At a recent meeting of the SEC’s Investor Advisory Committee discussing the SEC’s climate disclosure proposal, a speaker in charge of ESG investing at an asset manager raised the possible risk that companies, faced with a disclosure mandate, would just buy carbon offsets to satisfy investors that they are making progress toward their climate goals. His firm, he said, has been seeing this phenomenon occur, but he thought that the practice could lead to poor outcomes. Companies would probably experience better outcomes, he advised, if they first considered spending those same funds on investments that would actually reduce their carbon footprints. What’s that about? While many experts view carbon offsets as essential ingredients in the recipe for net-zero, some commentators worry that they are just part of a “well-intentioned shell game” or perhaps, less generously, a “racket with trees being treated as hostages”? And some think both concepts—essential and racket—may be true in some cases at the same time. Are carbon offsets effective or are they just a way to assuage, as the NYT phrases it, “carbon guilt”?
The SEC has posted its Spring 2022 Reg-Flex agenda and it’s crammed with pending and new rulemakings—and they’re all going to be proposed or adopted in October! (Ok, admittedly, that’s an exaggeration, but not much of one.) Here is the short-term agenda and here is the long-term agenda. According to SEC Chair Gary Gensler, the “U.S. is blessed with the largest, most sophisticated, and most innovative capital markets in the world….But we cannot take that for granted. As SEC alum Robert Birnbaum and his team said decades ago, ‘no regulation can be static in a dynamic society.’ That core idea still rings true today.” Gensler’s public policy goals for the agenda are “continuing to drive efficiency in our capital markets and modernizing our rules for today’s economy and technologies.” As with recent prior agendas, SEC Commissioner Hester Peirce has almost no kind words for the agency’s plans—“flawed goals and a flawed method for achieving them.” In fact, she went so far as to characterize the agenda as “dangerous”: in her view, the agenda represents “the regulatory version of a rip current—fast-moving currents flowing away from shore that can be fatal to swimmers. Just as certain wave and wind conditions can create dangerous rip currents, the pace and character of the rulemakings on this agenda make for dangerous conditions in our capital markets.” There’s no dispute that the agenda is laden with major proposals—human capital, SPACs, board diversity. What’s more, many of these proposals—climate disclosure, cybersecurity, Rule 10b5-1—are apparently at the final rule stage. Whether or not we’ll see a load of public companies submerged by the rip tide of rulemakings remains to be seen, but there’s not much question that implementing them all would certainly be a challenge in any case.
The CPA-Zicklin Index of Corporate Political Disclosure and Accountability (from the Center for Political Accountability and the Zicklin Center for Business Ethics Research at the Wharton School of the University of Pennsylvania) annually benchmarks public companies’ disclosure, management and oversight of corporate political spending. The Index also includes specific rankings for companies based on their Index scores, as well as best practice examples of disclosure and other helpful information. (See this PubCo post.) CPA launched the Index in 2011 following the decision by SCOTUS in Citizens United, benchmarking only the S&P 100. In 2015, it began to benchmark the S&P 500. The Index has just announced that, beginning this fall, it will expand its coverage to the Russell 1000. As reported in MarketWatch, the President of CPA observed that, “[w]ith companies under much greater scrutiny on their election-related spending, it really is incumbent on them that they have strong [governance] policies that they adhere to. They face the threat of boycotts. They face the threat of employee morale problems….They face the threat of very harmful publicity. Bottom lines can be adversely affected by the way companies engage in political spending.”
On Thursday, as reported by Thomson Reuters, the Senate unanimously confirmed Jaime E. Lizárraga and Mark Toshiro Uyeda to serve as SEC Commissioners. Lizárraga will fill the seat of departing Democratic Commissioner Allison Herren Lee (see this PubCo post), whose term ended June 5 (but who continued to serve until her successor’s confirmation), and Uyeda will fill the seat vacated in January by former Republican Commissioner Elad Roisman (see this PubCo post). In this statement, the current Commissioners congratulate Lizárraga and Uyeda on their confirmations. The SEC will now have a full complement of five Commissioners.
Corp Fin has posted a new Exchange Act CDI regarding swaps and forward contracts. Swaps and security-based swaps are subject to a comprehensive regulatory framework established under Dodd-Frank. Under release 33-9338, forward contracts are excluded from the definitions of the terms “swap” and “security-based swap.” More specifically, these definitions exclude “any sale of a nonfinancial commodity or security for deferred shipment or delivery, so long as the transaction is intended to be physically settled.” But what if the underlying securities cannot be legally transferred when the parties enter into the contract? Are they still ”intended to be physically settled”? New Question 101.01 addresses this question.
