October 24, 2016

Today: “Tackling Your 2017 Compensation Disclosures – Proxy Disclosure Conference”

Today is the “Tackling Your 2017 Compensation Disclosures: Proxy Disclosure Conference”; tomorrow is the “Say-on-Pay Workshop: 13th Annual Executive Compensation Conference.” Note you can still register to watch online by using your credit card and getting an ID/pw kicked out automatically to you without having to interface with our staff. Both Conferences are paired together; two Conferences for the price of one.

How to Attend by Video Webcast: If you are registered to attend online, just go to the home page of or to watch it live or by archive (note that it will take about a day to post the video archives after it’s shown live). A prominent link called “Enter Conference Here” – on the home pages of those sites – will take you directly to today’s Conference (and on the top of that Conference page, you will select a link matching the video player on your computer: Windows Media or Flash Player). Here are the “Course Materials,” filled with 180 pages of talking points & practice pointers.

Remember to use the ID and password that you received for the Conferences (which may not be your normal ID/password for or If you are experiencing technical problems, follow these webcast troubleshooting tips. Here is today’s conference agenda; times are Central.

How to Earn CLE Online: Please read these “FAQs about Earning CLE” carefully to see if that is possible for you to earn CLE for watching online – and if so, how to accomplish that. Remember you will first need to input your bar number(s) and that you will need to click on the periodic “prompts” all throughout each Conference to earn credit. Both Conferences will be available for CLE credit in all states except for a few – but hours for each state vary; see this “List: CLE Credit By State.”

Pay Ratio CDIs: The Haiku!

A few days ago, I blogged that Corp Fin issued these 5 CDIs on Item 402(u). We’re posting memos in our “Pay Ratio” Practice Area on

I couldn’t help repeating this creative haiku about the CDIs, from this blog by Gunster’s Gus Schmidt:

Question 128C.01

That reasonably reflects pay
Can be utilized

Question 128C.02

Hourly pay rates
Can we use to calculate?
No! These will not work

Question 128C.03

To calculate it
You must use recent data
90-day limit

Question 128C.04

Furloughed employees?
You must include them too, but
Use annualized pay

Question 128C.05

What about ICs?
Ignore classification
If you set their pay

More on “The Mentor Blog”

We continue to post new items daily on our blog – “The Mentor Blog” – for members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:

– Restatements Hit a New Low
– ISS’ “2016 Board Practices Study”
– Is Tracking Stock Making a Comeback?
– Audit Report Transparency: Netherlands Trumps US – Hands Down
– Omnicare Applied to Audit Reports

Broc Romanek

October 21, 2016

Corp Fin: New & Revised Rule 701 & 144(d) CDIs

Yesterday, as noted in this Cooley blog, Corp Fin issued one new – and two revised – CDIs dealing with Rule 701 as well as the Rule 144(d) holding period. The 701 CDIs are:

Revised C&DI 271.04
New C&DI 271.24

The Rule 144(d) CDI is:

Revised C&DI 532.06

Audit Committee Financial Experts: Trends

This recent Equilar blog has a nifty chart about the relative trends among industries to have “financial experts” on the audit committee. Interesting, the blog notes that S&P 500 companies had a median of two financial experts in ’15 (with 27% composed solely of financial experts) – up about a third since ’11. Learn more about this topic in our “Audit Committee Disclosure Handbook“…

SOX Compliance Costs & Audit Fees: Continue to Rise

Here’s something from Dan Goelzer of Baker & McKenzie:

Recently, consulting firm Protiviti released its “2016 Survey of Sarbanes-Oxley Act Compliance Costs.” As in its 2015 and 2014 surveys, Protiviti found that, for many companies, costs associated with SOX compliance continue to rise. And, similar to prior years, significant numbers of respondents point to the PCAOB’s inspection program as the cause of these cost increases.

Survey Highlights

Internal compliance costs – The average annual internal cost of SOX compliance for the largest public companies (large accelerated filers) was $1.335 million. For the next tier of public companies (accelerated filers), average annual internal costs averaged $914,000, while still smaller companies (non-accelerated filers) averaged $1.219 million. The highest costs were incurred by emerging growth companies –smaller, recently-public companies – at $1.430 million. On an industry basis, healthcare payers had the highest internal SOX compliance costs ($2.31 million), while media companies had the lowest ($856,000).

