TheCorporateCounsel.net

Last Friday, Corp Fin Director John White gave this speech at Northwestern’s “27th Annual Ray Garrett Jr. Corporate & Securities Law Institute” about the compensation disclosures made during this proxy season. In his speech, John White noted that the Staff’s compensation disclosures review project has begun and would be done in the Fall. I believe the Staff intends to finish its review and then announce its final results, rather than commenting on what it finds in a piecemeal fashion.

Executive Compensation Disclosures: Parsing John White’s Speech

There is quite a bit of information in Corp Fin Director John White’s speech. It’s a “must read” speech if you deal with proxy disclosures at all. Here are some highlights:

1. CD&A and Analysis – First and foremost, John spoke about “Analysis (or lack thereof),” a topic we started writing about in The Corporate Counsel even before disclosures were filed. This will continue to be an area of focus during our October 9th event: “Tackling Your 2008 Compensation Disclosures: The 2nd Annual Proxy Disclosure Conference.” The agenda for that Conference will be available next week (and includes John, among other Staffers).

2. Performance Targets and CT Treatment – John also discussed several specific areas that the Staff is focusing on. One area involves performance targets, such as whether companies have properly omitted specific target information (ie. whether they meet the competitive harm standard) as well as looking at the adequacy of the disclosures required if performance target metrics are omitted, i.e. how difficult it will be for the officer – or how likely it will be for the company – to achieve an undisclosed performance level or other factors. John also discussed the problem of negative numbers, disclosure about the CEO’s role in setting compensation and perk disclosure.

3. Disclosure Length – John also weighed in about the length of the compensation disclosures, something I have blogged about several times in the wake of a recent Chairman Cox speech that flagged this issue. Taking the risk that excerpts don’t place the statements in proper context, here are some excerpts from John’s speech on this topic:

– “I also think that criticisms of the length and language of the new disclosures can go too far. One of the primary drivers of length of the disclosure in proxy statements is that executive compensation itself tends to be very complicated and varies significantly in form and function, in spirit and letter, from company to company. Even if plain English principles are faithfully applied, under the new rules there may very well be substantially more disclosure required overall.”

– “Criticisms of the length and language of executive compensation disclosures tend to be fairly amorphous complaints. It is also not necessarily clear—if you agree with those criticisms on their merits—whether the problems or weaknesses leading to those complaints are rooted in the rules themselves, or in companies’ failure to comply with the rules. I would urge people to keep in mind, though, that the Commission was seeking to establish a “layered” disclosure approach, with CD&A as the top layer.”

SEC’s Chief Accountant: No Meddling With FASB

Jack Ciesielski notes in his “AAO Weblog“: According to this article on CFO.com, Chief Accountant Conrad Hewitt appeared to deny that the budget actions were linked to any further SEC gains in control over FASB, saying “The budget coincidentally came at the same time as we were [evaluating] candidates,” adding that the SEC’s role over FASB is outlined in a 2003 agreement between the two organizations.” He also said that “FASB is independent as far as we are concerned.We do not appoint board members.” The remarks took place at a financial reporting conference at Baruch College in New York.

The next big scheduled test of how involved the SEC will be in FASB member selection will come up in less than a year. Next July 1, current board member Mike Crooch will trudge into the sunset, and the machinery behind his replacement will click into action around the beginning of 2008. In addition to the usual guessing games about who will be chosen, there’ll be an added element of suspense surrounding the SEC’s involvement – or laissez-faire.”

Conrad’s remarks come after FASB Chairman Bob Herz admitted to concerns about “control” issues with the SEC – as noted in this CFO.com article, Bob pledges to guard FASB’s independence.