Tuesday, November 30, 2004

Judge Upholds Sarbanes-Oxley Criminal Provision

U.S. District Judge Karon O. Bowdre (N.D. Ala) issued an opinion dated Nov. 23--but apparently not released until Nov. 29--rejecting Richard Scrushy's vagueness challenge to the CEO/CFO certification provision of the Sarbanes-Oxley Act.  The provision, now codified at 18 U.S.C. ยง 1350, provides:

Whoever--(1) certifies any statement as set forth in subsections (a) and (b) of this section knowing that the periodic report accompanying the statement does not comport with all the requirements set forth in this section shall be fined not more than $1,000,000 or imprisoned not more than 10 years, or both; or (2) willfully certifies any statement as set forth in subsections (a) and (b) of this section knowing that the periodic report accompanying the statement does not comport with all the requirements set forth in this section shall be fined not more than $5,000,000, or imprisoned not more than 20 years, or both.

According to an AP report, the judge held that issues of intent are for the jury to decide and that the statutory terms are not unconstitutionally vague.  A copy of the opinion will be posted here as soon as it is available.  Scrushy's trial is set to begin on Jan. 5, 2005, and it promises to be interesting, to say the least. (ph)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2004/11/judge_upholds_s.html

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