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SOX Lowers the Bar for Barring Directors and Officers
Banishment from the public company world — through the enforcement of a D&O bar – used to be an extreme remedy for management misconduct. Now, the trend has turned, with Sarbanes-Oxley (SOX) and the current enforcement climate leading to a flood of requests for bars. In 2000, the SEC asked federal courts to impose 38 D&O bars, 7.5% of the cases initiated that year. In 2001, the SEC asked for 51 D&O bars, or 10.5%. In 2002, in the wake of corporate scandals that gave rise to Sarbanes-Oxley, the SEC requested 126 D&O bars, in 21% of initiated actions. In 2003, that number shot up to 170, in 25% of cases. As Stephen Cutler, the head of the SEC's Enforcement Division, recently explained, the SEC is “aggressively” seeking D&O bars “in expanded ways.” http://www.sec.gov/news/ speech/spch092004smc.htm. Practitioners are now finding D&O bars to be a routine component of settling an SEC action.
While the SEC's zeal is undeniable, the agency's emphasis on D&O bars has raised questions about this sanction. What standards apply in deciding whether to impose a D&O bar? What does a D&O bar actually prohibit? What happens if a D&O bar is violated?
Pre-SOX: The 'Substantial Unfitness' Test
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