SEC can partly roll back Sarbanes-Oxley: Oxley

Reuters
SEC can partly roll back Sarbanes-Oxley: Oxley
By Joel Rothstein

WASHINGTON (Reuters) - U.S. Rep. Michael Oxley, an author of the Sarbanes-Oxley corporate reform law passed after Enron and other corporate scandals, said federal regulators have the legal authority to roll back key provisions for smaller U.S. public companies, according to a letter released on Friday.

A Securities and Exchange Commission advisory panel recently urged the elimination of the law's stiff internal controls accounting requirements -- known as Section 404 -- for companies under a certain size. Companies of all sizes have complained the requirement is costly and burdensome.

Oxley's letter to SEC Chairman Christopher Cox was prompted by at least one panel member, who questioned if the SEC had legal authority to adopt the recommendation.

"We write to support the view that the Commission currently possesses the authority to provide relief from the provisions of the Sarbanes-Oxley Act" under the Securities and Exchange Act of 1934 as well as the Sarbanes-Oxley law, the letter said.

The letter addressed only the SEC's legal authority and not the substance of the proposed reforms.

It was signed by Oxley, the retiring chairman of the House Financial Services Committee; and by Louisiana Republican Richard Baker, chairman of a Financial Services subcommittee.

SEC advisory panel member Kurt Schacht, director of the CFA Center for Financial Market Integrity, dissented last month, writing that "it is unclear to many whether the broad exempting recommendations of this subcommittee are even within the commission's legal authority."

"Comprehensive, sweeping exemptions from Section 404 may not be possible under the current legislation, which specifically excluded Section 404 from the Securities and Exchange Act of 1934," Schact also wrote.

While Oxley and Baker acknowledged in their letter that Section 404 is not "a provision included in the Exchange Act," they noted that the two laws "must be construed together."

Section 404 requires U.S.-listed companies to explain their internal controls publicly each year and have outside auditors attest to the controls' effectiveness.

Georgetown University law professor Donald Langevoort said last month that while the panel is recommending major revisions to the Sarbanes-Oxley law, he saw nothing "inappropriate" in the way it was proceeding.

Investor advocate Barbara Roper told Reuters that regardless of the law, the recommendations are outside the advisory panel's original charter.

"There is a big difference between making this work for smaller companies and eliminating the requirements altogether. They were supposed to come up with suggestions on how to make this work," said Roper, director of investor protection at the Consumer Federation for America.

The advisory panel's charter said that its objective was to assess current securities regulations for smaller public companies "and to make recommendations for changes."

The panel's recommendations defined "smaller public companies" as those with market capitalizations under $787 million. Those companies account for 80 percent of all U.S. public companies.

The panel urged the SEC to give a complete exemption from Section 404 requirements to micro-cap companies with less than $125 million in annual revenue, and to small-cap companies with less than $10 million in annual revenue.

The committee defines companies with market capitalization under $128 million as "micro-cap companies" and those with market capitalization between $128 million and $787 million as "small-cap companies."

Small-cap companies with annual revenue between $10 million and $250 million would also be exempt from the external audit requirements of Section 404 under the recommendations.