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How Are You Liable Under The Sarbanes Oxley Act
by: Earl Powers
With the passage of the Sarbanes Oxley Act, two different legal routes for punishment were created, one for criminal penalties and one for civil penalties.
The civil penalties for the Sarbanes Oxley Act are listed under 15 U.S.C. §7241 (Section 302). These penalties are designed to make certain full and accurate financial disclosure is made, and requires signing officers to be personally accountable for the papers they are signing off on. Implicitly under the Sarbanes Oxley Act, they are agreeing that they're responsible for establishing and maintaining internal controls, and that they have ensured that all of a company's material information necessary for investors to make intelligent decisions is made known by internal procedures of the company.
This guarantees that, unlike the MCI and Enron officers of yesterday, tomorrow's executives cannot plead ignorance. If they are ignorant of the daily finances of their own company, they have no one but themselves to blame. After all, they were the ones who designed the internal controls and promised to ensure these controls worked properly.
In addition, under the Sarbanes Oxley Act officers are required to evaluate the effectiveness of these controls, and to report on their conclusions after the testing.
Section 404 also requires that management produce an internal control report for each annual Exchange Act report. These reports guarantee every year that management signed off for responsibility on under the requirements of the Sarbanes Oxley act. Ultimately, Congress has made the SEC responsible for ensuring regulations related to these provisions are communicated and enforced.
Criminal Penalties for Violating the Sarbanes Oxley Act
Criminal penalties for the Sarbanes Oxley Act are found under 18 U.S.C. §1350 (Section 906). Among them are:
1. a whistleblower's protection clause;
2. a clause invoking criminal penalties if corporations destroy, alter, or conceal documents relating to a criminal or civil investigation by the Federal government, or that relate to a bankruptcy proceeding;
3. a clause extending criminal liability to accountants who do not maintain a complete audit paper trail.
Federal mail fraud statutes have been extended to cover many fraudulent business practices associated with the Sarbanes Oxley Act and very serious criminal as well as civil penalties for corporate officers who certify financial statements as accurate when they are aware that these statements are not.
Corporate officers are highly liable in many phases of the Sarbanes Oxley Act. Moreover, ignorance is not an acceptable excuse. Corporate officers are expected to be accountable for the contents of anything they sign off on, and if they don't know what's in the document it's considered to be their own fault.
Oddly, the one item not specifically listed as making you liable for either civil or criminal penalty is not signing off on financial statements at all. This may be to prevent corporate officers who dispute the accuracy of a statement from being damaged by someone else's errors.
In order to protect yourself from penalties in the Sarbanes Oxley Act, you should get some sort of training on how the Sarbanes Oxley Act affects you specifically. For larger corporations, complete training for each section of your company affected, as well as overall training to let each section know how the Sarbannes-Oxley Act affects the company at large, is recommended.
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