In its June 3, 2004 press release announcing a $37 million settlement with Symbol Technologies (all of which will be distributed to injured investors under the Fair Funds provision in SOX), the SEC made it clear that Symbol's initial lack of cooperation was a factor in the amount of the penalty. The SEC stated that:

In assessing the penalty amount, the Commission considered the scope and severity of the fraud, Symbol's initial efforts to cover up the misconduct and impede two internal investigations and the Commission's investigation, and the company's eventual cooperation and remediation.

"The scope and magnitude of the fraud at Symbol Technologies warrant the imposition of significant penalties — not just against individual wrongdoers, but also against the company responsible for having created and fostered the environment in which the wrongdoing took place," said Stephen M. Cutler, Director of the Commission's Division of Enforcement. "And while the company ultimately did cooperate with the government -- and received credit for having done so — its initial response to our investigation further harmed investors by delaying exposure of the fraud and allowing it to continue longer than it otherwise might have."

This makes three SEC "noncooperation" cases in the last three months: Banc of America; Lucent; and now this case against Symbol.