TheCorporateCounsel.net

Monthly Archives: July 2017

July 31, 2017

Sarbanes-Oxley Turns 15! We Get Personal

It’s hard to believe that Sunday was the 15th anniversary of SOX. Around here, we aren’t just dwelling on the “Sarbanes-Oxley Blues” – we’re also sharing personal reflections on the landmark law. Here are mine:

I was a college junior when Enron & WorldCom imploded & my accounting friends lost their Arthur Andersen offers. Despite massively changing the oversight framework for financial reporting, I don’t recall SOX being discussed in my business classes – or during my following years in law school.

When I became a bright-eyed law firm associate, it felt like SOX had always existed. The rules seemed natural to me: Why wouldn’t the CEO & CFO read SEC filings & certify their accuracy? Why would anyone other than independent directors oversee financial reports? Is there anything more suspenseful than monitoring the 404(b) phase-ins & exclusions – a tradition that lives on even today?

I’m more realistic after 10+ years of explaining – and helping in-house counsel explain – the reasons for SOX & related rules to execs who weren’t always keen on “independent oversight” or “transparent disclosure.” This EY memo suggests that financial reporting has improved. But executives continue to gamble with misleading & opaque financial calculations – and it’s clear that SOX didn’t save us from a “check-the-box” mentality. We keep playing the same game by different rules – forgetting the main principles.

Broc’s 10¢ on Sarbanes-Oxley

Broc has these five random thoughts about Sarbanes-Oxley:

1. I never liked calling it “SOX” – and I really disliked those that called it “Sar-Box.”

2. As I’ve blogged before, Sarbanes-Oxley was somewhat of a surprise at the time because the legislative bill seemed dead. Then WorldCom collapsed & Congress passed the legislation in a hurry. In this blog, Lynn Turner notes that there was some thought put into the bill.

3. It’s interesting to recall what the top issues were initially. In August 2002, the biggest concern involved CEO/CFO certifications and the mechanics of how those newfangled things worked, which really weren’t fully ironed out for several months. With a smile, I remember the chaos as I put together a last-minute teleconference regarding certifications (just two-days notice) and we had an incredible turnout as the first batch of certs were due to be filed the next week. It was wild, man. Better than Woodstock.

Can you imagine that internal controls were nowhere on the radar screen at the time? In fact, my March 2003 webcast on the topic (which I appropriately labeled then as a “sleeper,” thanks to a memorable conversation with John Huber) remains the most sparsely-attended webcast I have held in my 15 years of hosting them. Look back at the law firm memos drafted right after SOX was passed and you will not find anyone predicting that Section 404 was something formidable. That was because we all only had the bandwidth to tackle the numerous new requirements that were applicable immediately – and Section 404’s implementation seemed so far away.

4. Sadly, Mike Oxley passed away a few years ago. It was a thrill to interview Mike at our conference. A true gentleman. You could see why the people in his hometown voted him into Congress. Mike had six “hole-in-ones” during his lifetime. Six!

5. Way back then, I light-heartedly created a character named “Billy Broc” Oxley in jest. Dave was “The Animal” Sarbanes. We made short funny videos for a feature called “The Sarbanes-Oxley Report.” My favorites remain “Bad Hair Day” – and “Billy Broc’s Dream.” The margins were fabulous…

John’s 10¢ on SOX

John has these random thoughts about Sarbanes-Oxley:

Enron, WorldCom, Tyco – I can remember when these were some of the most respected and admired companies in America. I think that’s what made the corporate scandals of the first years of the 21st Century so shocking. These guys were the bluest of the blue chips, and the revelation of their greed and corruption was a cold slap in the face to investors and ordinary Americans. The scandals fundamentally changed the way a lot of people thought about American corporations and those who ran them.

And that begat Sarbanes-Oxley, an entirely necessary statute for which I have no love whatsoever. Yes, corporate governance changes had to be made, and there’s a lot – particularly in the area of internal controls – that Sarbanes Oxley set in motion that has benefitted corporations and investors. But a big price has been paid too.