Do companies disclose enough information about investments in their workforces? Not according to the Working Group on Human Capital Accounting Disclosure, a group of ten academics that includes former SEC Commissioners Joe Grundfest and Robert Jackson, Jr. and former SEC general counsel, John Coates. The Working Group has submitted a new rulemaking petition requesting that the SEC require more disclosure of financial information about human capital. According to the petition, there has been “an explosion” of companies “that generate value due to the knowledge, skills, competencies, and attributes of their workforce. Yet, despite the value generated by employees, U.S. accounting principles provide virtually no information on firm labor.” The petition requests that the SEC “develop rules to require public companies to disclose sufficient information to allow investors to assess the extent to which firms invest in their workforce”—in the same way that “SEC rules have long facilitated analysis of public companies’ investments in their physical operations.” Asked about the petition, Grundfest told Bloomberg that it “aims to move the accounting treatment of a company’s workforce to the same level as its physical capital….’Current accounting rules give us more information into the economic consequences of buying or leasing a drill press than of hiring and training a software engineer….How much sense does that make in today’s world?’”
While the proposed requirement to disclose material Scope 3 greenhouse gas emissions seems to be one of the most contentious—if not the most contentious—element of the SEC’s climate disclosure proposal (see this PubCo post and this PubCo post), two of the SEC’s Democratic Commissioners, Allison Herren Lee and Caroline Crenshaw, told Bloomberg that they think it still doesn’t go far enough. They are advocating that Scope 3 GHG emissions data be subject to attestation—like the proposed requirement for Scopes 1 and 2—to ensure that it is reliable. This discussion might just be a continuation—or perhaps a reinvigoration—of an internal debate that reportedly led to delays in issuing the proposal to begin with. As previously discussed in this PubCo post, the conflicts were reportedly between SEC Chair Gary Gensler and the two other Democratic Commissioners, Lee and Crenshaw, about how far to push the proposed new disclosure requirements, especially in light of the near certainty of litigation. One major issue at the time, Bloomberg reported, was whether to mandate disclosure of Scope 3 GHG emissions, which, some companies contended, is not under their control and “unfairly makes companies vulnerable to shareholder lawsuits and government enforcement actions.” Another major point of contention was reportedly was whether to require that auditors sign off on the emissions disclosures. The current proposal may reflect a compromise on these issues, but apparently one that does not sit comfortably with Lee and Crenshaw.
SEC’s Investor Advisory Committee hears about non-traditional financial information and climate disclosure
Last week, at a meeting of the SEC’s Investor Advisory Committee, the Committee heard from experts on two topics: accounting for non-traditional financial information and climate disclosure. Interestingly, two of the speakers on the first panel are among the eight new members just joining the Committee. In his opening remarks, with regard to non-traditional financial information, SEC Chair Gary Gensler characterized the discussion as “an important conversation as we continue to evaluate types of information relevant to investors’ decisions. Whether the information in question is traditional financial statement information, like components in an income statement, balance sheet, or cash flow statement, or non-traditional information, like expenditures related to human capital or cybersecurity, it’s important that issuers disclose material information and that disclosures are accurate, not misleading, consistently applied, and tied to traditional financial information.” With regard to climate disclosure, Gensler returned to his theme that the SEC’s new climate disclosure proposal is simply part of a long tradition of expanded disclosures, addressing the topic of “a conversation that investors and issuers are having right now. Today, hundreds of issuers are disclosing climate-related information, and investors representing tens of trillions of dollars are making decisions based on that information. Companies, however, are disclosing different information, in different places, and at different times. This proposal would help investors receive consistent, comparable, and decision-useful information, and would provide issuers with clear and consistent reporting obligations.” In her opening remarks, SEC Commissioner Hester Peirce asked the Committee to “consider whether our proposed climate disclosure mandate would change fundamentally this agency’s role in the economy, and whether such a change would benefit investors. Are these disclosure rules designed to elicit disclosure or to change behavior in a departure from the neutrality of our core disclosure rules?”
Jarkesy and climate disclosure: how far will the courts go in constraining the administrative state?
On Wednesday, in an Expert Forum sponsored by Cornerstone Research, Stanford professor and former SEC Commissioner Joe Grundfest and Vice Chair and Chief Legal Officer of Millennium Management and former SEC General Counsel Simon Lorne discussed “The Evolving SEC Landscape: Jarkesy v. SEC and the Proposed Climate Rules.” The two seemingly disparate topics were united by a common thread—the intense skepticism exhibited by some courts (including a likely majority of SCOTUS) of the vast power of the administrative state and their undisguised enthusiasm to constrain it. As Grundfest put it, in a slightly different context, the words are different but the melody is the same. What will be the impact?
Yesterday, the SEC announced that it is reopening the comment period for its 2015 proposal for listing standards for recovery of erroneously awarded compensation. Wait—didn’t they just do that? Yes, in October 2021. (See this PubCo post.) But no, that’s not Sonny and Cher on the radio. The SEC has decided to reopen the comment period AGAIN to allow further public comment in light of a new, just released DERA staff memorandum containing “additional analysis and data on compensation recovery policies and accounting restatements.” The new comment period will be open until 30 days after publication of the reopening notice in the Federal Register.