Students John Stalnaker and Patrick Derksen of Chicago-Kent College of Law submit these comments in support of the above captioned proposed rule. We agree that the section 302 and section 906 certifications should be separate exhibits to facilitate access and enforcement. However, the section 906 requirements should be more stringent to promote individual accountability.
As they relate to the ease with which any of the concerned parties are able to access the certification to the periodic reports, these amendments are a sound idea. It is difficult to find certifications buried under the reports as they are now produced. If anyone trying to locate the certifications knows that they are now furnished as an exhibit to said reports, they will know to look to the separate location to find them, enabling investors and enforcement officials to locate information more easily and efficiently.
Second, we believe that the proposed amendment separating the certifications from the periodic reports will increase the efficiency of the Commission in confirming that such reports are filed. The Commission may ascertain whether or not the certification has been properly filed, precluding an extended search of the entire periodic report. This broader exposure will in turn inspire those submitting the reports to be more diligent and accurate in their certifications. The positive benefits of the provision greatly outweigh the minimal additional administrative burden.
We also believe that a more fundamental problem exists. Existence of the information needs to be disseminated broadly to interested parties. Although the relevant information is readily available, if investors are not aware of the availability, the requirement is useless. Everyone trying to locate the certifications will indeed know that they are now filed as an exhibit and in a separate place. In order to make sure that this is in fact the case, there should be some kind of notice or link within the periodic reports stating, at least for a certain length of time, telling the reader that the certifications are located somewhere else, and where that somewhere else is. This is of key importance, since the purpose for the proposed change is to make it easier to find the certifications. If the certifications are removed from within the periodic report, but the reader is not informed regarding where they have been moved to, this goal will not be accomplished.
While we commend the section 302 provisions, the section 906 provisions should be more stringent. Requiring CEOs and CFOs to merely furnish certifications may leave room to skirt personal liability. Criminal penalties are imposed under Section 906 only for "filed" reports. The different language employed in the proposed rule seems to circumvent potential liability. A critical aspect of increasing consumer confidence is the assurance of professional liability. We do not believe that the requirement to merely furnish the commission with 906 certifications adequately addresses liability concerns. 906 should impose the same filing requirement as 302. Permitting executives to insulate themselves from liability behind the corporate shield gives the new regulation no real effect other than to superficially impose a greater disclosure requirement. The new requirement must have consequences in order to be effective. The most effective way to promote accurate disclosure is to increase individual liability. Without the prospect of individual liability, the incentive to conform will not be as great.
For the foregoing reasons, the Commission should adopt the proposed amendment to section 302 and should adopt the same requirement for section 906.