The exponential growth in demands made on directors in the name of “good governance” has left them with less and less time to focus on the business. Boards have become more bureaucratic and internally focused. Consultants and governance experts have multiplied. Corporate governance flavors of the month have proliferated and become “must haves.” Disclosure documents have become increasingly full of trivial information that’s costly to generate.

Too often, I think, investors and companies have drunk the Kool-Aid without really examining the underlying principles. For instance, I wonder, in 50 years, if people will still think it was a good idea to require a majority of the board of the world’s largest corporations to be comprised of outsiders, with no prior experience in the company’s business? In an environment where directors who make compensation decisions are only liable for “waste”, is 40 pages of executive comp disclosure really good for much more than providing CEOs with a chance to pour over competitors’ disclosures and come up with a detailed wish list of their own?

And don’t get me started on the Governance Industrial Complex. . .

But in the end, corporate tool that I am, I still have to concede that Cassius was right – “the fault, dear Brutus, is not in our stars, but in ourselves.” We’re sleeping in the bed that we made.

Liz Dunshee

July 28, 2017

Survey Results: Pay Ratio Readiness

Here’s the results from our recent survey on pay ratio readiness:

– Fully prepared – even prepared draft disclosure – 2%
– Quite prepared – but haven’t prepared draft disclosure – 13%
– Somewhat prepared – running pay calculation & statistical scenarios – 20%
– Barely prepared – still assessing our workforce – 56%
– Wasn’t pay ratio repealed? – 8%

Transcript Available: “Pay Ratio Workshop – What You Need to Do Now”

For those registered for our comprehensive “Pay Ratio & Proxy Disclosure Conference“, we have posted the transcript for our popular webcast: “Pay Ratio Workshop – What You Need to Do Now.”

Pay Ratio Conference: Discounted Rate Ends Today, Friday

Last chance to register at a reduced rate for our comprehensive “Pay Ratio & Proxy Disclosure Conference.” The discount expires at the end of today, Friday, July 28th. New Corp Fin Deputy Director Rob Evans will open the event.

It doesn’t matter whether you can make it to DC – because the October 17-18th Conference is available to watch online by video webcast, live on those specific days or by video archive at your convenience. And in addition to the October Conference, you gain access to three pre-conference webcasts. And a set of “Model Pay Ratio Disclosures” in both PDF & Word format.

The first webcast was last week & that 75-minute audio archive and transcript are available now. The second webcast is on August 15th; the third webcast is September 27th.

Register Now – Discount Ends Today, Friday: This is the only comprehensive conference devoted to pay ratio. Here’s the registration information for the “Pay Ratio & Proxy Disclosure Conference” to be held October 17-18th in Washington DC and via Live Nationwide Video Webcast. Here are the agendas – 20 panels over two days. Register by July 28th to take advantage of the 10% discount.

Liz Dunshee

July 27, 2017

Non-GAAP: Get it Wrong – Go to Jail?

The “Big News” first. We just calendared a webcast – Non-GAAP Disclosures: Corp Fin Speaks – featuring Corp Fin’s Chief Accountant Mark Kronforst & Dave Lynn. They will discuss what companies are doing – and should be doing – in the wake of the first year’s worth of Corp Fin comment letters since last year’s CDIs.

Anyway, some may be inclined to grumble about how Corp Fin is scrutinizing the way companies use undefined non-GAAP terms, but I think most people would prefer that scrutiny to the NY US Attorney’s approach – sending a CFO to jail for using an undefined non-GAAP term in an allegedly fraudulent way.

