About a month ago I suggested making SOX optional. Now Henry Butler and I have an article on this subject forthcoming in the December 22 Forbes.
Butler and I argue that the recent financial “crisis shows that SOX did not have the advertised payoff of flushing Enronesque risk out of the market.” So it’s not clear what shareholders got for all that money their firms spent on SOX. We suggest that it’s time to try an alternative: “SOX would remain, but firms could have their shareholders vote to opt out of some or all of its provisions. Or firms going public could opt out of SOX and let potential investors decide whether to buy their shares.”
We also make the connection with “say on pay:”
If shareholders should vote on pay, then why not on something that can have even more effect on profits. How about "Say on SOX"?
Our proposal meshes with another one that’s getting some recent play: Adam Pritchard’s idea to let shareholders vote to amend the charter to modify the application of the fraud on the market theory, an important underpinning of federal securities class actions. Pritchard’s idea has now turned into a shareholder proposal at Alaska Air (here's an article, discussed in PoL).
Shareholder proposals could be the mechanism for adopting SOX opt-outs, too. Of course SOX would have to be amended before such proposals would have an effect.
So there you have it: shareholder choice vs mandatory federal protection. Using the corporate governance provisions of the securities laws (14a-8) to opt out of the anti-fraud provisions of the securities laws. As Henry and I concluded, “[i]t's time for the corporate governance reformers to decide what they really believe.”
Is it fair to say that the purpose of SOX was to flush out Enron-esque risk from the market? I don't think that this was ever the intention of the legislation (though the media may have portrayed it this way). It seems more appropriate to describe SOX as an attempt (arguably too-heavy-handed) to force a set of corporate governance standards (mandating all sorts of independence requirements) and business practice standards (the SOX 404 stuff), improve the accuracy and reliability of financial reporting (again, SOX 404, as well as rules regarding off-balance sheet transactions), and set up a stronger deterrence against fraud (though heavy-handed, the 302 and 906 certifications force CEOs and CFOs to "own up" and take responsibility for the company's financial statements).
This financial crisis was caused by bad business decisions. SOX was never intended to protect shareholders against (what now appear to be) bone-headed business decisions. It was, instead, (and I believe that you have rightly accused it of being) a bunch of band-aids meant to "dress up" some alleged corporate frauds that took place in the late 90s and early 00s.
As I think should be apparent, SOX was written as a band-aid to address specific things that certain companies did pre-SOX. In other words, I believe that each section of SOX was written in response to some corporate disaster that took place between 2000 and 2002. For example, the executives at Enron set up a complex set of off-balance sheet transactions to hide losses. Many of these types of transactions were hidden in obscure footnotes in Enron's SEC filings. The SOX rules were meant to require more disclosure of these types of transactions. In this current crisis, I don't believe that anyone has set up fraudulent off-balance sheet transactions in the same manner as Enron.
Posted by: James | December 05, 2008 at 03:08 PM