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29 Jun 2022

The Impact of the Sarbanes-Oxley Act of 2002

Categories Sarbanes–Oxley Act

Introduction After a series of corporate scandals, such as Enron and Worldcom, rocked the United States between 2000 and 2002, the Sarbanes-Oxley Act (SOX) was enacted in July 2002. Its purpose was to restore investor confidence in the financial markets and address loopholes that allowed public companies to defraud investors. The act had a profound effect on corporate governance in the U.S., introducing several key changes to enhance transparency, accountability, and penalties for fraudulent activities.

Key Takeaways

  1. The Sarbanes-Oxley Act of 2002 was passed to combat corporate fraud and failures by implementing new rules for corporations.
    • New auditor standards were established to reduce conflicts of interest.
    • Responsibility for complete and accurate financial reports was transferred to corporations.
    • Harsher penalties were introduced to deter fraud and misappropriation of corporate assets.
    • Disclosure requirements were enhanced, including the disclosure of material off-balance sheet arrangements.

Impact on Corporate Governance One significant effect of the Sarbanes-Oxley Act was the strengthening of public companies’ audit committees, which play a vital role in overseeing accounting decisions. The act granted audit committees increased responsibilities, such as:

  • Approving audit and non-audit services.
  • Selecting and overseeing external auditors.
  • Addressing complaints regarding management’s accounting practices.

Management Responsibility for Financial Reporting The Sarbanes-Oxley Act significantly changed the responsibility of top managers for financial reporting. Key provisions include:

  • Top managers are required to personally certify the accuracy of financial reports.
  • Knowingly or willfully making false certifications can lead to 10 to 20 years of imprisonment.
  • In cases of required accounting restatements due to management misconduct, managers may have to forfeit bonuses or profits from stock sales.
  • Convictions for securities law violations can result in a prohibition from serving in similar roles at public companies.

Enhanced Disclosure Requirements The Sarbanes-Oxley Act strengthened disclosure requirements for public companies, including:

  • Mandatory disclosure of material off-balance sheet arrangements, such as operating leases and special purposes entities.
  • Disclosure of pro forma statements and their adherence to generally accepted accounting principles (GAAP).
  • Insider stock transactions must be reported to the Securities and Exchange Commission (SEC) within two business days.

Stricter Criminal Penalties The act imposes harsher punishments for obstructing justice, securities fraud, mail fraud, and wire fraud. Key changes include:

  • Increased maximum prison sentences for securities fraud and obstruction of justice (up to 25 and 20 years, respectively).
  • Maximum prison terms for mail and wire fraud raised from 5 to 20 years.
  • Significantly higher fines for public companies committing the same offenses.

Costs and Compliance Challenges The most expensive aspect of the Sarbanes-Oxley Act is Section 404, which requires public companies to conduct extensive internal control tests and include an internal control report with their annual audits. Compliance challenges include:

  • Testing and documenting manual and automated controls in financial reporting, involving external accountants and experienced IT personnel.
  • Compliance costs are particularly burdensome for companies heavily reliant on manual controls.
  • Some critics argue that compliance efforts distract personnel from core business activities and discourage growth.

Expert Opinion According to Michael Connolly, a Professor of Economics at the Miami Herbert Business School, the Sarbanes-Oxley Act’s penalties and certification requirements may deter fraudulent activities. However, he notes that the higher compliance costs, separate audit requirements, and investment obligations may disadvantage smaller firms and favor larger ones.

Establishment of the Public Company Accounting Oversight Board The Sarbanes-Oxley Act created the Public Company Accounting Oversight Board, responsible for:

  • Promulgating standards for public accountants.
  • Limiting conflicts of interest.
  • Requiring lead audit partner rotation every five years for the same public company.

Please note that this document provides a summary of the information and does not include all the nuances and details of the Sarbanes-Oxley Act of 2002. For a comprehensive understanding, it is recommended to refer to the full act and consult legal and financial professionals.

Additional Resources

Here is a comprehensive list of additional resources that provide authoritative information and valuable insights on the Sarbanes-Oxley Act of 2002:

Websites and Online Resources:

  1. Securities and Exchange Commission (SEC): The official website of the SEC offers a wealth of information on the Sarbanes-Oxley Act, including regulations, guidance, and enforcement actions. Visit the SEC’s Sarbanes-Oxley Act page here.
  2. Public Company Accounting Oversight Board (PCAOB): The PCAOB website provides resources related to auditing standards, inspections, and other aspects of the Sarbanes-Oxley Act. Explore their Sarbanes-Oxley Act section here.