Adjusted funds from operations – “AFFO” – is a widely used non-GAAP metric among REITs, but the Staff hasn’t provided any guidance on how it should be calculated. Last month, the former CFO of American Realty Capital Partners was convicted of fraud for the way in which his company used this metric – an outcome that this Forbes article says amounted to “rule-making for the SEC on materiality by criminal indictment and conviction.” Here’s an excerpt:

The SEC has not issued a specific rule or guidance as to how an issuer should calculate the AFFO metric. And, there is no regulatory guidance as to how Mr. Block should have made the reconciliation. There has been a lot of demand for the SEC to do more rule-making in this space. Possibly, this verdict will result in a louder cry for rule-making. Meanwhile, the verdict is a warning shot across the bow for corporate officers publishing and discussing non-GAAP metrics.

Regardless of the merits of this criticism, the case is a reminder that non-GAAP disclosures are subject to close scrutiny – and not just by the SEC. In the current environment, companies & officers should not expect to be cut a lot of slack by the SEC – or federal prosecutors – for “creativity” in how undefined non-GAAP metrics are used.

Non-GAAP: Corp Fin on “Free Cash Flow” Use

This recent MarketWatch article says that Corp Fin is scrutinizing companies’ use of “free cash flow” as a non-GAAP measure – and “has warned more than 20 companies in the last six months about their potential misuse use of the non-standard metric “free cash flow.”

Actually, this kind of warning from Corp Fin goes back far beyond the May 2016 CDIs, as that language dates back to June 2003 FAQs. We believe that the Staff has been issuing comments about how FCF is calculated for nearly 15 years with no change. The Staff did add a single – and obvious – sentence to that 2003 guidance, but it was not for a widespread problem. Corp Fin added: “Also, free cash flow is a liquidity measure that must not be presented on a per share basis.”

While free cash flow refers generally to operating cash flow less “cap ex,” it doesn’t have a standard definition. Despite that, it’s a metric that investors really like. As this Fredrikson & Byron blog points out, that combination of factors may be the reason for the Staff’s close watch on the way companies use it.

Non-GAAP: Corp Fin (Once) Said “Tone it Down”

In other non-GAAP news, in this article, the WSJ reported that Corp Fin told one major airline to tone down the praise of a non-GAAP measure. Here’s the Staff’s comment letter – which notes that the comment also applies to the company’s earnings releases. Here’s an excerpt from the WSJ article:

American Airlines Group removed certain “descriptive language” from its financials at the behest of the Securities and Exchange Commission, according to recently released correspondence. The regulator directed the airline to stop telling investors that numbers inconsistent with standard accounting were “more indicative” of company performance and “more comparable” to metrics reported by other major airlines. American Airlines, in an April 3 letter to the SEC, said it would drop the references from its future filings and replace them with language that describes adjusted measures as useful to investors.

Note that this clearly is not a trend – it would not surprise us at all if that was the only comment of its kind. The Staff did indeed say “tone it down” – but I’m not sure how much that matters if they did it once – or even a handful of times. We’re not hearing much in the way of a broad warning about this kind of thing when the Staff is out speaking.

Don’t forget to tune into our September 13th webcast – “Non-GAAP Disclosures: Corp Fin Speaks” – featuring Corp Fin’s Chief Accountant Mark Kronforst & Dave Lynn. They will discuss what companies are doing – and should be doing – in the wake of the first year’s worth of Corp Fin comment letters since last year’s CDIs.

John Jenkins

July 26, 2017

Initial Coin Offerings: The SEC Speaks. . .

Yesterday, I blogged about “initial coin offerings” – or ICOs – over on “The Mentor Blog.”  The ink on that blog was barely dry when the SEC weighed in with its own thoughts – in the form of a Section 21(a) Report addressing the status of “digital assets” under the Securities Act.

Guess what? Despite claims that “coins” aren’t securities, the SEC sure thinks they can be.  Here’s an excerpt from the SEC’s press release on the Report:

The SEC’s Report of Investigation found that tokens offered and sold by a “virtual” organization known as “The DAO” were securities and therefore subject to the federal securities laws. The Report confirms that issuers of distributed ledger or blockchain technology-based securities must register offers and sales of such securities unless a valid exemption applies. Those participating in unregistered offerings also may be liable for violations of the securities laws. Additionally, securities exchanges providing for trading in these securities must register unless they are exempt.”

