February 4, 2008

SEC Proposes Further Section 404 Delay

The SEC has proposed yet another one-year delay in implementation of an independent auditor’s attestation report on the internal controls for the smallest public companies. As noted in the blog at the end of last year, Chairman Cox had promised this delay in his testimony before the House Committee on Small Business.

Under the proposal, non-accelerated filers would be required to provide auditor’s attestation reports beginning with their annual reports filed for fiscal years ending on or after December 15, 2009. The proposal does not affect the requirement that management complete its own assessment of internal control over financial reporting – which is now required for all filers, regardless of size. The proposing release is out for a 30-day comment period.

The proposed delay in fully implementing Section 404(b) – to over seven years after Sarbanes-Oxley was enacted – coincides with an announcement that the Staff has commenced its previously discussed study of the costs and benefits associated with the auditor attestation requirement for smaller companies. This is supposed to be an analysis of “real world” data in order to measure experience with the recent SEC and PCAOB guidance for management and auditors. The final results of the study are not expected for several months.

Yet Another PIPEs Case Gone Bad

Something else the SEC should consider studying (and fast) is why it keeps getting its critical Securities Act Section 5 claims dismissed in federal District Courts across the land. I recently blogged about the dismissal of the SEC’s Section 5 claims in the case of SEC v Edwin Buchanan Lyon, IV. Only a few weeks after that setback, a judge in the Eastern District of Pennsylvania dismissed similar Section 5 claims in SEC v. Berlacher.

Unfortunately, with these decisions now coming in fast and furious, hedge funds that short in anticipation of PIPEs and then cover with the registered securities are emboldened to continue that strategy in the absence of any swift SEC action to protect the legal position.

I will be discussing these cases in more detail with the great panelists on our webcast – “The ‘Former’ SEC Staff Speaks” – coming up this Wednesday.

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– Dave Lynn