Draft Bill Before the Senate DOES NOT INCLUDE 404(b) Delay?

Posted by Teresa Bockwoldt on March 17, 2010

The omnibus financial reform bill (H.R. 4173) or the "Wall Street Reform and Consumer Protection Act of 2009" was passed by the House of Representatives via a vote of 223-202 on December 11, 2009.  This bill would seek to permanently grant a 404(b) reprieve for non-accelerated filers (those with a market capitalization below $75 million).  The bill must now be passed by the Senate to be put into law and their vote has yet to be scheduled.  As it stands now, non-accelerated filers must comply with 404(b) by June 15, 2010; 404(a) has been in effect since 2007 and is not in debate.

We are investigating the report below now and we will keep you posted. The post below is confusing to us because it speaks mainly about a delay and not the repeal.  Check back soon for more information.  

From Thomson Reuters (thomsonreuters.com):

Thursday, March 18, 2010 7:42 AM
Reform plan makes no room for SOX 404(b) delay

Summary: The financial reform bill the House passed in December included an amendment to delay compliance with SOX Section 404(b). The draft of the bill before the Senate has no such provision. It may take months to see whether the delay makes it to the final version of the bill that emerges from the House-Senate conference.

From the moment Congress embarked on its plan to overhaul the U.S.  financial regulatory system, the question of small-company compliance with Section 404(b) of the Sarbanes-Oxley Act of 2002 has been batted around like a volleyball. Now that the latest version of the reform bill has emerged from the Senate Banking Committee, questions about Section 404(b)'s future are bound to be asked in earnest. Unlike the reform bill that passed the House in December, the legislation before the Senate has no provision to delay Section 404(b) compliance.

The House bill also requested the SEC and Government Accountability Office to produce a report on small company compliance by June. Nonaccelerated filers, meaning public companies with floats less than $75 million, are being given until June 2011 to comply with Section 404 (b). Whether other senators friendly to small business will push for the deferral to be added to the bill is not certain.

Victoria Ekstrom, a spokeswoman for the Senate Committee on Small Business and Entrepreneurship, said she does not know if the committee or any of its members will push to include the Section 404 (b) delay. Sen. Mary Landrieu (D-LA) chairs the committee. Sen. Olympia Snowe (D-ME) is the ranking member.

The absence of the Section 404(b) exemption is “unfortunate,” said National Small Business Association spokeswoman Molly Brogan. “Despite the good intentions of enhancing accountability and compliance, Section 404(b) compliance for small businesses is extremely burdensome and costly,” she said. 

Most companies can expect to encounter few problems with Section 404(b), said Gordon Weber, a partner in the Minneapolis office of law firm Faegre & Benson. But documentation may prove to be a sore spot.  “The level of documentation and verification that is required just becomes excessively costly for them,” he said. Weber said if the exemption does not make it to the final reform bill signed by President Obama, the SEC and Congress will probably hear plenty of complaints. Small businesses spent years asking for, and usually getting, deferrals, and they are bound to continue lobbing lawmakers and regulators.

The PCAOB's Auditing Standard No. 5, (AS 5), An Audit of Internal Control Over Financial Reporting That Is Integrated with An Audit of Financial Statements, was designed to get auditors to focus on the riskiest portion of a company's internal controls and prepare the way for small company compliance with the management reports in Section 404(a) and the auditor attestations for Section 404(b).  

Weber said AS 5 was a positive step, but regulators could do more to help small companies. “I think smaller companies are not opposed to the idea of having the independent auditors do something,” he said. “But they still want it to be better scaled to the size of their operations.”

Tags: Non-accelerated filer 404(b) information