Tag Archives: Sarbanes Oxley Act

Financial Restatements Continue to Decline for U.S. Reporting Companies

Financial restatements among U.S public companies hit their lowest level in years in 2016, according to the updated annual report of Audit Analytics. As a result of heightened standards as well as the decreased numbers of listed companies, the share U.S. companies restating their prior financial statements hit their lowest level since 2010 and the … Continue Reading

Enron’s Legacies, a Decade and a Half Later

Fifteen years ago this month, the once high-flying energy company Enron completed its massive collapse when it filed a petition for bankruptcy protection. In his interesting December 2, 2016 post on the Harvard Law School Forum on Corporate Governance and Financial Regulation (here), Michael Peregrine of the McDermott, Will & Emery law firm takes a … Continue Reading

Guest Post: Ninth Circuit Clarifies What Might Trigger SOX 304 Disgorgement

Among the many issues arising under the Sarbanes-Oxley Act are questions surrounding disgorgement under Section 304, particularly questions concerning what actions and whose actions might trigger disgorgement. In the following guest post, Bruce Ericson of the Pillsbury Winthrop Shaw Pittman law firm takes a look at the Ninth Circuit’s August 31, 2016 decision in U.S. … Continue Reading

Thinking About the Applicability of SOX Whistleblower Protection to Private Company Employees

Since their 2002 enactment, the whistleblower protections in Section 806 of the Sarbanes-Oxley Act have been presumed to apply only to employees of publicly traded companies. After all, the provisions are entitled “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” However, in its March 4, 2014 holding in Lawson v. FMR, … Continue Reading

Looking at the Costs and Benefits of SOX

The Sarbanes Oxley Act was enacted nearly twelve years ago in the midst of profusion of corporate scandals. Despite the passage of time, the Act has remained controversial. In order to evaluate the Act’s impact, Harvard Law Professor John C. Coates and Harvard Business School Professor Suraj Srinivasan undertook to review over 120 studies of … Continue Reading

District Court Affirms SEC’s SOX Section 304 Right to Recoup Bonus Compensation from Executives of Companies Restating Financials

In a November 13, 2012 opinion (here), Western District of Texas Judge Sam Sparks has upheld the right of the SEC under Section 304 of Sarbanes Oxley to seek to clawback bonus compensation paid to the CEO and CFO of Arthrocare, after the company restated its prior financial statements., even though the CEO and CFO … Continue Reading

The Word is “Whistleblower”

A number of different organizations  generate annual publicity for themselves by designating a word (or words) of the year. We are not yet half way through 2011 but I am already prepared to propose my own candidate for this year’s word of the year – the word is “whistleblower.” From the provisions of the Dodd-Frank Act … Continue Reading

Supreme Court Rules PCAOB Removal Provisions Unconstitutional, Upholds SOX

In a June 28, 2010 decision (here), the Supreme Court issued its opinion in Free Enterprise Fund v. Public Company Accounting Oversight Board case. This case had been widely followed because the petitioners challenged the constitutionality of the Sarbanes-Oxley Act and of the Public Company Accounting Oversight Board (PCAOB).   The petitioners prevailed before the … Continue Reading

Sarbanes-Oxley Act Clawbacks and D&O Insurance

The SEC has made it clear that it intends to use Section 304 of the Sarbanes-Oxley Act to "clawback" compensation from CEOs and CFOs of companies that restate their financial statements, even if the individuals are not alleged to have engaged in any wrongdoing. A recent district court opinion confirms that the statute gives the … Continue Reading

Restatements Decline – Again

Both the number of restatements and the number of companies reporting restatements are declining according to a new study. The number of restatements has been declining for three years now, and the number has declined materially since the figures peaked in 2006, both because of better controls and changing standards.     The study, by … Continue Reading

Restatements, Clawbacks and CFO Career Consequences

If the facts don’t fit, you must remit. That seems to be the view of an increasing number of companies, as they have adopted provisions requiring repayment of executive compensation found to have been based on incorrect financial statements. The concept of compensation clawbacks was actually built into the Sarbanes Oxley Act. Section 304 requires … Continue Reading