The Report was accompanied by a joint statement from Corp Fin & Enforcement and an Investor Bulletin on ICOs. We’re posting memos in our “Definition of ‘Securities” Practice Area.

Materiality: SEC’s Investor Advocate Tells FASB What It Thinks

I thought this recent letter from the SEC’s Office of the Investor Advocate on FASB’s proposal to change its definition of “materiality” was worth noting.

FASB proposes to conform its approach to financial statement materiality to the judicial definition of materiality that applies in other contexts. Right now, there’s a disconnect between the two standards. Instead of requiring that there be a “substantial likelihood” that information would be material, FASB’s Concept Statement No. 8 currently says information is material if “omitting it or misstating it could influence decisions” that users of financial statements make.

Business groups have applauded the proposed change, but many investor groups have panned it – and the Investor Advocate’s letter provides a fairly comprehensive overview of their objections. It also offers up a revised proposal that would have FASB return to its previous materiality definition – which was generally consistent with the legal concept of materiality – but heavily salt that definition with the “qualitative” considerations embodied in SAB 99.

Materiality: An Accounting Decision?

I can’t resist pointing to one section of the Investor Advocate’s letter to FASB that had me – and I think will have many other lawyers – rolling their eyes. Here’s one of the concerns investors have about the proposed change in FASB’s materiality standard:

The proposals would move decision-making on materiality from accountants to lawyers. The SEC’s Investor Advisory Committee, in a theme echoed by other investors, warned in its comment letter of the risk “that, by replacing the current, differentiated professional accounting standard with a case-law driven legal standard, close questions of judgment will ultimately devolve to lawyers rather than accountants.”

You’ve got to be kidding! If I had a dollar for every time an accountant said “well, it’s a materiality issue – and that’s a legal call,” I’d be sipping Margaritas on my private island beach. However, I do want to thank Investor Advocate for this comment – which I intend to laminate so I will be sure to have it to share with the next accountant who tries to artfully dodge the financial statement materiality bullet in this fashion.

John Jenkins

July 25, 2017

Regulatory Reform: What Do Investors Think?

Legislative efforts at governance & disclosure reform – such as the “Financial Choice Act” – have gotten a lot of attention this year. This Rivel Research study asked institutional investors what they thought of those efforts – and the short answer is “not much.”

North American & European institutional investors oppose major change in the US governance regulatory framework. Here are some of the study’s conclusions:

– Two-thirds (65%) believe a weakened SEC will have a negative effect on governance outcomes.
– A large plurality (43%) oppose efforts to pare back the Dodd-Frank Act. Only 18% support it. The rest are uncertain.
– There is widespread opposition (among two in three proxy voters) to rolling back the Act’s mandates for board diversity disclosure, political spending disclosure, & separation of Chair/CEO
– Even if Dodd-Frank is pared back, the vast majority of investors believe that companies should continue to honor/abide by the rules originally set forth within. In fact, many will be seeking expanded disclosure in many areas.

In the event that key governance & disclosure mandates are repealed, the study also says that companies should prepare for increased engagement – nearly half of the investors said they would ramp up their efforts to engage companies on governance matters. What’s more, 41% say they’ll be more inclined to support an activist if the rules are pared back.

We’re posting memos on reform ideas in our “Regulatory Reform” Practice Area.

Is Sarbanes-Oxley in the Cross-Hairs?

Now that the House of Representatives has passed the Financial Choice Act, is Sarbanes-Oxley next on its “hit list”? This recent blog from Cooley’s Cydney Posner says a key part of it just might be. Here’s the intro:

What’s next for the House after taking on Dodd-Frank in the Financial CHOICE Act? Apparently, it’s time to revisit SOX. The Subcommittee on Capital Markets, Securities, and Investment of the House Financial Services Committee held a hearing earlier this week entitled “The Cost of Being a Public Company in Light of Sarbanes-Oxley and the Federalization of Corporate Governance.”

