As stated in the FCPA Guidance, Exchange Act Rule 13b2-2 “prohibits officers and directors from making (or causing to be made) materially false or misleading statements, including an omission of material facts, to an accountant. This liability arises in connection with any audit, review, or examination of a company’s financial statements or in connection with the filing of any document with SEC.”
The SEC (and DOJ) often talk about the best ways to “empower” compliance professionals within a business organization.
If Rule 13b2-2 were amended to include a related prohibition of making materially false or misleading statements, including omissions, to a compliance professional in connection with a compliance review or related tasks – would compliance professionals be more “empowered”? Granted “compliance professionals” is a rather imprecise term, but then again so is accountant.
While pondering this question, recently the SEC announced this enforcement action James Thompson (the former CEO of Spyr. Inc.), Barry Loveless (the company’s former CFO) and James Mylock Jr (a director) “for making false and misleading statements to Sypr’s auditors.”