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Federal Courts Adopt Narrow Constructions of Sarbanes-Oxley Legislation
Complex and systemic, the current financial crisis is nearly certain to yield extensive legislation regulating everything from the financial markets to mortgage brokers to ratings agencies. Any such legislation may raise interpretive issues similar to those that have arisen in recent Federal Court decisions interpreting section 304 and section 1514A(a)(1) of the sweeping Sarbanes-Oxley Act of 2002 (“SOX”). Although these sections cover very different subjects, the manner in which the courts strictly construed, and thereby limited the reach of, these sections may provide insight into how Federal Courts will apply any broad powers granted by the looming round of legislation.
SOX Section 304
Section 304 of SOX provides for “the forfeiture of certain bonuses and profits by corporate officers who fail to comply with securities law reporting requirements.” In both In re Digimarc Corporation Derivative Litigation (2008 WL 5171347 (9th Cir. 2008)), and U.S. v. Shanahan (2008 WL 5211909 (E.D. Mo.)), Federal Courts narrowly interpreted SOX section 304. In Digimarc, the Ninth Circuit found that section 304 does not create a private right of action on the part of shareholders of affected corporations. In Shanahan, the U.S. District Court for the Eastern District of Missouri determined that section 304 requires the “actual filing of restated accounting reports” before its provisions will apply.
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Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
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