During the hearing, all subcommittee members continued bemoaning the decline in IPOs and in public companies, with the majority of the subcommittee attributing the decline largely to regulatory overload. A number of the witnesses trained their sights on, among other things, the internal control auditor attestation requirement of SOX 404(b). Is auditor attestation, for all but the very largest companies, about to hit the dust?

Whistleblowers: $61 Million Reasons to Drop a Dime!

Holy Cow! I guess this isn’t signed, sealed & delivered just yet, but the SEC Staff is apparently recommending a $61 million award to 2 whistleblowers who played a role in a $267 million settlement with J.P. Morgan. Here’s an excerpt from an AdvisorHub article:

Two whistleblowers whose outing of JPMorgan Chase’s bias toward selling wealth customers in-house funds led to the bank’s $267 million settlement with the government will receive payments equal to 23% of the award, according to a “preliminary determination” letter by SEC claim-review staffers.

The letter, a copy of which whistleblower Johnny Burris provided to AdvisorHub and other publications, recommends that the regulator pay one whistleblower 18% of the award, or $48.1 million, while a second receive 5%, or $13.1 million. The SEC by policy does not name whistleblower award recipients, and Burris would not confirm whether he was one of the successful claimants.

The requests of four other claimants for an award were denied because their information did not contribute to the SEC’s examinations, corollary investigations or significantly affect its enforcement action against JPMorgan, according to the letter. The award would far top the previous record of $30 million, which the SEC announced in September 2014.

John Jenkins

July 24, 2017

SEC’s Reg Flex Agenda: Where Did Those Dodd-Frank Rules Go?

Normally – as I have blogged many times (here’s one) – the SEC’s Reg Flex Agendas tend to be “aspirational.” But perhaps this time is different.

As part of a federal agency-wide reveal of the new Administration’s plans for rulemaking, the SEC posted the latest version of its Reg Flex Agenda last week. This agency coordination is the Administration’s “unified agency regulatory agenda.”

This Reg Flex Agenda is notable for what it omits – get a load of what’s not on the list:

– Pay-for-performance
– Clawbacks
– Hedging
– Universal proxy
– Clawbacks of incentive compensation at financial institutions

These Corp Fin rulemakings were among the ones moved from the “Proposed Rule Stage” list to the “Long-Term Actions” list.

Does this mean that the SEC doesn’t intend to ever proceed with adopting any of the outstanding Dodd-Frank rules that are still in the proposal stage? We don’t know. As this Cooley blog notes, the Preamble indicates that it reflects “only the priorities of the Acting Chairman [Michael Piwowar], and [does] not necessarily reflect the view and priorities of any individual Commissioner.” Since the information in the Reg Flex Agenda was accurate as of March 29th – and SEC Chair Jay Clayton wasn’t confirmed until May – it’s unknown how Chair Clayton feels about all this.

But it might be a sign – because as noted in this article from “The Hill”: “OMB said agencies for the first time will post a list of “inactive” rules to notify the public of regulations that are still being reviewed or considered.” Hat tip to Scott Kimpel of Hunton & Williams for the heads up!

This all doesn’t impact the implementation of the pay ratio rule – because that rule was already adopted a few years ago. It just had a delayed effectiveness date. So it would never show up on a Reg Flex Agenda unless there was rulemaking to delay or repeal it…which there is not…

Pay Ratio Conference: Discounted Rate Ends This Friday

Last chance to register at a reduced rate for our comprehensive “Pay Ratio & Proxy Disclosure Conference.” The discount expires this Friday, July 28th. New Corp Fin Deputy Director Rob Evans will open the event.

