Yesterday, Corp Fin’s Accounting Staff issued SAB No. 121, which addresses the accounting treatment of safeguarded digital assets held by crypto platforms on behalf of customers who trade those securities digital assets. SAB 121 reflects the Staff’s view that “obligations associated with these arrangements involve unique risks and uncertainties not present in arrangements to safeguard assets that are not crypto-assets, including technological, legal, and regulatory risks and uncertainties.” Accordingly, it issued SAB 121 to provide guidance on the proper accounting treatment of those assets. This excerpt lays out the Staff’s position:
Facts: Entity A’s business includes operating a platform that allows its users to transact in crypto-assets. Entity A also provides a service where it will safeguard the platform users’ crypto-assets, including maintaining the cryptographic key information necessary to access the crypto-assets. Entity A also maintains internal recordkeeping of the amount of crypto-assets held for the benefit of each platform user. Entity A secures these crypto-assets and protects them from loss or theft, and any failure to do so exposes Entity A to significant risks, including a risk of financial loss. The platform users have the right to request that Entity A transact in the crypto-asset on the user’s behalf (e.g., to sell the crypto-asset and provide the user with the fiat currency (cash) proceeds associated with the sale) or to transfer the crypto-asset to a digital wallet for which Entity A does not maintain the cryptographic key information. However, execution and settlement of transactions involving the platform users’ crypto-assets may depend on actions taken by Entity A.
Question 1: How should Entity A account for its obligations to safeguard crypto-assets held for platform users?
Interpretive Response: The ability of Entity A’s platform users to obtain future benefits from crypto-assets in digital wallets where Entity A holds the cryptographic key information is dependent on the actions of Entity A to safeguard the assets. Those actions include securing the crypto-assets and the associated cryptographic key information and protecting them from loss, theft, or other misuse. The technological mechanisms supporting how crypto-assets are issued, held, or transferred, as well as legal uncertainties regarding holding crypto-assets for others, create significant increased risks to Entity A, including an increased risk of financial loss. Accordingly, as long as Entity A is responsible for safeguarding the crypto-assets held for its platform users, including maintaining the cryptographic key information necessary to access the crypto-assets, the staff believes that Entity A should present a liability on its balance sheet to reflect its obligation to safeguard the crypto-assets held for its platform users.
As Entity A’s loss exposure is based on the significant risks associated with safeguarding the crypto-assets held for its platform users, the staff believes it would be appropriate to measure this safeguarding liability at initial recognition and each reporting date at the fair value of the crypto-assets that Entity A is responsible for holding for its platform users. The staff also believes it would be appropriate for Entity A to recognize an asset at the same time that it recognizes the safeguarding liability, measured at initial recognition and each reporting date at the fair value of the crypto-assets held for its platform users.
SAB 121 also provides guidance on the disclosures with respect to these arrangements that would be required in the footnotes to the platform’s financial statements, and also points out 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.”
In what’s become a tradition when it comes to SEC actions touching on crypto, the redoubtable crypto-evangelist Commissioner Hester Peirce (aka Crypto Mom) issued a statement expressing her displeasure with the decision to issue this guidance.
A recent article by Bloomberg Law’s Preston Brewer says that recent federal legislation banning mandatory arbitration claims in employment contracts may prompt more public companies to disclose information about these claims. This excerpt explains why that might be the case:
The new law puts a stop to the forced diversion of sexual harassment claims away from the courts. Companies will thus have to grapple with the uncertainty of potentially large judgments, including punitive damages. These potential scenarios will likely convince more and more public companies to describe the sexual harassment risk to their businesses in their SEC filings.
From a securities regulation perspective, the core determinant as to what a registered company should publicly disclose is whether the information would be material to an investor trying to make an informed investment decision. The greater the potential risk to the company, the more likely that such information needs to be disclosed in its SEC filings. The tension between this legal obligation and a company’s desire to present a positive public image is sure to increase.
Although the nature of this risk will vary from company to company, the risk isn’t simply the monetary costs of defending and paying settlements or judgments. A company may face significant reputational risks that can impair its brand and the company’s market value. Management may be distracted while defending against claims, thereby harming the business, and the greater public exposure of these court-litigated allegations (as opposed to closed-door arbitration) increases the risk that companies will lose key personnel who may be difficult to replace.
The article discusses the need for public companies to tailor risk factors to address this risk and notes out that industries with a track record of sexual harassment claims, such as tech, entertainment, & finance, may be more affected by the legislation than those in other industries.
