Last year, Audit Analytics reported that 2020 saw the lowest percentage of financial restatement disclosures (Big R & Little r) in the 20 years that Audit Analytics has been monitoring those disclosures. According to this year’s report from Audit Analytics, things were very different in 2021. Restatements soared, and you can blame that entirely on SPACs. Here are some of the highlights:
– After declining for many years, the total number of restatements and the number of unique companies that disclosed a restatement last year rose to their highest levels since 2006. Total restatements increased by 289%, and unique companies that disclosed a restatement rose by 194%.
– The number of restatements filed increased significantly to 1,470, due to SPAC restatements. 77% of all restatements last year were SPAC-related, and excluding those restatements, there was a 10% year-over-year decrease.
– 62% of restatements were “Big R” reissuance restatements. Again, SPACs distort the picture here – backing out SPAC restatements, 24% were Big R, but that’s still up 3% over the prior year.
– The top reason for restating last year in both SPAC & non-SPAC settings was debt and equity accounting issues. Revenue recognition held the top spot for each of the three prior years
As always, the report contains a lot of other data on restatements, including the impact of restatements on net income, the average length of time required to restate financials and the average days restated.
On Friday, the SEC announced that Investor Advocate Rick Fleming will be leaving the agency effective July 1, 2022. He was appointed to serve as the first director of the Office of the Investor Advocate in 2014 and has served in that capacity for the last eight years. This excerpt from the SEC’s announcement summarizes his accomplishments:
As the Investor Advocate, Mr. Fleming has built an office responsible for assisting retail investors in their interactions with the Commission and self-regulatory organizations (SROs), analyzing the impact on investors of proposed rules and regulations, identifying problems that investors have with financial service providers and investment products, and proposing legislative or regulatory changes to promote the interests of investors. In addition, he has introduced a new program to utilize surveys and other research methods to help the Commission understand the needs of investors.
One thing that Rick Fleming has not been during his tenure is a shrinking violet. Among other things, he’s been an outspoken critic of dual class structures & has recently called upon the stock exchanges to tighten SPAC listing standards. OIA Chief Counsel Marc Sharma help administer the Office’s functions until a new Investor Advocate is appointed.
There seem to be plenty of interesting and engaging jobs at the SEC, but there are two that I know for sure I’d never want. The first is the poor soul who picks up the phone at the number the SEC tells you to call when EDGAR is on the fritz, and the second is the person in charge of the SEC’s social media accounts. In fairness, the problem doesn’t appear to be all of the SEC’s social media accounts – just those on Twitter, the world’s most popular “rage-as-a-service” platform.
Any tweet, no matter how innocuous, from the SEC or any of its commissioners results in an avalanche of frothing-at-the-mouth replies from the most unhinged corners of the Internet. For instance, check out the replies to this tweet announcing the very controversial news that last week’s open meeting was about to start.
See what I mean? The typical person who shows up in the mentions seems to a crypto-meme stock enthusiast and devoted Alex Jones listener who’s convinced that Gary Gensler, Jay Clayton and Bill Hinman are corrupt acolytes of the New World Order and that they were also probably involved in the JFK assassination.
How’d you like to have to deal with this stuff every time you tweeted something? Can you imagine when this poor slob gets home from work – “How was your day, dear?” “Well, not too bad – @cryptocthulhu666 and @diamondhandsboredape only posted 12 memes of Gary Gensler in a clown suit today.” Maybe this kind of job is your cup of tea, but I’ll take a hard pass!
Oh, and it doesn’t appear to pay to court these folks. Commissioner Peirce has been viewed as a champion by many in the crypto-crowd, and she accepted the “Crypto Mom” moniker they bestowed upon her with grace & good humor. But that still didn’t stop the Internet people from creating a bunch of scam Instagram accounts under her name.
Directors are fiduciaries and have the responsibility for overseeing the business and affairs of the company. In keeping with those responsibilities, directors generally have a right to see any corporate information they want, including information that’s subject to the attorney-client privilege. But this ArentFox Schiff memo says that right is subject to certain exceptions. This excerpt explains:
In many jurisdictions—including Delaware, Illinois, Virginia, D.C., and Massachusetts—a director cannot obtain privileged company records where the director seeks them for an improper purpose. Jurisdictions such as Delaware and Massachusetts also restrict a director’s access to privileged communications where the director is acting adversely to the company’s interests. Similarly, under California law, a director generally cannot obtain the company’s privileged communications relating to a lawsuit the director filed against the company.
Courts conduct a fact-intensive inquiry to determine whether a director has an improper purpose for Courts conduct a fact-intensive inquiry to determine whether a director has an improper purpose for inspection or is acting adversely to the company. That inquiry involves considering whether the company has specific evidence—beyond anticipating the director may sue the company—of an improper purpose or adversity. For example, evidence that a director seeks to access privileged company records to harass the company or to force a buyout of the director’s shares at a premium may be sufficient to prevent the director from accessing those records.
