At the final meeting yesterday of the SEC Committee on Small and Emerging Companies (apparently soon to morph into the Small Business Capital Formation Advisory Committee), the Committee finalized the discussion draft of its Final Report to the SEC and heard presentations on SOX 404(b), the most recent bête noire of deregulation advocates. (The Committee also heard a presentation on Rule 701, which will be addressed in a subsequent post.)
It’s not just Dodd-Frank that has been roundly disparaged in some quarters, SOX 404(b)—the requirement to have an auditor attestation and report on management’s assessment of internal control over financial reporting—has also recently been much maligned. For example, at a recent House subcommittee hearing devoted to the reasons for the decline in the number of IPOs and public companies, a majority of the subcommittee members attributed the decline largely to regulatory overload, with a number of the witnesses training their sights directly on SOX 404(b). (See the SideBar below.) And then there are the legislative efforts to limit the application of SOX 404(b), such as the provision in the Financial Choice Act to allow certain time-lapsed EGCs another five-year exemption from the audit-attestation requirement. (See this PubCo post.) Whether you view these efforts as heavy-handed or not enough of a good thing, the notion that internal controls might diminish fraud risk remains controversial: some maintain that they are a strong deterrent, while others challenge that contention in light of management’s ability to override controls. A recent study by academics in Texas analyzed whether the strength of internal control significantly affects fraud risk. The result: the study found “a strong association between material weaknesses and future fraud revelation,” leading to the authors’ conclusion that “control opinions that do cite material weaknesses provide a meaningful signal of increased fraud risk.”
What’s next for the House after taking on Dodd-Frank in the Financial CHOICE Act? Apparently, it’s time to revisit SOX. The Subcommittee on Capital Markets, Securities, and Investment of the House Financial Services Committee held a hearing earlier this week entitled “The Cost of Being a Public Company in Light of Sarbanes-Oxley and the Federalization of Corporate Governance.” During the hearing, all subcommittee members continued bemoaning the decline in IPOs and in public companies, with the majority of the subcommittee attributing the decline largely to regulatory overload. A number of the witnesses trained their sights on, among other things, the internal control auditor attestation requirement of SOX 404(b). Is auditor attestation, for all but the very largest companies, about to hit the dust?
by Cydney Posner A draft of the Financial CHOICE Act of 2017 (fka version 2.0), a bill to create hope and opportunity for investors, consumers, and entrepreneurs — a masterpiece of acronyming — has just been released (and weighs in at 593 pages). The bill, sponsored by Jeb Hensarling, Chair […]
by Cydney Posner With Congress and the Presidency soon in Republican control, look for the Financial CHOICE Act (or perhaps an enhanced version) to be re-introduced in the next Congress. The bill, sponsored by Jeb Hensarling, Chair of the House Financial Services Committee, was framed as a Republican proposal to […]
by Cydney Posner Without holding an open meeting, the SEC has proposed changes to the definition of a “smaller reporting company” that would raise the financial cap from “less than $75 million” in public float to “less than $250 million,” allowing more companies to take advantage of the scaled disclosures […]
by Cydney Posner A discussion draft for the Financial CHOICE Act is now publicly available. Many of the provisions of interest from a corporate standpoint are in Title IV—Capital Markets Improvements and Title X—Unleashing Opportunities for Small Business, Innovators, and Job Creators by Facilitating Capital Formation. (It doesn’t exactly unleash […]