Books:

  1. “Sarbanes-Oxley For Dummies” by Jill Gilbert Welytok: This comprehensive guide offers an accessible introduction to the Sarbanes-Oxley Act, explaining its provisions, requirements, and implications. Find the book here.
  2. “The Sarbanes-Oxley Act: Analysis and Practice” by David L. Greenberg and Mark H. Mizer: This book provides an in-depth analysis of the act, including case studies and practical insights for compliance and implementation. Access the book here.

Academic Journals and Research Papers:

  1. “The Impact of the Sarbanes-Oxley Act on American Business” by John W. Dickhaut and Kevin J. McCabe: This academic paper explores the effects of the Sarbanes-Oxley Act on corporate behavior, financial reporting, and market dynamics. Access the paper on the Social Science Research Network here.
  2. “The Sarbanes-Oxley Act and Corporate Governance: Evidence from the Insurance Industry” by Robert E. Hoyt and Sabrina T. Howell: This research paper analyzes the impact of the Sarbanes-Oxley Act on corporate governance practices specifically within the insurance industry. Find the paper in the Journal of Risk and Insurance or access it on the Social Science Research Network here.

Reports and Studies:

  1. “The Sarbanes-Oxley Act: A Cost-Benefit Analysis Using the U.S. Banking Industry” by Ozlem Bedre-Defolie and Markus Reisinger: This study assesses the costs and benefits of the Sarbanes-Oxley Act, focusing on its effects on the U.S. banking industry. Access the study on the Centre for Economic Policy Research’s website here.
  2. “Sarbanes-Oxley Act, Bank Loans, and Credit Analysts” by Bin Srinidhi, Mark T. Bradshaw, and Venky Nagar: This report investigates the effects of the Sarbanes-Oxley Act on bank loans and credit analysts’ role in evaluating financial statements. Find the report on the Social Science Research Network here.

Professional Organizations and Associations:

  1. American Institute of Certified Public Accountants (AICPA): The AICPA provides resources, guidance, and updates related to the Sarbanes-Oxley Act for accounting professionals. Visit their Sarbanes-Oxley Act section here.
  2. Financial Executives International (FEI): FEI offers valuable insights, webinars, and publications on corporate governance and the Sarbanes-Oxley Act. Explore their resources here.

Please note that these resources are subject to their respective publishers’ terms and conditions. Ensure to verify the relevance and credibility of the information before relying on it for decision-making purposes.

24 May 2022

Unveiling the Hidden Advantages of Sarbanes-Oxley: Transforming Corporate Governance and Management Practices

Categories Sarbanes–Oxley Act

When Congress passed the Sarbanes-Oxley Act of 2002, its primary focus was on combating fraud, improving financial reporting reliability, and restoring investor confidence. However, some executives have discovered unexpected benefits of the law. This article explores how Sarbanes-Oxley has prompted positive changes in corporate governance, management practices, and investor perception.

Taking Control of Controls

  • Section 404 of Sarbanes-Oxley places the responsibility of maintaining a sound internal-control structure for financial reporting on management.
  • Executives who approached Sarbanes-Oxley with gratitude saw an opportunity to divert resources towards improving financial management processes and capabilities.
  • Initial implementation of Sarbanes-Oxley in 2004 was burdensome, leaving little time for proactive initiatives beyond literal compliance.
  • As compliance reviews and assessments exposed weaknesses and gaps, executives recognized the need for internal reforms.

Factors Contributing to Positive Changes

  • Factors in the business world, independent of recent abuses, made the timing of Sarbanes-Oxley enactment fortuitous.
  • Frantic mergers and acquisitions, incompatible information technologies, flawed electronic security, foreign expansion, business alliances, and supply chain complexities rendered operations and reporting opaque.
  • Sarbanes-Oxley prompted a stocktaking in companies, leading to the identification of weaknesses and the need for internal reforms.

