Category: Securities
SEC Acting Chief Accountant cautions again about auditor independence concerns, especially the “checklist compliance mentality”
Auditor independence—or rather the potential absence of same—is apparently still a cause of significant agita at the SEC’s Office of Chief Accountant. In October last year, Acting Chief Accountant Paul Munter issued a statement regarding the importance of auditor independence—a concept that is “foundational to the credibility of the financial statements.” That statement was prompted largely by the trend at that time toward the use of “new and innovative transactions” to access the public markets, such as SPACs, together with the potential effect on independence of increasingly complex tangles of business relationships among audit firms, audit clients and non-audit clients. (See this PubCo post.) But that caution seems not to have been enough to slay the dragon. In this June statement, Munter again addresses auditor independence. The SEC, he observes, “has long-recognized that audits by professional, objective, and skilled accountants that are independent of their audit clients contribute to both investor protection and investor confidence in the financial statements.” This time, Munter focuses his statement on the critical importance of the general standard of auditor independence and recurring issues in recent auditor independence consultations. He also addresses the value of firms’ treating accounting as a profession, one that fosters “a culture of ethical behavior in all their professional activities, but especially with respect to auditor independence.” Munter appears to be especially concerned about the “decreased vigilance” and “ethical deterioration” that may arise out of “checklist compliance mentality,” an unfortunate state of mind he highlights in several contexts. It is important for companies to keep in mind that violations of the auditor independence rules can have serious consequences not only for the audit firm, but also for the audit client. For example, an independence violation may cause the auditor to withdraw the firm’s audit report, requiring the audit client to have a re-audit by another audit firm. As a result, in most cases, inquiry into the topic of auditor independence should certainly be a recurring menu item on the audit committee’s plate.
West Virginia v. EPA: SCOTUS gives its imprimatur to the “major questions” doctrine, shaking up the “administrative state”
West Virginia v EPA, the next-to-final decision handed down by SCOTUS this term, is a significant decision regarding a rule that the EPA said was never even in effect, that it had no intention of enforcing and that it planned to later replace with a new still-to-be-developed rule. As the NYT phrased it, “it’s a case about a regulation that doesn’t exist.” (Sort of like an episode of Seinfeld—the show about nothing—except that it’s not the least bit funny.) So SCOTUS could have stopped right there, but the Court forged ahead—an indicator by itself—with a decision that is nevertheless shaking up administrative law and the extent of rulemaking authority that federal agencies have—or thought they had. Its impact will likely be felt, not just at the EPA, but also at many other agencies, including the SEC. Of course, the conservative members of the Court have long signaled their desire to rein in the dreaded “administrative state.” (See, for example, the dissent of Chief Justice John Roberts in City of Arlington v. FCC back in 2013, where he worried that “the danger posed by the growing power of the administrative state cannot be dismissed.”) With this new decision by the Chief Justice (joined by five other justices), that desire has now been sated—for a while at least. In the majority opinion, SCOTUS declared that this case “is a major questions case,” referring to a judicially created doctrine holding that courts must be “skeptical” of agency efforts to assert broad authority to regulate matters of “vast economic and political significance,” requiring, in those instances, that the agency “point to ‘clear congressional authorization’ to regulate.’” In addition to the blow that the decision deals to climate regulation—“Court Decision Leaves Biden With Few Tools to Combat Climate Change,” is one of the headlines from the NYT—we can now expect the major questions doctrine to be brandished regularly against significant agency regulations across the board, and, with Congress perpetually at loggerheads and limited in its ability to authorize much of anything these days, it could well stymie much agency rulemaking. Does anyone question that, with SCOTUS’s new imprimatur, the doctrine will be raised in anticipated litigation against whatever version of the SEC’s climate disclosure regulation is adopted? As reported by Reuters, when asked by Bloomberg TV on Thursday about the impact of the decision on other agencies, Senator Patrick Toomey “singled out the SEC rule,” claiming that the SEC is “attempting to impose this whole climate change disclosure regime…with no authority from Congress to do that.” To better understand the major questions doctrine, it may be useful to take a closer look at the case.
WSJ raises more concerns about potential insider trading under Rule 10b5-1 plans
When the WSJ performs a study and publishes the results on the front page, it often has consequences. It’s worth remembering that it was a study reported in the WSJ about stock option backdating that kicked off the option backdating scandal of the mid-2000s (see, e.g., this news brief, this news brief and this news brief). Now, the WSJ has conducted a new front-page analysis of trading by insiders under Rule 10b5-1 plans that “shows that executives benefit when sales happen quickly after the plans’ adoption.” Academics and the SEC, the WSJ observes, suggest that “some corporate insiders might be using nonpublic information to game the system.” Under SEC Chair Gary Gensler, the SEC has already proposed new rules to “freshen up,” as Gensler likes to say, the rules on 10b5-1 plans, including mandatory cooling-off periods after adoption or modification of the plan—an aspect of the proposal designed to address precisely this issue. The WSJ analysis found that about 44% of the trades reviewed (about 33,000 stock sales), would not have been permitted under the cooling-off periods proposed in the SEC rule. The SEC has targeted April 2023 as the target date for adoption. (See this PubCo post.) In the light of some of the results shown, will the new study reinforce the SEC’s inclination to adopt its new proposal?
Will U.S. companies face ESG reporting requirements in the EU?
Some U.S. companies may well have to report on ESG—even if the SEC takes no action on climate or other ESG disclosure proposals! How’s that? According to this press release from the Council of the European Union, the Council and the European Parliament reached a provisional agreement last week on a corporate sustainability reporting directive (CSRD) that would require more detailed reporting on “sustainability issues such as environmental rights, social rights, human rights and governance factors.” The provisional agreement is subject to approval by the Council and the European Parliament. The press release indicates that the requirements would apply to all large companies and all companies listed on regulated markets, as well as to listed small- to medium-size companies (“taking into account their specific characteristics”). Importantly, for companies outside the EU, “the requirement to provide a sustainability report applies to all companies generating a net turnover of €150 million in the EU and which have at least one subsidiary or branch in the EU. These companies must provide a report on their ESG impacts, namely on environmental, social and governance impacts, as defined in this directive.”
Is buying a carbon offset like buying a medieval indulgence?
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. (See this PubCo post. ) 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”?
A jam-packed Spring 2022 agenda for the SEC
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.
CPA-Zicklin Index to cover Russell 1000 companies
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.”
Senate confirms two new SEC Commissioners
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 posts CDI regarding swaps and forward contracts
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.
Working Group petitions SEC to mandate financial disclosure requirements for human capital
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?’”
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