It doesn’t matter whether you can make it to DC – because the October 17-18th Conference is available to watch online by video webcast, live on those specific days or by video archive at your convenience. And in addition to the October Conference, you gain access to three pre-conference webcasts. And a set of “Model Pay Ratio Disclosures” in both PDF & Word format.

The first webcast was last week & that 75-minute audio archive is available now – a transcript of that program is coming soon. The second webcast is on August 15th; the third webcast is September 27th.

Register Now – Discount Ends This Friday: This is the only comprehensive conference devoted to pay ratio. Here’s the registration information for the “Pay Ratio & Proxy Disclosure Conference” to be held October 17-18th in Washington DC and via Live Nationwide Video Webcast. Here are the agendas – 20 panels over two days. Register by July 28th to take advantage of the 10% discount.

Exchange Act Filing Status: It’s That Time Again. . .

This Bass Berry blog reminds everybody that it’s time to check your filing status for 2018 Exchange Act reports:

While the determination of whether a company will qualify as an “accelerated filer” or “large accelerated filer” for 2018 will not take effect until the date your Form 10-K is filed for fiscal 2017 (or, if earlier, your 10-K due date), the determination of your public float is calculated as of the last business day of the most recently completed second fiscal quarter, or June 30 for companies with a calendar fiscal year.

Broc Romanek

July 21, 2017

Proxy Voting: Increase in Directors Getting “No” Votes

It looks like investors used their votes to send a message to some directors during this year’s proxy season – and it wasn’t “keep up the good work.”  This excerpt from a recent Bloomberg article explains:

Shareholders have withheld 20 percent or more of their votes for 102 directors at S&P 500 companies so far this year, the most in seven years, according to ISS Corporate Solutions, a consulting firm specializing in corporate governance. While largely symbolic, the votes at companies such as Wells Fargo and Exxon Mobil are recognized as signals of displeasure and put pressure on boards to engage.

“Institutional investors are becoming more actively involved in communicating displeasure through their votes,”said Peter Kimball, head of advisory and client services at the consulting firm, a unit of Institutional Shareholder Services. “Voting against directors at large-cap S&P 500 companies is a way for an institution to send a signal to other, smaller companies about the actions that they don’t like. That feedback trickles down.”

We’ve previously blogged about Blackrock & State Street’s increasing assertiveness when it comes to pushing for board action on their priorities – and their greater willingness to use their voting clout to send a message to boards that aren’t responsive.  The results from this proxy season suggest that other institutions may be taking the same approach.

Boards: What Do Proxy Advisors Want in a New Director?

I’m trying not to take this personally, but according to this recent  “Directors & Boards” article, I’m everything that proxy advisors don’t want when it comes to new director candidates – “male, pale & stale.”  So who do proxy advisors want instead of me?  Here’s the article’s answer:

If proxy advisors – the firms that provide public company research and guidance to large investors – were writing a personal ad for the perfect board director it would probably go a bit like this:

Looking for diverse director with integrity who enjoys face-to-face communication with investors.

That profile is based on new report from “The Conference Board” called “Just What is a Director’s Job?” The report was the product of a roundtable of more than 50 proxy advisors, including ISS & Glass Lewis. The description of the proxy advisors’ “dream date” highlights not merely the growing importance of board diversity, but also the central position that shareholder engagement plays in their views about what makes a good corporate director.

Secret Societies: The Illuminati, Knights Templar & “The Big Four”?

Pretty interesting stuff in this European Parliament group study on the “opacity” of the organizational structure of the Big Four accounting firms.  According to the study, nobody knows how many offices the Big Four have, exactly where they’re located, how many people work for them, or how their ownership is structured.  Why so secretive? The study says that the Big Four have their reasons:

We suggest that the structure adopted by the Big Four firms of accountants, which at one level suggests the existence of a globally integrated firm and at another suggests that they are actually made up of numerous separate legal entities that are not under common ownership but which are only bound by contractual arrangements to operate common standards under a common name, has been adopted because it:

– Reduces their regulatory cost and risk;
– Ring-fences their legal risk;
– Protects their clients from regulatory enquiries;
– Delivers opacity on the actual scale of their operations and the rewards flowing from them.