Leveraging Sarbanes-Oxley for Improvement

  • In year two of compliance, many organizations are still struggling to find the time and resources to simplify and standardize processes and systems.
  • However, some forward-thinking executives have leveraged Sarbanes-Oxley to implement improvements in key areas.
  • Companies are standardizing and consolidating financial processes, eliminating redundant information systems, automating manual processes, and integrating far-flung offices and acquisitions.
  • SOX-inspired procedures are becoming a template for compliance with other statutory regimes.

Strengthening the Control Environment

  • Good governance requires a strong control environment, which forms the foundation of internal control.
  • Demonstrating a strong control environment can reduce the overall scope of internal-control evaluation, resulting in lower compliance costs.
  • Conducting internal surveys, emphasizing fraud prevention, internal control, and regulatory compliance, and implementing ethics training can contribute to a strong control environment.
  • Investor rating services assess the control environment, impacting investor sentiment and the company’s cost of capital.

Improving Documentation

  • Sarbanes-Oxley’s requirements for CEOs and CFOs to personally attest to the effectiveness of internal control over financial reporting have increased the importance of documentation.
  • Documentation efforts have helped companies define responsibilities, facilitate training and oversight, and improve employees’ understanding of operations.
  • Updating documentation processes has revealed inadequate controls and led to the implementation of missing control activities.

Increasing Audit Committee Involvement

  • Sarbanes-Oxley has increased the legal liability and workload of directors, resulting in more engaged audit committees.
  • Audit committees are now required to be free of most financial and personal ties to the company, and at least one member should be a “financial expert.”
  • Directors take their new responsibilities seriously, as evidenced by longer and more frequent committee meetings and more pointed questions.

Exploiting Convergence Opportunities

  • Some companies combine Sarbanes-Oxley compliance with other regulatory obligations to gain efficiencies and reduce costs.
  • Identifying commonalities among statutory regimes enables the use of a single set of controls for compliance.
  • RSA Security, for example, found convergence opportunities in employee record keeping, resulting in streamlined controls and cost savings.

Conclusion

Sarbanes-Oxley, despite its initial burdens, has brought unexpected benefits to companies. It has prompted positive changes in governance, management practices,.

Additional Resources on Sarbanes-Oxley and Corporate Governance:

Websites and Online Resources:

  1. U.S. Securities and Exchange Commission (SEC) – Sarbanes-Oxley Act: The official website of the SEC provides comprehensive information on the Sarbanes-Oxley Act, including regulatory guidance, rules, and related resources. Link to the SEC website
  2. Financial Executives International (FEI): FEI is a leading professional association for senior financial executives. Their website offers valuable insights, articles, and resources on corporate governance, compliance, and financial management topics. Link to the FEI website

Books:

  1. “Sarbanes-Oxley for Dummies” by Jill Gilbert Welytok and Daniel Ichelson: This book provides a beginner-friendly introduction to the Sarbanes-Oxley Act, its implications, and its impact on corporate governance and management practices. Link to the book on Amazon
  2. “Sarbanes-Oxley and the Board of Directors: Techniques and Best Practices for Corporate Governance” by Michael Overly and Michael Overly: This book focuses on the role of the board of directors in Sarbanes-Oxley compliance and provides practical guidance for implementing effective corporate governance practices. Link to the book on Amazon

Academic Journals and Research Papers:

  1. “The Unintended Consequences of the Sarbanes-Oxley Act” by Alexander Dyck, Adair Morse, and Luigi Zingales: This academic paper explores the unintended consequences of the Sarbanes-Oxley Act and its impact on corporate behavior, market liquidity, and small businesses. Link to the research paper
  2. “The Impact of the Sarbanes-Oxley Act on Audit Fees” by Chan Li and Efrim Boritz: This research paper analyzes the effects of Sarbanes-Oxley on audit fees and the cost of compliance for companies, providing insights into the economic implications of the legislation. Link to the research paper

Reports and Studies:

  1. PricewaterhouseCoopers (PwC) – Sarbanes-Oxley: Strengthening Corporate Governance: PwC offers a comprehensive report on Sarbanes-Oxley, covering its impact on corporate governance, best practices, and compliance strategies. Link to the PwC report
  2. Deloitte – The Benefits of Sarbanes-Oxley: Deloitte’s report explores the unexpected benefits and positive changes brought about by Sarbanes-Oxley, including improvements in internal control, risk management, and investor confidence. Link to the Deloitte report

Professional Organizations and Associations:

