Since the enactment of Sarbanes-Oxley in 2002 through April of this year, the Securities and Exchange Commission had collected more than $4.8 billion in disgorgement and civil monetary penalties under the Sarbanes-Oxley “Fair Fund” provision, according to a report from the Government Accountability Office. But distributing that money to harmed investors has proceeded slowly, added the GAO.
To be sure, the congressional watchdog’s report noted that the commission has been diligent in its attempts to apply the Fair Fund provision when possible. For example, a settlement that includes a disgorgement of just $1 can qualify a much larger monetary penalty for distribution to investors — as it did in the SEC’s $25 million settlement with Lucent last year.
The GAO also affirmed that the SEC staff “have successfully applied the Fair Fund provision in at least 75 cases” and collected money from 73. However, added the report, only about $60 million from just three of the cases has been distributed to investors so far, and another $25 million from one more case is in the pipeline.
What’s the holdup? In some cases, the GAO acknowledged, the status of a criminal case against a company or an individual has prevented the SEC from disbursing funds. In other cases, identifying the harmed investors and the appropriate restitution can be a lengthy process. The GAO also pointed the finger at the commission’s case-activity tracking system (CATS), which predates Sarbanes-Oxley and wasn’t designed to track Fair Funds data. “The agency is in the process of upgrading CATS to address the needs of a broader range of users,” noted the report, “and expects the project to be complete in 2008.”