External audit fees – Half of large accelerated filers reported that their external audit fee increased in fiscal 2015, while 8 percent reported a decrease, and 42 percent said the fee remained the same. For non-accelerated filers, 41 percent reported an increase, and 52 percent reported a decrease.

External auditor reliance on the work of others – High percentages of companies of all sizes reported that their external auditor was relying “to the fullest extent possible” on the work of others (e.g., internal audit) for the testing of controls over medium- and low-risk processes. For example, 81 percent of accelerated filers indicated that this was the case, as did 95 percent of non-accelerated filers.

Number of entity-level and process-level SOX controls – The average number of entity-level controls reported by survey respondents was 50, of which 60 percent were classified as “key.” The average number of process-level controls reported was 96, of which 63 percent were deemed key.

Changes in SOX compliance – The compliance area in which the highest percentage of respondents reported “extensive/substantial” change in 2016 was process control documentation for high-risk processes. In addition, 26 percent of respondents reported extensive/substantial increases in the testing of controls over management judgments and estimates.

Cybersecurity disclosure impact – One-fifth of respondents stated that their company made a cybersecurity disclosure in fiscal 2015, in accordance with the SEC’s staff’s guidance on disclosure obligations relating to cybersecurity risks and cyber incidents. The significance of this figure is tempered by the fact that 42 percent of respondents didn’t know whether or not such a disclosure had been made. Of those who reported a cybersecurity disclosure, 47 percent said that total hours devoted to Sarbanes-Oxley compliance increased 11 percent or more as a result.

Role of the PCAOB

As was reported in last year’s survey, many respondents blame increases in their Sarbanes-Oxley compliance costs on the activities of the PCAOB. Of those respondents who said that their audit firm required changes to the company’s Sarbanes-Oxley compliance procedures in 2015, 44 percent attributed those changes to the PCAOB’s inspection program. Across all respondents, significant percentages thought that PCAOB inspection reports had an effect on the organization’s Sarbanes-Oxley compliance costs in specific areas. For example, 50 percent thought that the PCAOB’s inspections reports had an extensive/substantial impact on the costs of testing reports and other information generated by the company’s systems; 46 percent thought that the PCAOB had caused increases in the testing of review controls.

The compliance cost impact of the PCAOB’s new related party auditing standard also seems to have been significant. Fifty-eight percent of respondents reported that the company was required to update its documentation to identify related parties as a result of Auditing Standard No. 18 (ASC 2410, which governs the auditing of related party transactions). This documentation updating increased total Sarbanes-Oxley compliance hours by an average of 8 percent.

Not surprisingly in light of the cost impact that respondents thought the PCAOB was having, 75 percent of public company respondents reported that someone in the company was “keeping abreast of guidance on PCAOB inspections issued by the PCAOB.”

Role of the Audit Committee

Protiviti also asked who in the organization had primary responsibility for “executive sponsorship” of Sarbanes-Oxley compliance and who had primary responsibility for “execution.” As to executive sponsorship, 46 percent indicated that the audit committee was the sponsor, while 39 percent identified executive management. These numbers reflect a surprising shift to audit committee responsibility during the past 12 months. In the 2015, only 25 percent pointed to the audit committee as the executive sponsor. With respect to execution responsibility for Sarbanes-Oxley compliance, 14 percent of respondents identified the audit committee in 2016, compared to only 2 percent last year.

Comment: Audit committees may have opportunities to consider whether there are ways to convert some of their company’s SOX compliance costs into an investment in more effective and efficient financial reporting and information gathering processes. Sixty-seven percent of public company respondents believe that the company’s internal control over financial reporting has “significantly/moderately improved” since ICFR auditing was required.

Broken down by size, majorities of companies with revenues over $5 billion and under $500 million agreed with that statement. The survey results indicate that large companies have done better than midsize companies at generating value from SOX compliance. In Protiviti’s view “SOX compliance requires a significant investment for many organizations in terms of budget and hours. But the results reflected [in the 2016 survey] * * * reinforce the reasons these investments are needed and the value they create.”