  1. National Association of Corporate Directors (NACD): NACD provides resources, research, and insights on corporate governance best
25 Apr 2022

Sarbanes-Oxley Act: Protecting Investors with Stricter Regulations

Categories Sarbanes–Oxley Act

Introduction The Sarbanes-Oxley Act of 2002, also known as the SOX Act, was enacted by the U.S. Congress on July 30, 2002. Its primary goal is to safeguard investors from fraudulent financial reporting practices by corporations. In response to high-profile scandals involving companies like Enron Corporation, Tyco International plc, and WorldCom, the act introduced significant reforms to existing securities regulations and established severe penalties for offenders.

Background The financial scandals of the early 2000s severely damaged investor confidence and revealed the need for comprehensive regulatory standards. These scandals, involving prominent publicly traded companies, exposed the lack of transparency and integrity in corporate financial statements. Consequently, there was a widespread demand for substantial changes to prevent such abuses in the future.

Key Takeaways To understand the impact and significance of the Sarbanes-Oxley Act, consider the following key points:

  1. The act was a response to highly publicized corporate financial scandals in the early 2000s.
  2. It introduced stringent rules for accountants, auditors, and corporate officers and imposed stricter recordkeeping requirements.
  3. The act established new criminal penalties for violating securities laws.
  4. It is named after its sponsors, Senator Paul S. Sarbanes (D-Md.) and Representative Michael G. Oxley (R-Ohio).

Understanding the Sarbanes-Oxley Act The Sarbanes-Oxley Act amended and supplemented existing laws related to securities regulation, such as the Securities Exchange Act of 1934, which is enforced by the Securities and Exchange Commission (SEC). The act addressed reforms and additions in four main areas:

  1. Corporate Responsibility: The act imposed greater accountability on corporate executives and board members for financial reporting accuracy and fraud prevention.
  2. Increased Criminal Punishment: Stricter penalties were introduced for securities law violations, including fines and imprisonment for individuals involved in fraudulent activities.
  3. Accounting Regulation: The act enhanced the independence and integrity of auditors, ensuring accurate and reliable financial statements through improved oversight.
  4. New Protections: The act implemented measures to safeguard whistleblowers and protect them from retaliation for reporting fraudulent activities.

Major Provisions of the Sarbanes-Oxley Act The Sarbanes-Oxley Act is a comprehensive piece of legislation. Three notable provisions are frequently referenced:

  1. Section 302: This section emphasizes corporate responsibility by requiring senior executives to personally certify the accuracy of financial statements.
  2. Section 404: Section 404 mandates the establishment and assessment of internal controls to ensure the reliability of financial reporting.
  3. Section 802: This section addresses penalties for destroying, altering, or falsifying records, emphasizing the importance of accurate recordkeeping.

By enacting the Sarbanes-Oxley Act, the U.S. government aimed to restore investor confidence, promote transparency in corporate financial reporting, and deter fraudulent practices. The act remains a crucial regulatory framework for protecting investors and maintaining the integrity of the financial markets.

Sarbanes-Oxley Act of 2002: Strengthening Corporate Accountability

Section 302: Personal Certification of Financial Statements Under Section 302 of the Sarbanes-Oxley (SOX) Act of 2002, senior corporate officers are required to personally certify, in writing, that the company’s financial statements adhere to SEC disclosure requirements and accurately present the issuer’s financial condition and operating results. Key points regarding Section 302 include:

  • Personal certification: Senior officers must personally certify the accuracy of financial statements.
  • Criminal penalties: Officers who knowingly certify false financial statements can face criminal penalties, including imprisonment.

Section 404: Establishing Internal Controls Section 404 of the SOX Act of 2002 focuses on establishing robust internal controls and reporting methods to ensure the adequacy of those controls. While some critics argue that the requirements of Section 404 can be burdensome for publicly traded companies, it plays a crucial role in maintaining transparency and reliability. Key points about Section 404 include:

  • Internal controls: Companies must establish effective internal controls and reporting methods.
  • Ensuring adequacy: The goal is to ensure that internal controls are sufficient to safeguard against fraudulent activities and inaccuracies in financial reporting.