The study was released by a left-leaning group of members who serve on the European Parliament’s Panama Papers inquiry committee.  Anyway, who knew that your mild-mannered independent registered public accounting firm was playing such an integral role in bringing about the “New World Order”?

John Jenkins

July 20, 2017

IPOs: Commissioner Piwowar Favors Allowing Mandatory Arbitration

Speaking at the Heritage Foundation earlier this week, SEC Commissioner Mike Piwowar said that the SEC might be receptive to requests by IPO companies to include mandatory arbitration clauses in their charters. Here’s an excerpt from this Reuters article:

A key U.S. securities regulator on Monday voiced support for possibly allowing companies to tuck language into their initial public offering paperwork that would force shareholders to resolve claims through arbitration rather than in court. “For shareholder lawsuits, companies can come to us to ask for relief to put in mandatory arbitration into their charters,” said Michael Piwowar, a Republican member of the U.S. Securities and Exchange Commission. “I would encourage companies to come and talk to us about that.”

Mandatory arbitration bylaws got a lot of attention a few years back when Carlyle Group tried to install one in its IPO – although it ultimately backed off. The SEC Staff has historically said that these clauses were contrary to public policy & potentially inconsistent with the anti-waiver provisions of Section 14 of the Securities Act & Section 29(a) of the Exchange Act – so a shift in policy here would be big news.

IPOs: GOP Wants a Smoother Ride

Efforts to encourage IPOs are a big part of the SEC’s agenda. According to this MarketWatch report, Congressional Republicans are on-board as well – they believe that current rules discourage IPOs & deprive retail investors of a chance at the “lottery tickets” those deals represent.

SEC Commissioner Nominee: Hester Peirce to Get Another At-Bat

This WSJ article reports that President Trump plans to nominate former Senate aide Hester Peirce to fill the vacant Republican slot on the SEC (here’s a White House press release – this press release indicates the nomination was sent to the Senate yesterday).

If that name sounds familiar, it’s because President Obama nominated her to serve as a Commissioner in 2015 – but the full Senate never acted on her nomination, as we blogged about numerous times (here’s one of those blogs).

John Jenkins

July 19, 2017

Tomorrow’s Pre-Conference Webcast: “Pay Ratio Workshop – What You Need to Do Now”

For those registered for the upcoming “Pay Ratio & Proxy Disclosure Conference,” tune in tomorrow – noon eastern (audio archive goes up when the program ends; transcript available in a week or so) – for the first in a series of three monthly webcasts that serve as a pre-conference: “Pay Ratio Workshop: What You Need to Do Now.” The second webcast is on August 15th; the third webcast is September 27th.

The speakers for tomorrow’s webcast are:

Mark Borges, Principal, Compensia
Mike Kesner, Principal-in-Charge, Human Capital Advisory Services, Deloitte Consulting LLP
Dave Lynn, Editor, CompensationStandards.com and Partner, Jenner & Block LLP
Maia Gez, Of Counsel, Gibson Dunn & Crutcher LLP

Register Now – Discount Ends July 28th: This is the only comprehensive conference devoted to pay ratio. Here’s the registration information for the “Pay Ratio & Proxy Disclosure Conference” to be held October 17-18th in Washington DC and via Live Nationwide Video Webcast. Here are the agendas – 20 panels over two days. Register by July 28th to take advantage of the 10% discount.

Our “Annotated Model Pay Ratio Disclosures”: Now Posted

Our set of “Annotated Model Pay Ratio Disclosures” in both PDF & Word format is now posted & available to Conference attendees. Don’t forget to participate in our anonymous “Quick Survey on Pay Ratio Readiness.”