Broc Romanek

October 20, 2016

Universal Ballots: SEC to Propose Next Wednesday

Yesterday, the SEC posted a Sunshine Act notice for an open Commission meeting to propose universal proxy ballots next Wednesday, October 26th. This controversial rulemaking has been in the works for years, with the House of Representatives going so far to vote a few months ago to stop the rulemaking. Check out this piece on page 5 of the November-December 2014 issue of the Deal Lawyers print newsletter entitled “The Quest for Universal Ballots: Might Boards Benefit Too?”…

In addition, the SEC will vote to adopt rules to facilitate intrastate & regional offerings (amendments to Rule 147 & 504) – and to repeal Rule 505 of Regulation D…

How is Morale at the SEC? A 2016 Job Satisfaction Survey

Here’s the SEC’s “2016 Federal Employee Viewpoint Survey.” You can see how the various Divisions & Offices within the SEC compare to each other, as well as how the responses compare to a government wide ratio. The overall number of responses is pretty high, over 3200 Staffers. Compare the results to the 2014 survey

“Material Plan Amendment” When You Increase Tax Withholding Rate? Nasdaq’s New FAQ

Yesterday, the Nasdaq posted this new FAQ #1269 regarding shareholder approval of plans (also see this Mike Melbinger blog about it):

Question: Is an amendment to an equity compensation plan to increase the withholding rate to satisfy tax obligations, such as from the minimum tax rate to the maximum tax rate, considered a material amendment?

Answer: Generally, an amendment to increase the withholding rate to satisfy tax obligations would not be considered a material amendment to an equity compensation plan. Allowing the holder of an award to surrender unissued shares to pay tax withholdings is similar to settling the award in cash at market price, and neither creates a material increase in benefits to participants nor increases the number of shares to be issued under the plan.

This type of change also is not an expansion in the types of awards provided under the plan. This analysis is the same regardless of whether the plan allows the shares surrendered for tax withholdings to be added back to the pool of shares available for issuance as future awards. Accordingly, an amendment to an equity compensation plan to increase the withholding rate to satisfy tax obligations would not be considered a material amendment to the plan.

Broc Romanek

October 19, 2016

Pay Ratio: Corp Fin Issues 5 CDIs!

Just in time for our “Proxy Disclosure Conference” coming up on Monday – in Houston & by video webconference – Corp Fin issued these 5 CDIs on Item 402(u) yesterday (we’re posting memos in our “Pay Ratio” Practice Area on

New Question 128C.01
New Question 128C.02
New Question 128C.03
New Question 128C.04
New Question 128C.05

Evaluating these Compliance & Disclosure Interpretations will be among the many “pay ratio” discussions taking place over 20-plus panels. Register now!

Transcript: “Board Refreshment & Recruitment”

We have posted the transcript for our recent webcast: “Board Refreshment & Recruitment” – which tackled board diversity disclosure & more!

Should Say-on-Pay Votes Be Binding?

Here’s an excerpt from this blog – “Should Say-on-Pay Votes Be Binding?” – by two Canadians about the effectiveness of non-binding say-on-pay votes (I’ve recently blogged about binding SOP heading perhaps to the UK):

Some findings reveal disturbing and unintended consequences. For instance, studies suggest that shareholders base their votes on the performance of a company’s stock rather than on an analysis of the firm’s compensation policies and practices. If company shares do better than those of its peers, almost any compensation package will be approved. This perverse result tends to increase the pressure on management to focus on short-term stock performance, sometimes through decisions that may negatively affect future performance.

This is not surprising, though. It has become far harder to read and understand the particulars of executive compensation. Indeed, for the 50 largest (by market cap) companies on the Toronto Stock Exchange in 2015 that were also listed back in 2000, the median number of pages needed to describe their executives’ compensation rose from six in 2000 to 34 in 2015, with some compensation descriptions consuming as many as 66 pages. Investors holding shares in hundreds of different firms face a formidable task. The simplest approach is to vote according to the stock’s performance or, more likely, to rely on the recommendations of proxy advisory firms, which also base their “advice” in part on relative stock market performance.

Thus, 66 percent of corporate directors do not agree that say-on-pay resulted in a “right-sizing” of CEO compensation. Yet 83 percent of directors very much agree or somewhat agree that say-on-pay increased the influence of proxy advisors, according to a 2016 PwC and Cleary Gottlieb survey: Boards, shareholders, and executive pay.

