the SEC documents are useful in establishing his "beneficial ownership" — the voting power over stock holdings that he shared with his Bain partners.
The SEC's beneficial ownership statements have been required corporate filings since 1968, when a congressional act enforced their use to ward off the threat of surprise takeovers of public companies. The 1968 Williams Act ordered that any individual or company buying up more than 5 percent of a public company's stock needed to file a 13-D beneficial ownership statement within 10 days of the transaction.
The filings are used by the SEC, companies and investors as an early warning system to show the sudden accumulation of large stock stakes, said Brian J. Lane, a partner at the Washington law firm of Gibson Dunn and former director of the SEC's Corporate Finance Division, which oversees corporate filings.
After media reports cited Romney's SEC filings last month in raising questions about his role at Bain Capital after leaving for the Olympics in 1999, Democratic Party officials questioned whether those documents were accurate. Stephanie Cutter, President Barack Obama's deputy campaign manager, said Romney was "either misrepresenting his own position at Bain to the SEC, which is a felony, or he was misrepresenting his position at Bain to the American people."
The Romney campaign objected to her comments. Cutter later said she was not accusing Romney of committing a crime, but she and other Democratic Party critics have continued to question his SEC filings.