Plan Committee Chairs to Sign 906 Certifications for 11-Ks?

There have been multiple posts here about the issue of whether 906 Certifications are required for SEC Form 11-Ks for employee benefits plans. The SEC recently came out with a statement discussed here that it is deliberating on the whole…

There have been multiple posts here about the issue of whether 906 Certifications are required for SEC Form 11-Ks for employee benefits plans. The SEC recently came out with a statement discussed here that it is deliberating on the whole issue. Assuming the certification is required, it has been suggested that the proper party to sign the 906 Certification probably is the chair of the plan committee which is normally appointed to oversee the plans, since the plan is really the “issuer” in this context. This should really cause a stir in the plan fiduciary community! They are still reeling from all of the fallout from Enron and the ERISA fiduciary litigation which is running through the courts. So, now they are not only subject to personal liability for fiduciary violations under ERISA, but they are subjected to possible criminal liability under Sarbanes-Oxley as well? Since I am not a securities lawyer, am I right on this? After the DOL’s Amicus Brief in the Enron case, many practitioners are advising that high level individuals in the company (with insider information) not be allowed to serve on plan committees where employer stock is involved, due to the conflicts which may arise, so who would be left to sign these certifications? If readers are so inclined, comments would be welcome . . .

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