Broc Romanek

October 18, 2016

Course Materials Now Available: Many Sets of Talking Points!

For the many of you that have registered for our Conferences coming up next Monday, October 24th, we have posted the “Course Materials” (attendees received a special ID/PW yesterday via email that will enable you to access them; note that copies will be available in Houston). The Course Materials are better than ever before – with numerous sets of talking points comprising 180 pages of practical guidance. We don’t serve typical conference fare (ie. regurgitated memos and rule releases); our conference materials consist of originally crafted practical bullets and examples. Our expert speakers certainly have gone the extra mile this year!

Here is some other info:

How to Attend by Video Webcast: If you are registered to attend online, just go to the home page of or to watch it live or by archive (note that it will take a few hours to post the video archives after the panels are shown live). A prominent link called “Enter the Conference Here” – which will be visible on the home pages of those sites – will take you directly to the Conference (and on the top of that Conference page, you will select a link matching the video player on your computer: Windows Media or Flash Player).

Remember to use the ID and password that you received for the Conferences (which may not be your normal ID/password for or If you are experiencing technical problems, follow these webcast troubleshooting tips. Here are the conference agendas; times are Central.

How to Earn CLE Online: Please read these “FAQs about Earning CLE” carefully to see if it’s possible for you to earn CLE for watching online – and if so, how to accomplish that. Remember you will first need to input your bar number(s) and that you will need to click on the periodic “prompts” all throughout each Conference to earn credit. Both Conferences will be available for CLE credit in all states except for a few – but hours for each state vary; see our “CLE Credit By State” list.

Register Now to Watch Online: There is still time to register for our upcoming pair of executive pay conferences – which starts on Monday, October 24th – to hear Keith Higgins, etc. If you can’t make it to Houston to catch the program in person, you can still watch it by video webcast, either live or by archive. Register now to watch it online.

Register in Houston to Watch In-Person: Starting on Friday, you will no longer be able to register to attend in Houston through this site – but you can still register to attend when you arrive in Houston! You just need to bring payment with you to the conference and register in-person. Through Thursday, you can still register online to attend in Houston…

Auditor Liability: Malpractice Claims Remain Low

Here’s an excerpt from this “Audit Analytics” blog about auditor liability:

For five consecutive years, the number of auditor malpractice claims against one of the Big Four auditors has stood in the single digits. A high of 46 claims was reached in 2002 – reflecting the chaos in the wake of the dot-com bubble – whereas only two claims were filed during each of the years 2014 and 2015. 2015 was also a relatively quiet year for auditor malpractice settlements. The totals of such cases were not enough to break into the Top 50 All Time Accounting Malpractice Settlements since 1991- the threshold of which is now $68 Million, as shown in the chart below.

Here’s an excerpt about restatements:

After six years of relatively steady levels, the total number of Financial Restatement disclosures filed in 2015 dropped by 12.7%. The total number of Re-issuance Restatements and the number of companies restating reached a low of 161 disclosures issued by 141 companies. Similarly, the number of Revision Restatements in 2015 also showed a decline. They dropped to 516 from 605 the year before, and accounted for 76.2% of the restatements disclosed.

The largest negative restatement in 2015 came from Alphabet, Inc. (Google’s parent). The $711 million adjustment reduced Alphabet’s previously reported 2014 net income by roughly 2%. Although the $711 million adjustment was the largest in the past three years, it was still dramatically less than amounts disclosed from 2002 to 2006.

SEC Filings: Best of 2015

Here’s an excerpt from this “Audit Analytics” blog (also see this “Part 2” of that blog):

In this post, our second annual “best-of-the-year” review, we’ll look at 2015 filings for some of the highlights of the year: the largest restatement, for example, and the biggest overseas stash. We’ll also look at lengthy comment letter correspondence, give a quick recap of auditor ratification, present some notable non-timely filings, and update disclosure controls.

Broc Romanek

October 17, 2016

Tandy Reps: No Longer Required for Acceleration Requests Too!

