Category: Corporate Governance
Final SEC climate disclosure rules [UPDATED Part I]
Last week, by a vote of three to two, the SEC adopted final rules “to enhance and standardize climate-related disclosures by public companies and in public offerings.” The disclosure, which will be included in registration statements and annual reports, will draw, in part, on disclosures provided for under the Task Force on Climate-Related Financial Disclosures and the Greenhouse Gas Protocol. The new rules will require public companies to disclose information about the material climate-related risks, companies’ governance, risk management and any material climate-related targets or goals, as well as disclosure of the financial statement effects, such as costs and losses, of severe weather events and other natural conditions. Importantly, as widely rumored, in response to public feedback, the SEC has jettisoned the mandate for Scope 3 GHG emissions reporting; the final rules require disclosure of Scope 1 and/or Scope 2 GHG emissions on a phased-in basis only by accelerated and large accelerated filers when those emissions are material. Companies will also be allowed more time to file their emissions disclosures. The final rules provide for several phase-ins, as well as for some safe harbors. Although, in response to comments, the SEC made a serious effort to add materiality qualifiers—there are at least 1,003 references to “material” or “materiality,” but then, the release is 886 pages—and to eliminate many of the prescriptive granular requirements, don’t fear or celebrate (depending on your point of view) yet: there are still plenty of prescriptive granular requirements. The SEC insists that, in adopting the rules, its intent was not to effect a specific climate result or to shift governance behaviors—the word “agnostic” appears at least five times in the adopting release. Law 360 reports that three lawsuits have been filed against the rulemaking and at least two have been threatened—by the Chamber of Commerce and the Sierra Club.
SEC dials back final climate disclosure rules
We’ve been trying to read the tea leaves for two years now, speculating about where the SEC’s final climate disclosure rules might land, especially as criticism about the proposal from the corporate sphere and from Congress intensified, and snippets about the contents of the final rule leaked to the press. This conjecture is now at an end: yesterday, by a vote of three to two, the SEC adopted final rules “to enhance and standardize climate-related disclosures by public companies and in public offerings.” If you tuned in to the SEC’s open meeting yesterday—with over two hours devoted to the climate rules—you didn’t see a lot of happy faces. The dissenters (Commissioners Hester Peirce and Mark Uyeda) thought the rule was unnecessary and went too far and Commissioner Caroline Crenshaw thought the final rule didn’t go far enough, but was barely acceptable as a “floor” for disclosure. Only SEC Chair Gary Gensler and Commissioner Jaime Lizárraga seemed to think that the balance was about right. Apparently, a coalition of attorneys general from ten states isn’t very happy either. Law 360 is reporting that the group immediately petitioned the Eleventh Circuit to review the new climate rules. (See the SideBar below.)
The disclosure, which will be included in registration statements and annual reports, will draw, in part, on disclosures provided for under the Task Force on Climate-Related Financial Disclosures and the Greenhouse Gas Protocol. The new rules will require public companies to disclose information about the material climate-related risks, companies’ governance, risk management and any material climate-related targets or goals, as well as disclosure of the financial statement effects, such as costs and losses, of severe weather events and other natural conditions. Importantly, as widely rumored, in response to public feedback, the SEC has jettisoned the mandate for Scope 3 GHG emissions reporting; the final rules require disclosure of Scope 1 and/or Scope 2 GHG emissions on a phased-in basis only by accelerated and large accelerated filers when those emissions are material. Companies will also be allowed more time to file their emissions disclosures. Attestation will also be phased in. According to Gensler,
“Our federal securities laws lay out a basic bargain. Investors get to decide which risks they want to take so long as companies raising money from the public make what President Franklin Roosevelt called ‘complete and truthful disclosure,’….Over the last 90 years, the SEC has updated, from time to time, the disclosure requirements underlying that basic bargain and, when necessary, provided guidance with respect to those disclosure requirements….These final rules build on past requirements by mandating material climate risk disclosures by public companies and in public offerings. The rules will provide investors with consistent, comparable, and decision-useful information, and issuers with clear reporting requirements. Further, they will provide specificity on what companies must disclose, which will produce more useful information than what investors see today. They will also require that climate risk disclosures be included in a company’s SEC filings, such as annual reports and registration statements rather than on company websites, which will help make them more reliable.”