Further, it is not sufficient for the company to show that the director is acting adversely to other directors. Instead, the company must show that the director is acting adversely to the company.
The memo goes on to offer several proactive steps that companies might take to shield corporate records from directors in order to avoid the fact-intensive inquiry described above. These include appointing a special committee to deal with a dispute involving a director as soon as it arises and having that committee retain its own counsel.
On a related topic, be sure to check out Keith Bishop’s blog on the issue of whether directors of a corporation are “joint clients” of a lawyer for the company.
If you’ve ever been involved in an internal investigation involving a potentially substantial issue, you know that it’s virtually impossible to avoid sharing information about that investigation with the company’s independent auditors. But if you do that, do you risk losing privilege in the event of subsequent litigation? This Perkins Coie blog says that at least some courts have answered that question in the affirmative:
Although not in the majority, courts have concluded that independent auditors in fact have an inherently adversarial relationship with the companies they audit. Compare Medinol, Ltd. v. Boston Scientific Corp., 214 F.R.D. 113, 116 (S.D.N.Y. 2002). As a consequence, companies have a solid basis for fearing a downstream assertion that they waived work product protection over the subject of the information disclosed to their outside auditors. These cases, and the more generally unsettled state of the law on this key issue, create a non-trivial risk that turning over their search terms today could create privilege waiver arguments tomorrow.
The blog says that the good news is that it’s not a foregone conclusion that a court will find that privileged has been waived under these circumstances. This is an issue that has been litigated, and only a minority of courts have taken the position that sharing such information with auditors results in a waiver of work product protection.
Bass Berry’s Jay Knight recently blogged about a comment letter exchange in which the Staff objected to a company’s presentation of a non-GAAP measure adjusted for expenses incurred in transitioning to public company status. Here’s an excerpt:
We found particularly interesting this recent comment letter exchange (see here and here) where the SEC Staff took issue when a company, which had recently gone public, included an adjustment in its Adjusted EBITDA non-GAAP financial measure for “public company expenses” related to “additional headcount to build infrastructure and support the operations of a public company (i.e., public company directors & officers liability insurance, investor relation and public listing fees, additional legal and accounting fees, and additional independent board members).”
In the Staff’s view, these expenses were normal, recurring expenses associated with public company status and efforts to back them out of Adjusted EBITDA involved inappropriate “tailored accounting.” The company agreed to remove the adjustment in future filings.
On Tuesday, Coinbase announced disappointing first quarter earnings. In the midst of a crypto crash, that would’ve been enough by itself to result in a big hit to the company’s stock price, but to make matters worse, the addition of new language to an existing risk factor prompted a firestorm of negative media reports about the company’s prospects. What caught the eye of many analysts was an updated version of a risk factor relating to issues associated with safeguarding client assets that appeared on p. 40 of its latest Form 10-K. The company’s first quarter Form 10-Q tacked on the following sentences to the first paragraph of that risk factor, which appears on p. 83 of the filing:
Moreover, because custodially held crypto assets may be considered to be the property of a bankruptcy estate, in the event of a bankruptcy, the crypto assets we hold in custody on behalf of our customers could be subject to bankruptcy proceedings and such customers could be treated as our general unsecured creditors. This may result in customers finding our custodial services more risky and less attractive and any failure to increase our customer base, discontinuation or reduction in use of our platform and products by existing customers as a result could adversely impact our business, operating results, and financial condition.
That language was added in response to the SEC Accounting Staff’s issuance of SAB 121, which addressed accounting for safeguarded digital assets and noted that “disclosures regarding the significant risks and uncertainties associated with the entity holding crypto-assets for its platform users may also be required outside the financial statements under existing Commission rules, such as in the description of business, risk factors, or management’s discussion and analysis of financial condition and results of operation.”
My guess is that Coinbase probably viewed this disclosure as not being particularly material. It likely concluded that it was simply making explicit something that was implicit in its existing risk factor disclosure or at least widely known among crypto investors. But the market freaked out after media reports suggested that the new language implied that the company was facing the risk of bankruptcy. To make matters worse, some of those reports accused the company of hiding this allegedly apocalyptic disclosure. Ultimately, Coinbase’s CEO felt compelled to respond with a Twitter thread explaining the fact that the disclosure was prompted by the adoption of SAB 121.
I think there are a couple of takeaways from the Coinbase situation. First, sometimes a perfect storm of negative events surrounding a company and its industry can transform what a company thinks is a non-controversial risk factor update into a five-alarm fire – and the possibility of that kind of perfect storm needs to be kept in mind when drafting disclosure and considering its possible impact.
