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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
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.