Posts Tagged SOX

Innovation Interrupted?

Michael Mandel writes in his June 3rd cover story for Business Week that “During the past decade, innovation has stumbled. And that may help explain America’s economic woes”. From Facebook to flat-screen televisions, we’ve been lead to believe that we’ve entered into a new age of innovation unmatched by the past.

But like Mandel, I disagree. I think we’re spinning our collective wheels. Biotech, alternative energy, health care, and in almost every other industry, has produced little impact on the innovation front. While we’re all still enamored with the Internet, social networking, and cloud computing, old and inefficient systems in other key industries have remained in stubborn place. The US government owns 60% of GM as a result. This is one example in a sea of many sad cases.

Then there is the problem of rebranding. While I believe that corporate America has had opportunities to make real impact, they’ve taken the straighter path to profits by rebranding old models and technology. Cereal, automobiles, and financial products come to mind.

Perhaps motivation and risk tolerance have taken a hit. The dot-com burst, 9/11, Enron, and the housing crisis are all black-swan type of events that have the ability to change the way people think and do business.

  • After the dot-com bubble burst, investors steered clear of companies that had no product, no customer base, and no real ROI plan (ok, this is a good thing). Where would the speculators place their efforts next? Housing?

  • After 9/11, US foreign policy became a sticking point for many foreign investors, who perhaps don’t like to be told “us or them”.

  • Enron led to Sarbanes-Oxley, an innovation choker that had (and has) the potential to punish organizations for taking R&D risks. But Enron and other failures of its time exposed some serious flaws in how US companies are allowed to run their finance departments.

  • And while people were making money in the late 90s and in the early part of this decade, banks were lending to anything with a heartbeat. The Fed was a major facilitator, keeping interest rates too low. The resulting foreclosure rate today is unbelievable (how many on average per minute?). Investors — including banks — will be far tighter with credit, stifling innovation even more.

Moving Forward

I would like to see the US — and other nations — create an Office of Innovation. I would like to see companies (private and public) free to explore new R&D projects. I would like to see universities continue to get large grants for scientific study and research. And I would like to see more kids enter the fields of science and mathematics.

I would also like to be alive when quantum computing becomes reality.

Things are generally slower in mainland Europe (as I can attest), so the EU has to double their efforts on the innovation front. While the European Commission has a good innovation policy, and has recognized that the EU has great potential, there is still a lot of ground to cover.

I hope to talk more about this in the coming months.

Tags: , , , ,

No Comments

SOX to Go the Way of Gitmo Bay?

While the Obama administration is making a lot of changes — foreign policy and the economy are taking center stage — the business world is eyeballing the US Supreme Court’s latest decision to review the constitutionality of the Sarbanes-Oxley Act of 2002.

I wrote about this topic last year for Advisor Media, “Auditing Your Warehouse For Sox Compliance” as well as in my post “Formula 409: Private Companies Must Comply with SOX“. In my blog post, I said that innovation would take a series hit due to Section 409’s mandate that companies “must disclose material change events that would impact their financial condition or operations”. These material changes could include failed R&D projects: Not good for a public company looking to experiment. Imagine, for a second, what the technology world would look like if Bell Labs in the middle of the 20th century had these restrictions. Or Apple, or Microsoft, et al.

So will SOX be repealed? Is it unconstitutional? Time will tell, but I’m sure many CEOs are keeping their fingers crossed. Investors still need protection, but SOX just isn’t quite right.

Tags: , , , ,

No Comments

Formula 409: Private Companies Must Comply with SOX

I’ve been doing a lot of research on Sarbanes-Oxley (SOX) compliance lately in part because I am now working in the financial industry and in part because I am preparing an article on the topic for Advisor Media.

SOX compliance is both complex and vague. There is no official compliance checklist, only various guidelines and advice from agencies, accountants, and vendors. Businesses are left to implement control frameworks, introduce new segregation of powers, add auditing and logging to existing systems, and rely on the advice and expertise of consultants and vendors who promise to deliver various solutions.