Corp Fin staff advice on “eligible sell-to-cover” transactions under Rule 10b5-1
Many thanks to thecorporatecounsel.net blog for posting this memorandum to the ABA’s Joint Committee on Employee Benefits from three members of that committee regarding their informal discussions with SEC staff about a couple of questions that have arisen about the scope of the exception for “sell-to-cover” transactions under Rule 10b5-1.
Reuters scoop: SEC to jettison Scope 3 requirements from climate disclosure proposal
Today, Reuters reported exclusively that the SEC is indeed planning to eliminate some of the more controversial requirements in its climate disclosure proposal. Of course, we’re talking Scope 3. (See this PubCo post, this PubCo post and this PubCo post.). To be sure, this news doesn’t come as a complete surprise. Even a year ago, the SEC floated the idea that, in response to concerns regarding potential litigation (among other things), it may well pare down and loosen up some of its proposed rules on climate disclosure. In this article in Politico and this article in the WSJ, “three people familiar with the matter” and “people close to the agency” told reporters that SEC Chair Gary Gensler was “considering scaling back a potentially groundbreaking climate-risk disclosure rule that has drawn intense opposition from corporate America.” But at that point, according to Politico, SEC officials stressed that “no decision has yet been made.” (See this PubCo post.) Reuters is now reporting that, according to “people familiar with the matter”—are they the same people, I wonder?—among the requirements the SEC plans to scrap in the final rules is the requirement to disclose Scope 3 GHG emissions.
What ESG backlash? KPMG survey finds companies plan to increase spending on ESG
ESG backlash notwithstanding, a recent global survey conducted by KPMG of 550 company directors and members of management showed that the vast majority of global organizations plan to increase spending on sustainability initiatives over the next three years. Why? KPMG’s US ESG Audit Leader told Bloomberg that the “key reason” at the moment for the increased interest in ESG “‘is really regulatory pressure.’ Regulations are forcing companies to ‘inject the same level of rigor into [their] sustainability reporting that is required of financial reporting….Historically, sustainability reporting has sat with a very small group of under-resourced people,’ [she said]. Now as requirements evolve, ‘the amount of effort and rigor that needs to go into reporting has changed substantially.’” But these expenditures are not designed purely for compliance, KPMG concluded; they are also considered “a valuable tool for enhancing financial performance both now and in the future.” Nevertheless, “organizations are facing real challenges in delivering against this objective”; as KPMG observed, there seems to a “a disconnect between perception and preparedness.”
Fifth Circuit grants petition for rehearing en banc for Nasdaq board diversity rule
In August 2021, the SEC approved a Nasdaq proposal for new listing rules regarding board diversity and disclosure, accompanied by a proposal to provide free access to a board recruiting service. The new listing rules adopted a “comply or explain” mandate for board diversity for most listed companies and required companies listed on Nasdaq’s U.S. exchange to publicly disclose “consistent, transparent diversity statistics” regarding the composition of their boards. (See this PubCo post.) It didn’t take long for a court challenge to these rules to materialize: the Alliance for Fair Board Recruitment and, later, the National Center for Public Policy Research petitioned the Fifth Circuit Court of Appeals—the Alliance has its principal place of business in Texas—for review of the SEC’s final order approving the Nasdaq rule. (See this PubCo post and this PubCo post) In October 2023, a three-judge panel of the Fifth Circuit denied those petitions, in effect upholding Nasdaq’s board diversity listing rules. Given that, by repute, the Fifth Circuit is the circuit of choice for advocates of conservative causes, the decision to deny the petition may have taken some by surprise—unless, that is, they were aware, as discussed in the WSJ and Reuters, that the three judges on this panel happened to all be appointed by Democrats. Petitioners then filed a petition requesting a rehearing en banc by the Fifth Circuit, where Republican presidents have appointed 12 of the 16 active judges. (See this PubCo post.) Not that politics has anything to do with it, of course. That petition for rehearing en banc has just been granted by the Fifth Circuit—on Presidents’ Day—and the opinion of the lower court was vacated.
