Enforcement has certainly been busy at the end of the SEC’s fiscal year, with disclosure violations receiving their fair of attention. In this action against HP Inc., the company was charged with failing to disclose known trends and uncertainties regarding the impact of sales and inventory practices, as well as failure to maintain adequate disclosure controls and procedures. HP was ordered to pay a penalty of $6 million.
In remarks on Thursday of last week to the Tulane Corporate Law Institute, SEC Commissioner Robert Jackson discussed what he termed to be “the most pressing issue in corporate governance today: the rising cyber threat.” To support his characterization, Jackson reports that, in 2016, there were over 1,000 data breaches with an aggregate cost of over $100 billion, according to the Identity Theft Resource Center. And the issue has “rocketed to the top of the corporate agenda”: “One recent study showed that nearly two-thirds of executives identified cyber threats as a top-five risk to their company’s future. That shows how quickly this has become a board-level issue.”
Yesterday, the SEC announced that it had adopted—without the scheduled open meeting, which was abruptly cancelled with only a cryptic statement—long-awaited new guidance on cybersecurity disclosure. The guidance addresses disclosure obligations under existing laws and regulations, cybersecurity policies and procedures, disclosure controls and procedures, insider trading prohibitions and Reg FD and selective disclosure prohibitions in the context of cybersecurity. The new guidance builds on Corp Fin’s 2011 guidance on this topic (see this Cooley News Brief), adding in particular new discussions of policies and insider trading. While the guidance was adopted unanimously, some of the Commissioners were not exactly enthused about it, viewing it as largely repetitive of the 2011 guidance—and hardly more compelling. Anticlimactic? See if you agree.
by Cydney Posner With the spotlight now on non-GAAP financial measures, companies might find this article in CFO.com to be particularly useful. The article provides practical guidance to help companies establish effective disclosure controls and procedures for non-GAAP financial measures.