And if there is a misstep, the CEO could go to jail.

Section 409

One area I don’t hear a lot of discussion about from the IT world is the implications of Section 409. Not to say that there is no discussion, but that the vast majority of IT articles on SOX compliance focus on Sections 302 and 404. The reality is that Section 409 doesn’t easily translate to any specific IT implementation or control structure.

But it certainly has significant implications for a public company’s IT/R&D department. Here is the text of the Sarbanes-Oxley Act, Section 409:

Section 13 of the Securities Exchange Act of 1934 (15 U.S.C. 78m), as amended by this Act, is amended by adding at the end the following:

“(l) REAL TIME ISSUER DISCLOSURES. - Each issuer reporting under section 13(a) or 15(d) shall disclose to the public on a rapid and current basis such additional information concerning material changes in the financial condition or operations of the issuer, in plain English, which may include trend and qualitative information and graphic presentations, as the Commission determines, by rule, is necessary or useful for the protection of investors and in the public interest.”.

Basically, a public company must disclose material change events that would impact their financial condition or operations. And Big Brother wants pictures!

As an investor, this is great news; for the sake of innovation though, not so much.

Material changes

What is a material change? No clue. Well, I do have some clue, but there is no official definition of a material change in relation to Section 409 compliance. The only requirement seems to be that it is any change that impacts a company’s finances or operations. I suppose outsourcing a project to IBM, laying off a few dozen employees, or significantly cutting supplier costs all apply. Any change in an organization that could change profitability is a candidate. This includes a failed research and development project.

Yes, a failed R&D project.

Innovation takes a hit

The prospect of reporting failure likely makes CEOs a bit weak in the knees. Competitors will sniff the SOX box to find out what their rivals are doing — or not doing, for that matter. This in turn will force public companies to think twice about taking R&D risks. If you like innovation and continuous improvement, this doesn’t bode well.

As a result (directly or indirectly), we’ve seen a flurry of big-time acquisitions. Instead of developing new technologies in-house, companies are more inclined than ever to acquire them from smaller companies. To restate: the prospect of a failed innovative R&D project is forcing large companies to purchase private companies with proven ideas and technologies.

One of many examples

Take Microsoft’s acquisition of Stratature, an MDM vendor, last year. Stratature was recognized as the fastest growing private company in the Southeast in both 2005 and 2006. Microsoft bought them in 2007. Certainly Microsoft could have developed their own MDM solution. Right?

It is my feeling that the purchase had to do in part with Section 409. Microsoft could have started R&D on their own MDM solution. But MDM is complex and evolving. There is no one clear solution. If Microsoft embarked on this path, there would have been a chance they would have failed. Stratature was already a big success. The price was high, but worth it.

Opportunities for the rest of us

It is clear that Section 409 presents an interesting opportunity to small, private companies. If you invent an idea and grow and market it, it is more likely today than ever before that a larger company would seek to acquire you. Larger companies don’t want to take the risk of exposing themselves (and their failed project initiatives) under the “material event” clause of SOX. Besides, larger companies buy up smaller companies anyway: it is good business and often fits their strategic interests. Section 409 merely gives them an additional reason to do so.

Therefore, SOX compliance for all

Now you have a great product, and you have some interest from a larger public company looking to acquire you. But you have no internal control structures in place, no financial audit trail, and your IT department has broad access to all of your data. Because of this, the purchasing company will need to do a lot of work getting your business in shape for public life.

Not only that, but partnering with a public company may force you into compliance as well.

Lastly, your valuation will be higher if you comply with SOX (check out the Aberdeen Group’s “SOX Compliance and Automation: A Benchmark Report”, which can be downloaded from the Compliance Library at ultimate Software). Private companies who comply with SOX — especially sections 302 and 404 — operate better, are trusted, and are more attractive to potential buyers.

Unless you have no plans of being acquired or partnering with a public company, then it seems foolish not to start the process of meeting the requirements of SOX: Especially if you are an innovative company doing one or more progressive research projects.

Tags: , , , ,

3 Comments