PCAOB Member: In Some Ways, SOX Inevitable

It isn't the acts of a single executive, or the misses of a particular audit team, that most concern Public Company Accounting Oversight Board member Charles Niemeier when he reflects back on the corporate scandals that resulted in the passage of the Sarbanes-Oxley Act.

"What really scares me about Enron is that so much of what they were doing was right," Niemeier said. "It was just that towards the end, they got sloppy."

Speaking at the New York State Society of CPAs' annual conference, which focuses on current developments under Sarbanes-Oxley, Niemeier told the audience that there's little doubt tweaks are coming for the law's internal controls provisions, and that the standards contained in the act will eventually be written in a more user-friendly fashion.

Throughout his presentation, Niemeier made a case that the accounting profession's flaws, displayed by business failures such as Enron and WorldCom, were of a cyclical nature as much as anything else.

The chief accountant in the division of enforcement at the Securities and Exchange Commission before joining the board in 2002, Niemeier said prior to Enron, the SEC was at one point investigating some 300 fraud cases, involving "scores" of Fortune 500 companies.

"Probably every 10 years or so, it seems that we've been going through the motions," Niemeier said. "What used to be effective no longer is."

Besides less of an emphasis being placed on the need for strong auditing and auditors, Niemeier said that a huge part of the environment pre-Sarbanes-Oxley, was that when auditors did look the other way, unless the company failed or the SEC launched an investigation, nothing would happen.

"There's nothing new in Sarbanes-Oxley," Niemeier said. "All that's in there has been in securities law before. What's changed is that now there's a policeman."

He said the law pushes boards to get engaged, auditors to do the actual work of the audit, management to really look at financial statements they are signing off on, and analysts to ensure that they were free from conflict. And while restatements and internal controls problems are still being reported in larger numbers, Niemeier said the law isn't allowing inaccurate financial statements a chance to snowball -- preventing, for instance, future earnings from being measured against inflated results.

Additionally, Niemeier dismissed worries over the number of initial public offerings happening outside the United States. He said that while one statistic -- that nine of the top 10 biggest dollar value IPOs this year had been offered in other markets -- has been trumpeted loudly by SOX detractors, a number of those include deals for major state-owned businesses going public. He said the exact opposite conclusions have been arrived at in Brazil since the country rolled out a new market in 2001 and 2002 that tightened controls for corporate governance and financial statements and has seen booming business.

Making a final point, Niemeier said that the greatest cost in U.S. markets is not in compliance, but in huge underwriting fees. "High investor confidence in the market leads to a premium," he said. Or, in other words, investor confidence in realizing a return-on-investment often manifests itself in a paying a price upfront.

"It's not about SOX or the United States," Niemeier said. "It's about a changing global economy. Short term-ism is a disease we sometimes have [in this country]."

Niemeier ended his talk by exhorting small companies to take advantage of the delays in the government's official implementation of the Section 404 internal controls provisions for smaller public companies. He said that he has heard anecdotally from a number of CPAs that their small business clients are still being slow to prepare for documenting their controls -- in whatever form the tweaking of SOX might require such documentation to take.

"I can't predict the future," Niemeier said. "But that's not the way of looking at this. Internal controls are about risk management and being efficient in that process ... we're going to get there."