Section 802: Recordkeeping Requirements Section 802 of the SOX Act of 2002 addresses recordkeeping standards and contains three rules that affect record retention and preservation. These rules play a vital role in maintaining accurate and reliable business records. Key points regarding Section 802 include:

  • Destruction and falsification: The first rule prohibits the destruction or falsification of records.
  • Retention period: The second rule specifies the retention period for storing records.
  • Required records: The third rule outlines the specific business records that companies must retain, including electronic communications.

Information Technology (IT) Requirements In addition to financial aspects, the SOX Act of 2002 also sets requirements for information technology (IT) departments concerning electronic records. While it doesn’t dictate specific business practices, it defines the records that must be maintained and their retention period. Key points about IT requirements under the act include:

  • Recordkeeping responsibility: The IT department is responsible for storing the specified company records.
  • Storage methods: The act does not prescribe specific storage methods but emphasizes the importance of proper record storage.

By enacting the Sarbanes-Oxley Act of 2002, the U.S. government aimed to enhance corporate accountability and restore investor confidence. The act’s provisions, such as personal certification of financial statements, establishment of internal controls, and recordkeeping requirements, play a crucial role in promoting transparency, accuracy, and integrity within organizations.

Further Resources: Authoritative Sources on the Sarbanes-Oxley Act

  1. U.S. Congress: The official website of the U.S. Congress provides access to the Sarbanes-Oxley Act of 2002 itself, allowing readers to delve into the legislation and its specific provisions. Visit: www.congress.gov
  2. Securities and Exchange Commission (SEC): The SEC’s website offers detailed information on the Sarbanes-Oxley Act, including interpretive guidance, regulations, and enforcement actions related to Sections 302, 404, and 802. Visit: www.sec.gov
  3. Public Company Accounting Oversight Board (PCAOB): The PCAOB’s website provides additional insights into the Sarbanes-Oxley Act, focusing on auditing standards, internal control requirements, and the impact on auditors. Visit: www.pcaobus.org
  4. American Institute of Certified Public Accountants (AICPA): The AICPA offers resources that delve into the practical implications of the Sarbanes-Oxley Act for accountants, auditors, and corporate officers. Their publications and guidance materials can provide valuable insights. Visit: www.aicpa.org
  5. Financial Accounting Standards Board (FASB): The FASB’s website provides information on accounting standards and interpretations related to the Sarbanes-Oxley Act, offering guidance on compliance and financial reporting. Visit: www.fasb.org
  6. Law Journals and Legal Databases: Access academic and legal publications, such as law journals, through databases like LexisNexis, Westlaw, or HeinOnline. These sources often contain scholarly articles and analyses of the Sarbanes-Oxley Act’s impact and effectiveness.
  7. Professional Accounting and Finance Publications: Explore resources from reputable accounting and finance publications, such as The Journal of Accountancy, Financial Management Magazine, or Harvard Business Review. These publications often cover topics related to the Sarbanes-Oxley Act and provide insights from industry experts.

Remember to verify the credibility and relevance of sources, especially when referencing legal and financial matters, by considering the reputation of the publishing organization, the expertise of the authors, and the timeliness of the information provided.

03 Mar 2022

Protecting Whistleblowers: Understanding Sarbanes-Oxley and Retaliation Safeguards

Categories Uncategorized, Sarbanes–Oxley Act

The Sarbanes-Oxley Act and Whistleblower Protections

The Sarbanes-Oxley Act, commonly known as Sarbanes-Oxley, is a federal law enacted to establish higher standards for public company boards, management, and public accounting firms. Its primary goal is to promote business ethics and prevent fraud within the corporate sector. One crucial aspect of Sarbanes-Oxley is the protection it offers to whistleblowers, individuals who report fraudulent activities or ethical violations within their organizations.

Requirements for Public Companies

Under Sarbanes-Oxley, public companies are mandated to adopt a business ethics code and establish an internal reporting procedure to handle employee reports of fraud or ethical misconduct. This procedure ensures that whistleblower reports are appropriately reviewed and addressed. Both the corporation as a whole and individual employees can be held accountable under this law. Sarbanes-Oxley is enforced through administrative, civil, and criminal means, ensuring that violations are appropriately dealt with.

Applicability and Liability

Sarbanes-Oxley applies to a wide range of companies. It covers all domestic public companies and non-public companies that have publicly traded debt securities. Furthermore, certain sections of the law also apply to companies that conduct business with publicly traded companies, even if they themselves are not publicly traded. It’s worth mentioning that subsidiaries of covered public companies can be held liable if they retaliate against whistleblowers under specific circumstances.