We’ve blogged on several occasions about the phenomenon of “remote-first” public companies that claim to have no physical address. According to this Goodwin blog, however, the Staff has had its fill of these filings:
Numerous public companies have declared themselves a “remote-only” or “remote-first” company. Recently, we learned that the SEC Staff will not declare a registration statement effective unless the company provides a physical address on the cover page of its registration statement in response to the requirement to disclose the address of its principal executive offices. Based on our review of SEC comment letters, we think the Staff’s position is a result of various rules that require certain communications to be sent to a company’s principal executive offices, including Rules 14a-8 and 14d-3(a)(2)(i).
We understand that it is acceptable to the SEC Staff for a “remote-only” or “remote-first” company to provide a P.O. Box to meet the physical address requirement. We have also seen a company provide in response to an SEC Staff Comment that any stockholder communication required to be sent to its principal executive offices may be directed to its agent for service of process and such company had its related registration statement declared effective.
With apologies to all denizens of the metaverse, I have always thought this was a ridiculous position to take and I applaud the Staff’s decision. Frankly, the thing that’s surprised me most about the emergence of these allegedly homeless public companies is that the Corp Fin Staff has, at least until now, been willing to put up with this nonsense. If you enjoyed this curmudgeonly blog, stay tuned – I plan to address “you kids and your darn rock ‘n roll music” in an upcoming post. Also, get off my lawn.
Yesterday, the SEC announced rule proposals intended to enhance disclosure and investor protection in SPAC initial public offerings and in de-SPAC transactions. Here’s the 372-page proposing release & here’s the 3-page fact sheet. The SEC is pitching the proposal as a way to level the playing field between SPACs & traditional IPOs, which SEC Chair Gary Gensler emphasized in his statement on the proposal. This excerpt from the fact sheet summarizes the additional disclosure & investor protections for SPAC IPOs & de-SPACs that would be put in place under the proposed rules:
– Enhanced disclosures regarding, among other things, SPAC sponsors, conflicts of interest, and dilution;
– Additional disclosures on de-SPAC transactions, including with respect to the fairness of the transactions to the SPAC investors;
– A requirement that the private operating company would be a co-registrant when a SPAC files a registration statement on Form S-4 or Form F-4 for a de-SPAC transaction;
– A re-determination of smaller reporting company status within four days following the consummation of a de-SPAC transaction;
– An amended definition of “blank check company” to make the liability safe harbor in the Private Securities Litigation Reform Act of 1995 for forward-looking statements, such as projections, unavailable in filings by SPACs and certain other blank check companies; and
– A rule that deems underwriters in a SPAC initial public offering to be underwriters in a subsequent de-SPAC transaction when certain conditions are met.
The proposal would also add a new Rule 145a, which provides that a business combination involving a reporting shell company and another entity that is not a shell company constitutes a “sale” of securities to the reporting shell company’s shareholders. The proposal also addresses the status of SPACs under the Investment Company Act and would establish a non-exclusive “safe harbor” for SPACs that, among other things, enter into a de-SPAC agreement within 18 months of their IPO & complete the deal within 24 months following the IPO.
The proposed rules about the fairness of the transaction would require disclosure similar to that required in going private deals and, like the going private rules, are intended to incentivize sponsors to shape the transaction process in a more investor-favorable way. The biggest news in the rule proposal is probably the loss of the PSLRA safe harbor for projections in de-SPAC transactions, which is something that the Staff has telegraphed was coming for a long time. However, the extension of Section 11 liability to the de-SPAC target & the potential that the IPO underwriters might also face Section 11 liability for the de-SPAC are also significant. As usual, Tulane’s Ann Lipton has a Twitter thread that’s full of insights on some of the issues raised by the proposal
SPACs’ status under the Investment Company Act has been another hot topic in recent months, and the safe harbor approach came as a bit of a surprise to me in light of the publicly expressed views of the current head of the SEC’s Division of Investment Management. Frankly, if the SEC wanted to drive a stake through the heart of SPACs, this could have been the place to do it.
Commissioner Peirce once again dissented from the SEC’s decision, essentially arguing that the SEC came to bury SPACs, not to regulate them. She states that the rules would impose “a set of substantive burdens that seems designed to damn, diminish, and discourage SPACs because we do not like them, rather than elucidate them so that investors can decide whether they like them.”
As per the new normal for comment periods, this one expires 30 days after publication in the Federal Register or May 31, 2022, whichever is later.
