Title

Ninth Circuit Issues SOX Opinion—Approves Compensation Clawback Even for Executives Not Engaged in Misconduct
Client Memorandum

Created date

8/31/2016

Today, the Ninth Circuit issued an opinion in SEC v. Jensen.  The court held that Rule 13a-14 of the Securities Exchange Act confirms that the SEC has a cause of action against CEOs and CFOs who sign false or misleading certifications.  (Op. at 5, 24.)  Importantly, the court also held that Section 304 of the Sarbanes-Oxley Act (“SOX 304”) allows the SEC “to seek disgorgement from CEOs and CFOs even if the triggering restatement did not result from misconduct on the part of those officers.”  (Op. at 28 (emphasis added).)  Although the SEC has taken this position in prior settlements, the Ninth Circuit is the first Court of Appeals to endorse the SEC’s interpretation.