As John blogged recently, Corp Fin recently announced that it would no longer require companies to include “Tandy letter” representations in their responses to Staff comments. The question that I got from some members was: “I presume Tandy reps are still required for acceleration requests?” The answer is “no, the Staff no longer seeks Tandy language in acceleration requests.” This is consistent with the rationale for no longer requiring the language in comment response letters…

Here’s a blog by Keith Bishop highlighting that he had questioned whether Tandy reps were enforceable several months ago. By the way, these were called “Tandy” representations because of a position that the SEC Staff took in the mid-’70s against the Tandy Corporation…

Tomorrow’s Webcast: “Virtual-Only Annual Meetings – Nuts & Bolts”

Tune in tomorrow for the webcast – “Virtual-Only Annual Meetings: Nuts & Bolts” – to hear HP’s Katie Colendich, Broadridge’s Cathy Conlon, Ciber’s Sean Radcliffe, GoPro’s Eve Saltman and the Veaco Group’s Kris Veaco as they describe the recent trend towards virtual-only annual meetings, including numerous first-hand accounts of the processes necessary to pull them off.

Political Contributions: Senator Warren Still Red Hot

As noted in this WSJ article, Senator Elizabeth Warren recently wrote this scathing letter to President Obama about SEC Chair White’s failure to conduct political contribution disclosure rulemaking. I have blogged about this saga before…

Here’s a blog by Kevin LaCroix about Warren’s letter, noting it came on the heels of the SEC announcing record Enforcement activity…

Broc Romanek

October 14, 2016

PCAOB Inspections: Good for Auditors’ Business

This Audit Analytics blog highlights a recent study that suggests PCAOB regulation may be good for an auditor’s business:

In a recent paper titled “Regulatory Oversight and Auditor Market Share,” authors Daniel Aobdia and Nemit Shroff look into the PCAOB’s role in contributing to the perception of an auditor’s assurance value, and whether or not it has an effect on an auditor’s market share. If external stakeholders perceive the PCAOB inspection process to increase the quality of an inspected firm’s audit, then, they hypothesize, the demand for the inspected firm’s audits will increase.

Since all accounting firms that audit US publicly-traded companies are subject to PCAOB oversight, the study looked abroad to measure the effect of regulation on market share.  The study concluded that firms with positive PCAOB inspection reports realized bottom-line benefits:

PCAOB-inspected firms do indeed see an increase in market share relative to the firms that are not inspected by the PCAOB. According to the data, the average inspected auditor’s market share increased by 0.4 to 0.9 percentage points, or 3.5% to 6.4%. When looking at only auditors who received substantial negative criticism, however, they found that, true to their hypothesis, the auditors experienced no change in market share.

The study notes that the effect of a favorable PCAOB inspection was particularly significant in countries with higher levels of corruption.  Firms with good inspection outcomes saw an increase of 0.5 to 1.4% in high-corruption countries, while those in countries with a lower level of corruption only saw an increase of -0.4 to 0.4.

“Critical Audit Matters” Disclosure: Insurance Policy for Auditors? 

As Cooley’s Cydney Posner points out in this blog, accounting firms have not been big fans of the PCAOB’s proposal to make audit reports more informative through disclosure of “critical audit matters” – or “CAMs.”  Under the latest version of the proposal, critical audit matters would be defined to include any matter communicated to the audit committee that is material to the financial statements, and involves especially challenging, subjective, or complex auditor judgment.

According to a recent study, auditors may want to rethink their opposition to this proposed disclosure requirement:

It’s somewhat ironic to see the results of the study showing, among other things, that disclosure of CAMs could help protect auditors from legal exposure if a misstatement were subsequently discovered in the CAM area.

The study concluded that the “types of CAMs illustrated by the PCAOB are more likely to prompt a ‘disclaimer effect’ by warning users of the inherent subjectivity and complexity associated with auditing CAM areas. Specifically, we find that CAM disclosures lead to less confidence in the CAM area before a misstatement is revealed and less assessed auditor responsibility after a misstatement is revealed in the CAM area.”

Transcript: “Middle Market Deals – If I Had Only Known”

We have posted the transcript for our recent webcast: “Middle Market Deals: If I Had Only Known.”