While the SEC’s latest rule proposal has the greatest relevance to SPACs & shell companies, there’s one aspect of it that applies to all public companies – proposed tweaks to the agency’s guidance on the inclusion of projections in SEC filings (see p. 130 of the release). That guidance is laid out in Item 10(b) of Reg S-K and the proposal would inject some familiar concepts from Reg G into that guidance. Specifically, the SEC proposes to amend Item 10(b) to state that:
– Any projected measures that are not based on historical financial results or operational history should be clearly distinguished from projected measures that are based on historical financial results or operational history;
– It generally would be misleading to present projections that are based on historical financial results or operational history without presenting such historical measure or operational history with equal or greater prominence; and
– The presentation of projections that include a non-GAAP financial measure should include a clear definition or explanation of the measure, a description of the GAAP financial measure to which it is most closely related, and an explanation why the non-GAAP financial measure was used instead of a GAAP measure.
The SEC would also amend the guidance to clarify that it applies to the projections of any entity included in the filing, such as the target in a business combination transaction.
If a 506-page proposing release on climate disclosure rules wasn’t enough to convince you that climate change was top of mind at the SEC, this CompanyIQ report says that 1/3rd of S&P 500 comment letters released during the 90 days ended March 4, 2022 asked companies to provide additional information on climate disclosure.
If you’re thinking about initiating a stock repurchase during the current period of global turmoil and market volatility, be sure to check out this Skadden memo. It provides a comprehensive overview of the strategic & legal considerations, alternative transaction structures, and the pros and cons of repurchasing stock. This excerpt addresses the implications of a decision to engage in a buyback on earnings guidance:
How should a company consider earnings guidance preceding the company’s implementation of a share repurchase program?
As in the ordinary course of business, a company contemplating a share repurchase should examine its past earnings guidance to ensure that subsequent developments have not rendered such guidance materially misleading. Companies should pay close attention to earnings guidance given in the midst of a turbulent market and uncertain economic conditions because such guidance is more likely to be revealed, in hindsight, to have been based on faulty assumptions. Overly pessimistic guidance runs the risk of inducing investors to participate in a share repurchase where they otherwise would have abstained, particularly where more accurate projections would have pointed to stronger future earnings.
To minimize the risk of potential liability under Rule 10b-5 in the current market environment, a company contemplating a share repurchase should be wary of allowing too much time to elapse between releasing its earnings guidance and implementing a share repurchase program. Initiating a contemplated share repurchase close to the time earnings guidance is released reduces the likelihood of subsequent developments retroactively rendering such guidance materially misleading. If developments arise that cause a company’s prior earnings guidance to be misleading, the company should consult counsel and update such guidance before proceeding with its share repurchase.
The SEC has issued proposed rules intended to promote increased transparency when it comes to stock buybacks, but according to this NY Times DealBook report, the Biden Administration intends to go much further, and will propose legislation to discourage buybacks by hitting public company executives right in their wallets:
The White House plans to propose new restrictions on buybacks, DealBook has learned. This could have further-reaching implications than its plan for a minimum tax for billionaires that’s also expected to be announced today. The buyback proposal goes beyond the 1 percent tax on share repurchases that was part of the administration’s ill-fated $2.2 trillion climate and social spending bill last year, which was meant to raise around $124 billion in tax revenue.
The proposal will call for a three-year freeze on corporate executives selling their shares after a buyback. To support this move, the administration is likely to cite academic research that found company executives tend to sell far more stock in days following a buyback announcement than at any other time. Other research shows that buybacks have accounted for an increasingly large share of corporate profits (often more than 50 percent of net income) over the years. Apple has spent more than $420 billion buying back its shares over the past decade.
Call me a cynic, but if the objective is to reduce the level of buybacks, I think this approach is likely to be very effective. But people are already raising objections about the potential unintended consequences, including a jump in executive comp. Here’s an excerpt from this Forbes article, which says the proposed legislation is a bad idea:
Third, if the targeting of stock buybacks leaves top executives worse off financially, then you can expect CEOs to demand a hike in their cash pay to make up the difference. That may happen because some business leaders will feel (rightly) unfairly targeted by the government. Or it may be that job offers arrive from other countries with more liberal regulations. Either way, the war for top talent will result in fatter executive paychecks.
Like I said, you can call me a cynic, but I think this is also very likely to happen if the proposal becomes law. Of course, I also think that the sun rising tomorrow will very likely result in increased CEO pay.
When the SEC issued its cybersecurity disclosure rule proposals earlier this month, it said that the comment period would expire 60 days following publication of the proposing release on the SEC’s website or 30 days following publication of the proposing release in the Federal Register, whichever period is longer. I guess I’m not surprised that an MIT professor turned SEC Chair would make us do math – but seriously, why did it have to be word problems?
Anyway, the proposal was published in the Federal Register on March 23rd, which means by my calculations – and the statement in the online version of the Federal Register – that the comment period will end on May 9th.
