SEC Announces Enforcement Cases on Public Company Internal Controls

On January 29, 2019, the SEC announced four settlements with publicly-traded companies for failure to maintain adequate internal control over financial reporting.

None of the companies was charged with making false or inaccurate statements, either about its ICFR or otherwise; indeed, each had repeatedly disclosed material weaknesses in ICFR over many years.

These cases are interesting for at least three reasons:

• They were announced together to send a message about the SEC’s focus on its agenda to strengthen accounting and controls at public companies.
• The cases are about controls, and not about disclosure. Material weaknesses in ICFR are not just a disclosure issue: a continuing failure to maintain adequate controls is a violation of law, even if the failure is fully disclosed and there is no other disclosure problem.
• The cases join several recent instances in which the SEC has shown a willingness to use the internal controls provisions of the Securities Exchange Act of 1934 independently of specific disclosure requirements.

This article was republished as, “SEC Emphasizes Internal Controls Over Disclosure,” by Law360 on March 4, 2019, and as, “SEC Enforcement for Internal Control Failures,” by the Harvard Law School Forum on Corporate Governance and Financial Regulation on March 7, 2019.