Although Sarbanes-Oxley has been on the books for nearly a decade, this clawback provision has been previously used just four times in a strict liability manner against individuals who aren’t themselves charged with wrongdoing. Section 304 of the Act states that if a company has restated its financials because of misconduct, then the CEO or CFO must reimburse incentive compensation to the company. In 2009 a federal court ruled for the first time that this provision can be used against executives who aren’t charged with misconduct. That case was brought against Maynard Jenkins, the former CEO of CSK Auto Corporation. (You can read that decision from the district of Arizona here.) The SEC has similarly applied section 304 in cases against executives at Beazer Homes and Diebold.
In this case, Symmetry’s restatements totaled $52.7 million over three-and-a-half years, as a result of a fraudulent scheme at its subsidiary, Thornton Precision Components. The SEC reached a cease-and-desist settlement with medical device maker Symmetry through an administrative action, taking notice of the remedial measures that the company took to address the misconduct.
Symmetry’s former CEO Brian Moore is represented by Russell Ryan at King & Spaulding, who issued this statement: “It is important to emphasize that the SEC did not accuse Mr. Moore of any wrongdoing. He is glad to have put the matter behind him.”
Symmetry CFO Fred Hite, who also agreed to pay a $25,000 penalty in addition to the clawback, is represented by Nancy Grunberg at Venable. Symmetry is represented by Erich Schwartz at Skadden, Arps, Slate, Meagher & Flom. Both declined to comment.
The company issued this press release in which it noted that no fraud charge were brought against it, and it did not have to pay any civil penalties or fines.