John Jenkins

October 13, 2016

Whistleblowers: Court Adds “Front Pay” to Award

This blog discusses the SDNY’s recent decision in Perez v. Progenics Pharmaceuticals – which added $2.7 million in front pay to a whistleblower’s $1.6 million jury award for retaliation.  Here’s an excerpt:

The Court granted Perez’ motion for reinstatement in the form of an order for “front pay” in an amount over $2.7 million.  The Court did so because, among other things, it found Perez had no reasonable prospect of obtaining comparable alternative employment.  The amount of the award was based on a conservative estimate of expected earnings based on Perez’ age at the time of the verdict until a reasonable retirement age.

SOX Section 806 says that a successful plaintiff in a retaliation case is entitled to “all relief necessary” to make that individual whole – but the opinion cited only two cases when analyzing the propriety of a front pay award, neither of which involved a Sarbanes-Oxley retaliation case.

“Dela-fornia” Corporations?

Steven Davidoff-Solomon’s recent “Deal Professor” column notes that 20% of NYSE & Nasdaq-listed companies are headquartered in California. In this blog, Keith Bishop analyzes what that means for Delaware corporations that call “The Golden State” home:

Delaware continues to lead all other states as the jurisdiction for incorporation. This doesn’t necessarily mean that Delaware’s corporate law necessarily applies to Delaware corporations headquartered in California. Here are a few provisions of the California General Corporation Law that are explicitly applicable to foreign corporations having their principal executive offices in the state:

– Annual report requirement (Section 1501)
– Shareholder list inspection (Section 1600)
– Shareholder inspection of books & records (Section 1601)

But wait! There’s more – regardless of where you’re heaquartered:

Other California statutes apply to foreign corporations without regard to the location of their principal executive offices, including:

– Effectiveness of limitations in articles (Section 208)
– Issuance of replacement certificates (Section 419)
– Immunity for certain share transfers (Section 420)
– Action to contest election or appointment made in California (Section 719)
– Shareholder derivative actions (Section 800)
– County assessor right to California property records (Section 1506)
– Shareholder right to obtain results of shareholder meeting (Sections 1509-1511)

If your foreign corporation isn’t a listed company, then read the rest of Keith’s blog & you’ll find that this laundry list just scratches the surface when it comes to the applicability of California’s corporate statute.

Broc & John: Shareholder Proposal Reform

Broc & I had a lot of fun taping our 4th “news-like” podcast. This 8-minute podcast is about shareholder proposal reform & sports blogs. I highly encourage you to listen to these podcasts when you take a walk, commute to work, etc. And as we tape more of these, it’s inevitable we’ll figure out how to be more entertaining…

This podcast is also posted as part of our “Big Legal Minds” podcast series. Remember that these podcasts are also available on iTunes or Google Play (use the “My Podcasts” app on your iPhone and search for “Big Legal Minds”; you can subscribe to the feed so that any new podcast automatically downloads…

blm logo

John Jenkins

October 12, 2016

Survey Results: Registration Statement Due Diligence

Here’s the survey results from our recent survey about registration statement due diligence:

1. Prior to the effectiveness of a registration statement, we do this:
– No formal action was taken to bolster a due diligence defense – 31%
– Management reported to the board about the contents of the registration statement – 36%
– Counsel reported to the board about the contents of the registration statement – 31%
– Some other process was followed to bolster a due diligence defense – 29%

2. If no formal action was taken to bolster a due diligence defense, the reasons include:
– Counsel did not alert us to this issue – 11%
– Director personal liability seems remote – 34%
– Board relied on the audit committee’s prior review of the incorporated SEC filings, which are the likely source of any liability – 66%
– Process takes too much time for the value that it provides – 29%

Please take a moment to participate anonymously in this “Quick Survey on Management Representation Letters” – and this “Quick Survey on Board Minutes & Auditors.”

Board Diversity: Disclosures Few & Far Between

A new Equilar study says that companies aren’t saying much about board diversity in their SEC filings:

Lacking any regulatory requirement to disclose diversity on their boards of directors, few companies explicitly detail this information in public filings. Just 12.8% of S&P 500 companies included information on board diversity in terms of race or ethnicity in their most recent proxy statements, according to a new study from Equilar.