Second, as we point out in the discussion on p. 9-10 of our Risk Factors Disclosure Handbook, companies take different approaches to updating risk factors. Some opt to simply set forth the risk factors that are being updated in the filing, while others, like Coinbase, include the entire set of risk factors that appeared in the 10-K. We recommend that companies that repeat the entire section highlight the updated language in some fashion. Highlighting the new language might not stop an unexpected firestorm from happening, but it might help avoid accusations of attempting to bury the disclosure if one does break out.
As the war in Ukraine rages on, the U.S. and its allies continue to ratchet up pressure on the Putin regime by expanding the scope of economic sanctions imposed on Russia. This Ropes & Gray memo summarizes the latest round of sanctions, which extend to accounting, trust, corporate formation and management consulting services. Here’s an excerpt:
Executive Order 14071, issued on April 8, 2022, prohibits “the exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person,” of any category of services subsequently identified by the U.S. government as impermissible. On May 8, OFAC, in consultation with the State Department, has now determined that the provision of accounting, trust, and corporate formation, as well as management consulting activities, to parties in the Russian Federation should be prohibited, effective June 7 (the “Services Determination”). In connection with the Services Determination, OFAC issued the following explanatory guidance:
– “Accounting services” includes any “services related to the measurement, processing, and transfer of financial data about economic entities.”
– “Trust and corporate formation services” includes “services related to assisting persons in forming or structuring legal persons, such as trusts and corporations; acting or arranging for other persons to act as directors, secretaries, administrative trustees, trust fiduciaries, registered agents, or nominee shareholders of legal persons; providing a registered office, business address, correspondence address, or administrative address for legal persons; and providing administrative services for trusts.”
– “Management consulting services” includes “services related to strategic advice; organizational and systems planning, evaluation, and selection; marketing objectives and policies; mergers, acquisitions, and organizational structure; staff augmentation and human resources policies and practices; and brand management.”
We’re continuing to post resources in our “Ukraine Crisis” Practice Area on a daily basis. One recent addition that you may find helpful is this Jones Day memo, which provides a cross-jurisdiction summary of key Russia-related sanctions imposed by Australia, the EU, Japan, the UK & the US.
Speaking of sanctions, the DOJ is extremely interested in companies’ efforts to comply with them. Here’s an excerpt from this Davis Polk memo:
At a recent New York City Bar Association event, Deputy Attorney General Lisa Monaco emphasized the centrality of national security to the Department of Justice’s white collar enforcement efforts. In particular, Monaco pointed to the enforcement of sanctions evasion and export control violations as key to the Department’s work to combat corporate crime. “One way to think about this is as sanctions being the new FCPA,” she said.
Although the Foreign Corrupt Practices Act (FCPA) has long been a focus of the Department’s corporate enforcement efforts, criminal enforcement of sanctions laws (the Trading With the Enemy Act and the International Emergency Economic Powers Act) has not been as widely publicized as a Department priority for corporate enforcement. Monaco’s remarks have thrown such enforcement under the spotlight.
The memo says that the DOJ appears poised to aggressively enforce sanctions evasion and export control violations, and it is possible that it seek harsher penalties and resolutions for violations of the sanctions laws. Because of the potential overlap between corruption and sanctions enforcement, the memo also says that the DOJ’s initiative could lead to increased collaboration with other agencies, including the State Department, the Commerce Department, and the Treasury Department’s Office of Foreign Assets Control. Involvement of multiple agencies and departments may make investigations and their resolution much more complicated.
The SEC’s climate change disclosure proposal was on the agenda at last Friday’s meeting of the SEC’s Small Business Capital Formation Advisory Committee. As you might expect, the various small business representatives who spoke at the meeting had plenty to say about the proposal, and Cooley’s Cydney Posner recently provided a detailed summary of the meeting and the recommendations the committee will pass along to the SEC. This excerpt lists those recommendations, which Cydney points out are subject to further amplification:
– Affirm that the committee believes that climate disclosure is important, including disclosure that is consistent across companies and agencies;
– Ask the SEC to perform a more detailed cost/benefit analysis, especially with respect to smaller companies;
– Provide more scaling and phase-ins for EGCs and smaller reporting companies (such as the phase-in for EGCs in the JOBS Act);
– Expand safe harbors from liability;
– Create an incentive structure rather than a penalty structure (such as through reduced fees);
– Address considerations that could deter companies from conducting IPOs;
– Address the potential impact on very small companies;
– Consider the impact on private companies of public companies’ potential reluctance to include them in the value chain;
– Consider industry-specific requirements, similar to the SASB framework;
– Eliminate the costly and slow attestation requirement;
– Treat the disclosure as “furnished,” not “filed”;
– Delay the disclosure due date; and
– Delay the general phase-in dates to allow more time to organize and prepare.
This list of recommendations isn’t really surprising, but I think it confirms the widely held belief that, in their current form, the proposed climate change disclosure rules will present enormous compliance challenges to smaller companies. It also suggests that the cost of those compliance efforts may have been underestimated by the SEC when it put forward the proposal.