Oodles of Pay Ratio Panels: Comprehensive Coverage

It doesn’t matter whether you can make it to DC – because the October 17-18th Conference is available to watch online by video webcast, live on those specific days or by video archive at your convenience. We’ve clarified that in the box at the top of our Conference FAQs.

Among the panels for the October 17-18th Conference are:

1. Corp Fin Speaks (speaker from the Staff to be announced)
2. The SEC All-Stars: A Frank Pay Ratio Conversation
3. Parsing Pay Ratio Disclosures: US-Only Workforces
4. Parsing Pay Ratio Disclosures: Global Workforces
5. Pay Ratio: Sampling & Other Data Issues
6. Pay Ratio: The In-House Perspective
7. Pay Ratio: How to Handle PR & Employee Fallout
8. The SEC All-Stars: The Bleeding Edge
9. The Investors Speak
10. Navigating ISS & Glass Lewis
11. Keynote: A Conversation with Nell Minow
12. Proxy Access: Tackling the Challenges
13. Clawbacks: What to Do Now
14. Dealing with the Complexities of Perks
15. The Big Kahuna: Your Burning Questions Answered
16. Hot Topics: 50 Practical Nuggets in 60 Minutes

Register Now – Discount Ends July 28th: This is the only comprehensive conference devoted to pay ratio. Here’s the registration information for the “Pay Ratio & Proxy Disclosure Conference” to be held October 17-18th in Washington DC and via Live Nationwide Video Webcast. Here are the agendas – 20 panels over two days. Register by July 28th to take advantage of the 10% discount.

Broc Romanek

July 18, 2017

Links to Exhibits: Does Anybody Here Speak “Edgar”?

Yesterday, the SEC posted its updated “Edgar Filer Manual” – Broc blogged about it coming last week.  The updated version of the Manual includes instructions on how to comply with the new requirement to link to exhibits (see Section 5.4.2. on pages 5-50 – 5-52) – which will go into effect on September 1st for the larger companies (non-accelerated filers & smaller reporting companies that submit filings in ASCII don’t need to comply until a year later).

Let’s just say the instructions are a wee bit on the technical side. For instance, here’s the summary on “using HTML styles to indicate the location of exhibit links and the summary section”:

To indicate where in the document an exhibit hyperlink is located, in your HTML document enter the text “<a style=”-sec-extract:exhibit” ” before the web address and the text “</a>” after the exhibit name. See Section 5.4.2.2 for instructions on creating hyperlinks to exhibits in HTML documents.

To indicate where in the document the Summary is located, in your HTML document enter the text “<p style=”-sec-extract:summary”>” before the Summary and enter the text “</p>” after the Summary.

This is followed by a discussion of the “detailed steps” required to accomplish whatever the task I just described is – but trust me, you do NOT want to read the detailed steps.  Send this one right to the HTML wizards.

At some point, Corp Fin will likely issue a set of FAQs – or some other form of guidance – as we hear there are a lot of open questions that folks are wondering about. For example, how does one link to an exhibit in a 30-year old registration statement that was filed as one gigantic ASCII file? The only available “link” would be to the filing as a whole.

New Accounting Standards: CAQ’s Tips on SAB 74 Disclosure

Several new accounting standards are being rolled out over the next few years – so this recent “Center for Audit Quality” alert reviewing disclosure obligations about new accounting standards under SAB 74 seems pretty timely.

The CAQ alert points out that even in situations where a new accounting standard is not expected to significantly impact the face of the financial statements, new footnote disclosures may still represent a significant change that companies need to address.

Along the same lines, it’s worth noting that this MarketWatch article cites recent comments from an SEC accounting fellow to the effect that even though a new accounting standard may not have a material effect on a company’s financial statements, that doesn’t mean that disclosures about that new standard won’t be material.

Transcript: “Flash Numbers in Offerings”

We have posted the transcript for our popular webcast: “Flash Numbers in Offerings.”

John Jenkins