The tech sector lagged almost every other industry, with only four (5.7%) of the technology companies in the S&P 500 disclosing information about board diversity in their 2016 proxy statements. Oil & gas companies were also lacking when it came to diversity disclosure – only one company included this type of information in its 2016 proxy statement.

According to the report, tech companies have improved board diversity in recent years – but still have far to go:

While still lagging the overall S&P 500, the technology sector did see the largest percentage growth of women on boards during the last five years, according to the Equilar study. In 2012, women held 14.4% of tech board seats, and that percentage increased to 21.0% in 2016. However, that growth still was not enough to reach the overall S&P 500 average—21.3%—nor up its ranking in comparison to other sectors.

Women on Boards: Benefits of Gender Diversity

While we’re on the topic of gender diversity, this recent CFA Institute blog highlights the results of an MSCI study on women serving on corporate boards in the US and other developed & emerging markets.  It also cites some interesting results associated with increasing the gender diversity of corporate boards:

– Companies that had strong female leadership generated a return on equity of 10.1% per year versus 7.4% for those without (on an equal-weighted basis).

– Companies lacking board diversity tend to suffer more governance-related controversies than average.

– Strong evidence was not found that having more women in board positions indicates greater risk aversion.

John Jenkins

October 11, 2016

New Accounting Standards: SEC Staff on Best Practices

This Deloitte memo reviews recent comments by senior Staffers from the SEC’s Office of Chief Accountant addressing best practices in implementing the upcoming new accounting standards on revenue recognition, leases & credit losses.  Specific recommendations include:

– Management may need to exercise greater judgment under the new credit loss ASU and should implement any changes to internal controls necessary “to support the formation and enforcement of sound judgments” under the new standard.

– Auditor input regarding the implementation of new accounting standards and the accounting for complex transactions will not raise independence issues so long as management makes the final determination based upon its own analysis as to the accounting used, and the auditor does not design or implement accounting policies.

– When a company can’t reasonably estimate the impact of adopting the new standards, it should consider providing additional qualitative disclosures about the significance of the impact on its financial statements. The SEC staff would expect such disclosures to include a description of:

– The effect of any accounting policies that the registrant expects to select upon adopting the ASU(s).

– How such policies may differ from the registrant’s current accounting policies.

– The status of the registrant’s implementation process and the nature of any significant implementation matters that have not yet been addressed.

Also see this blog that Broc ran last week on our “Mentor Blog” entitled “Disclosure of New Accounting Standards: SEC Seeking Incremental Qualitative Disclosures.”

New Accounting Standards: KPMG Says “Get Moving!”

Meanwhile, in this memo, Baker & McKenzie’s Dan Goelzer notes that KPMG is sounding the alarm about a lack of readiness for two of these new accounting standards with rapidly looming effective dates. Companies must apply FASB’s new revenue recognition standard for periods beginning after December 15, 2017 – while the new lease accounting standard kicks in a year later.

KPMG reports that more than 2/3rds of companies are still in the assessment phase when it comes to the new revenue recognition standard – and that less than half have begun to assess the impact of the new lease accounting standard. Here’s an excerpt from the memo:

Audit committees should be actively monitoring the company’s plans and progress with respect to implementation of these new standards. Given the importance of revenue recognition to virtually all companies, and the fast-approaching effective date, a realistic work plan and adequate resources for implementation of that standard are becoming critical priorities. KPMG states: “[I]t is becoming increasingly evident that some companies will be forced to implement the standard using manual processes and controls with the ability to introduce system changes until sometime after the effective date. As reliance on manual processes increases, companies will be faced with heightened risk of errors, increased costs, and less efficient operations.”

While there is somewhat more time available for implementation of the leasing standard, audit committees of companies that engage in any significant amount of leasing should make sure that the company has an implementation plan and has begun its assessment efforts.

More on “The Mentor Blog”

We continue to post new items daily on our blog – “The Mentor Blog” – for members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:

– Boards: Portfolio Managers as New Directors
– LSE: Changes AIM Rules to Reflect ‘Market Abuse Regulation’
– PwC Violates Auditor Independence Rules – Yet Again
– US Foreign Bond Issuers: Fed Cracks Down on Form SLT Reporting
– Delaware Supreme Court Affirms Chancery’s Lack of Damages Award as Remedial Discretion

John Jenkins