Protection for Whistleblowers

One of the notable provisions of Sarbanes-Oxley is its protection for whistleblowers working in covered companies. Whistleblowers are safeguarded when they disclose information that they reasonably believe demonstrates a violation of federal securities law, rules set by the Securities and Exchange Commission (SEC), or any federal law related to shareholder fraud.

Summary

In summary, Sarbanes-Oxley is a federal law that establishes higher standards for public companies and aims to prevent fraud and unethical practices. It provides protections for whistleblowers who report violations within their organizations. By requiring companies to have an internal reporting procedure and imposing liability on both corporations and individuals, Sarbanes-Oxley ensures accountability and promotes a more ethical business environment.

Whistleblower Protection Against Retaliation under Sarbanes-Oxley

Sarbanes-Oxley, specifically Section 806 codified at 18 U.S.C. § 1514A, provides crucial protection for employees of public companies who face retaliation due to their disclosures relating to mail, wire, bank, or securities fraud. This section establishes a civil cause of action for whistleblowers. To pursue a whistleblower claim, you must file a written complaint with any office of the Occupational Safety and Health Administration (OSHA), which operates under the Department of Labor, within 180 days of experiencing retaliation from your employer.

Elements to Prove in a Sarbanes-Oxley Claim

To succeed in a Sarbanes-Oxley claim, you need to demonstrate three key elements:

  1. Engagement in Protected Activity: You must show that you are an employee engaged in protected activity.
  2. Adverse Employment Action: You need to establish that a covered employer has taken adverse employment action against you.
  3. Causal Connection: The adverse employment action must be at least partly a result of the protected activity.

Deadline for Filing Complaints

To preserve your rights under Sarbanes-Oxley, it is crucial to file your complaint within 180 days of the alleged violation or from the date you became aware of the violation.

Definition of “Employee” and Protections

The definition of an employee for the purpose of whistleblower protection includes present or former employees, supervisors, managers, officers, and certain types of independent contractors working for a covered business. Former employees are protected if the protected activity occurred during their employment. Independent contractors are protected based on the level of control exerted by the covered company over their work.

Attorney-Client Privilege and Whistleblower Disclosures

Contrary to previous beliefs, even in-house attorneys can disclose information without violating attorney-client privilege. Privileged information can be admitted in a whistleblower proceeding to establish that the attorney was engaged in protected activity.

Definition of Protected Activity

Protected activity, as defined under Sarbanes-Oxley, is limited to internal complaints to supervisors, complaints to regulators, or complaints made in connection with an investigation into the company’s violation of federal rules related to shareholder fraud. Complaints solely focused on violations of state regulations, without any reference to potential federal regulation violations, do not qualify as protected activity under Sarbanes-Oxley.

Reasonable Belief and Articulation of SEC Violations or Fraud

While the employee can be mistaken in their belief, they must demonstrate that their belief was reasonable. Merely reporting a concern about a practice is insufficient; the employee must clearly articulate a reasonable belief that a specific practice constitutes an SEC violation or fraud that impacts shareholders to receive protection.

Adverse Employment Actions Covered

Adverse employment actions covered by Sarbanes-Oxley include termination, demotion, suspension, threats, harassment, or discrimination against an employee for lawfully providing information or assisting in an investigation regarding fraud or violations of SEC rules.

Remedies in a Successful Sarbanes-Oxley Action

In the event of a successful Sarbanes-Oxley action, you may be entitled to remedies such as reinstatement, back pay, attorneys’ fees and costs, as well as special damages, including non-economic damages like compensation for emotional distress.

Additional Resources for Whistleblower Protections under Sarbanes-Oxley

For further information on whistleblower protections under Sarbanes-Oxley, the following authoritative sources can provide valuable insights:

  1. U.S. Department of Labor – Whistleblower Protection Program
  2. Securities and Exchange Commission (SEC) – Whistleblower Program
  3. American Bar Association (ABA) – Section of Labor and Employment Law
  4. Cornell Law School Legal Information Institute – Sarbanes-Oxley Act
  5. Whistleblower Protection Blog
  6. Harvard Law School Forum on Corporate Governance – Whistleblower Protections

These sources offer reliable and comprehensive information that can further enhance your understanding of whistleblower protections under Sarbanes-Oxley.