Center for Political Accountability introduces Guide to Model Code
In 2020, the Center for Political Accountability introduced the CPA-Zicklin Model Code of Conduct for Corporate Political Spending, designed to provide a “thorough and ethical framework” for corporate political spending. The preamble states that the Code is a “public commitment to employees, shareholders and the public to transparency and accountability. It not only mitigates risk but also demonstrates the company’s understanding that its participation in politics must reflect its core values, its respect for the law and its responsibilities as a member of the body politic.” The goal is to help companies adopting this code to avoid the reputational and financial harm that might result from a failure to align corporate values and political spending. Ultimately, the CPA observes, “directors and officers are responsible and accountable for the political choices and broader impact that may result from their company’s election-related spending, no matter how financially immaterial it may seem.” Now, the CPA has developed a Guide to Becoming a Model Code Company, designed to help companies and their boards understand the Model Code and how it can help them manage election-related political spending in high-risk environments—think the 2024 election cycle now upon us. According to the President of the CPA, the Guide was developed based in part on questions raised by companies at a recent roundtable on corporate political spending at NYU’s Stern School.
Gensler talks about AI (and a bit about climate)
Yesterday, in remarks at Yale Law School, SEC Chair Gary Gensler talked about the opportunities and challenges of AI. According to Gensler, while AI “opens up tremendous opportunities for humanity,” it “also raises a host of issues that aren’t new but are accentuated by it. First, AI models’ decisions and outcomes are often unexplainable. Second, AI also may make biased decisions because the outcomes of its algorithms may be based on data reflecting historical biases. Third, the ability of these predictive models to predict doesn’t mean they are always accurate. If you’ve used it to draft a paper or find citations, beware, because it can hallucinate.” In his remarks, Gensler also addressed the potential for systemic risk and fraud. But, in the end, he struck a more positive note, concluding that the role of the SEC involves both “allowing for issuers and investors to benefit from the great potential of AI while also ensuring that we guard against the inherent risks.”
Does shareholder primacy mean just maximizing profits—and what does Exxon have to do with it?
As you know, the shareholder primacy theory is widely attributed to the Chicago school of economists, beginning in the 1970s, with economist Milton Friedman famously arguing that the only “social responsibility of business is to increase its profits.” Subsequently, two other economists published a paper characterizing shareholders as “‘principals’ who hired executives and board members as ‘agents.’ In other words, when you are an executive or corporate director, you work for the shareholders.” The idea, in effect, is that, as owners, shareholders may legitimately require that the company conduct its business in accordance with their desires. Of course, this idea has been subject to criticism by many as improperly ignoring the interests of other stakeholders, such as employees, customers and the community—so-called “stakeholder capitalism.” Under Friedman’s version of shareholder primacy, the desire of shareholders has long been presumed to be to maximize value and increase profits. But is it? The author of this article in Fortune makes the argument that the ongoing Exxon litigation against Arjuna and Follow This, two proponents of a climate-related shareholder proposal, throws into sharp relief a schism that has formed among adherents to the idea of shareholder primacy. The question posed is “what do shareholders really want, and are companies ever allowed to ignore them? Arjuna and Follow This own Exxon stock and are trying to dictate how the energy giant behaves. However, they are demanding more than dividends: They want Exxon to commit to more ambitious emissions reductions, and to some, that’s just as bad as companies admitting an obligation to workers or the community.” Does shareholder primacy necessarily mean just maximizing profits?
SEC Chief Accountant urges focus on professional skepticism and audit quality
SEC Chief Accountant Paul Munter has posted a new Statement. What’s on his mind? Apparently, he is disturbed that, in recent inspections of audits, the PCAOB has reported a “troubling” increase in deficiency rates—meaning the PCAOB found that there was insufficient audit evidence obtained to support the auditor’s opinion. Deficiency rates went from 29% in the PCAOB’s 2020 inspections to 34% in its 2021 inspections, up now to 40% in its 2022 audit inspections. This, he warned, was a “troubling trendline in PCAOB inspections results”—emphasis again on “troubling.” What does he prescribe? A “commitment to high-quality audits,” which, “in turn, calls for the auditor to exercise objective, impartial judgment and rigorous professional skepticism in gathering and evaluating evidence throughout the audit to support the audit opinions provided.” To be sure, both auditors and audit committees “should pay particularly close attention to areas that have been frequently identified as causes of deficiencies in PCAOB inspections.” In addition, he advises that “auditors should conduct engagements with a mindset that the investors, rather than management, are the audit client.” This commitment to high-quality audits, he contends, is the only way for auditors to protect the investing public. He offers advice for both auditors and audit committees.
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