12 May 2021

The Pros and Cons of the Sarbanes-Oxley Act

Categories SoxLaw

When Enron declared bankruptcy in 2001, it was one of the world’s largest corporate scandals. That year, they had over $63 billion dollars worth of assets and soon became a symbol for executive-level corruption after declaring bankruptcy only four years later. This large scandal was then followed by the Sarbanes-Oxley Act, which sought to avoid future scandals like this from happening again. 

Sarbox is a law passed by the United States Congress that aims to protect shareholders from fraud. The Sarbanes-Oxley Act of 2002, also known as SOX, strengthens corporate oversight and improves internal controls. These controls will hopefully protect investors against fraudulent financial statements provided by companies. One way SOX does this is by requiring independent third parties to verify company financials before they can be released. Such measures are welcome for many investors, though it may prove difficult for some businesses when complying with these requirements. 

The Sarbanes Oxley Act was put into place in response to accounting scandals at Enron and other corporations late in 2001, where management manipulated finances as well as kept secret off-balance-sheet debt obligations while reporting profits based on unrealistic assumptions about market prices. 

SOX was created to increase the transparency of how businesses are run and therefore make it easier for investors. However, this increased regulation has led many companies to outsource their jobs overseas in order to remain competitive when faced with high compliance costs. Point blank, this is a law that both helps and hinders investments. That being said, its main goal is to increase the company’s transparency through more stringent regulations on management practices. To help you and your business make an informed decision on how this will affect your business or investment strategy we’ve compiled the pros and cons of SOX which should give perspective on whether it’s worth supporting or not. 

The Pros

Table of Contents

  1. At All Times, Crucial Information Can’t Be Withheld From Shareholders

The Enron Corporation used a shady practice called mark-to-market accounting, also known as cooking the books, by hiding their losses. For example, if they built an asset, such as a power plant and predicted that it would make a profit before even earning any revenue from it and then actually made money, which was less than what was projected on paper, Enron transferred assets off the company’s ledgers into another corporation. These numbers were not accounted for at all. In other words, rather than hurt its bottom line with financials being reported accurately, the company would lose profits wouldn’t be devastating since no one knew about them except insiders who benefited from insider trading schemes. 

By requiring that all company reports be verified independently for accuracy, stockholders can rest assured knowing their investments have not been put at risk due to dishonest business activities like this one.

  1. The Need for Internal Controls is Vital 

The Sarbanes-Oxley Act of 2002 is a federal law that requires managers to perform internal control testing on their company’s financial statements. The idea behind this legislation was for the government and investors to be more aware if there are any management overrides happening, which led to an extensive investigation into Enron Corporation in 2001. 

In order to prevent the same internal controls that led to Enron’s downfall, management is required to test these controls quarterly and file a report on their effects. This prevents managers from manipulating transactions by placing checks and balances in place that can catch abnormalities before it becomes too serious of an issue for anyone involved. 

The Cons

  1. Sometimes, Smaller Companies Feel the Burden

SOX has been criticized by small public companies that are required to follow the same reporting rules as large, multinational corporations. Essentially, Section 404 states internal control procedures for all organizations but still leaves out the differentiation between company size and resources available. This leaves smaller companies with a difficult choice of either following SOX or spending their own money on additional external compliance measures they don’t have in place internally yet. 

One of the reasons that small businesses succeed is because they don’t have to worry about their IT. The around the clock support and flat-rate fee structure make it a low-cost, predictable expense with great benefits as well. With a managed service provider, you or your business doesn’t have to worry about constantly upgrading your technology. They’ll take care of everything from data backup and disaster recovery to providing technical support at all hours, so no matter what time it is or where you are in the world, at a fraction of the cost. 

  1. Audit Fees are Increased 

When auditors are forced to be more accountable for their audit reports, they have less time and resources available. This means that fees go up which allows them the time required for work with SOX compliance while covering additional liability from a data breach. One thing to consider is South Dakota, which is a state that has one of the strictest laws in regards to data breaches. In this state, companies are now able-bodies liable after any incident. So when the increased audit fee of SOX compliances is increased, ask yourself if your business can afford to pay $10,000 a day due to a data breach. 

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