Recently, I noticed that the SEC posts lists about how each SEC Commissioner voted during closed Commission meetings. The matters discussed – and voted upon – during these closed meetings typically consist of enforcement proceedings (see my “SEC Enforcement Handbook” for analysis about the stages of an investigation that require Commissioner action).
This was the first time that I noticed this type of list posted on the SEC’s website – but apparently they aren’t new since I found this list of final Commissioner votes since ’06 (it’s possible that the compilation is newer than ’06). The lists are fairly crude and hard to navigate – but that’s because they are uploads of paper documents that the SEC’s Office of Secretary maintains (see how they’re manually marked).
Some of the hardcores out there may know that a tally of how each Commissioner voted has always been available to those that sought them – at least since 1967. They have been available in the SEC’s Public Reference Room since ’67, the year that FOIA was enacted by Congress. Here’s the language from the CFR that makes them public:
(2) Records available for public inspection and copying; documents published and indexed. Except as provided in paragraph (b) of this section, the following materials are available for public inspection and copying from 10 a.m. to 3 p.m., E.T., at the public reference room located at 100 F Street, NE., Washington, DC, and, except for indices, they are published weekly in a document entitled “SEC Docket” (see paragraph (e)(8)(ii) of this section):
(i) Final opinions of the Commission, including concurring and dissenting opinions, as well as orders made by the Commission in the adjudication of cases;
(ii) Statements of policy and interpretations which have been adopted by the Commission and are not published in the FEDERAL REGISTER;
(iii) Administrative staff manuals and instructions to staff that affect a member of the public;
(iv) A record of the final votes of each member of the Commission in every Commission proceeding concluded after July 1, 1967;
I’ve never been an ardent reader of the SEC Docket, so I’m not sure for how long it listed a tally of SEC Commissioner votes. I imagine it might have until the SEC started posting them online as reviewing online versions of the Docket from the last few years reveals that tallies haven’t been included recently.
I will soon be blogging about the Public Reference Room – and how it has shrunk over the years. Before EDGAR, it’s importance can’t be overstated. Interestingly, there are vestiges of the Public Reference Room littered throughout various documents of the SEC even today. For example, the Division of Trading & Markets hasn’t changed the boilerplate in SRO rule filing notices that says the actual application is available for review in the Public Reference Room. I’m pretty sure that isn’t true these days…
Do you think the “Public Reference Room” and the “Conventional Reading Room” are the same? The latter is mentioned on this FOIA page. I’ve never heard of a “conventional” reading room. How would it differ from an “unconventional” reading room? Perhaps dimly lit…
The SEC’s 4th Annual Whistleblower Report: 4000 Tips
A few days ago, the SEC’s Office of the Whistleblower published its 4th annual report for its activities of for the past year (see this memo). The highlights include:
– 4000 whistleblower during the 2015 fiscal year, an increase of 30% over 2012
– Paid more than $54 million to 22 whistleblowers since 2011
– Paid $37 million in 2015 fiscal year alone
– Nearly 50% of award recipients were current/former employees (of which 80% relayed their concerns internally before reporting to the SEC)
– 20% of award winners submitted their information anonymously to the SEC through counsel
– 20% of the awards were reduced because of an unreasonable reporting delay
SEC Chair White gave this testimony a few days ago on the SEC’s 2017 budget request (the Corp Fin stuff is summarized in this blog)…
Swingers: Training By Animation for Section 16(b) Liability
Use this 3-minute animation by Brooks Pierce’s David Smyth to train your staff about Section 16(b) short-swing liability:
A few days ago, Corp Fin Director Keith Higgins delivered this speech entitled “Executive Compensation: Looking Beyond the Dodd-Frank Horizon.” It’s definitely worth reading – and an easy read. It looks ahead to the SEC’s Disclosure Effectiveness project and it covers the executive pay disclosure waterfront (see Mark Borges’ blog on it), including:
DOJ Updates US Attorneys’ Manual for Yates Guidance
A few days ago, the DOJ revised the chapter on the “Principles of Federal Prosecution of Business Organizations” in the United States Attorneys’ Manual – commonly known as the “Filip factors” – to incorporate previously announced “Yates” guidance addressing the accountability of individual employees in civil and criminal investigations of corporate wrongdoing. The new policies require that to receive any cooperation credit, a company “must identify all individuals involved in or responsible for the misconduct at issue, regardless of their position, status or seniority, and provide to the Department all facts relating to that misconduct.” The new policies also clarify issues relating to the attorney-client privilege, timely self-reporting, foreign data privacy restrictions, and the prosecution of individuals.
SEC Enforcement: Self-Reporting Required for Deferred Prosecution or Non-Prosecution Agreement
At a recent conference focused on FCPA matters, Andrew Ceresney, Director, SEC Division of Enforcement, focused on the benefits of self-reporting and cooperating with the SEC on FCPA matters. Mr. Ceresney noted that the Enforcement Division has determined that going forward, a company must self-report misconduct in order to be eligible for the Division to recommend a deferred prosecution agreement or non-prosecution agreement to the Commission in an FCPA case. He also stated he was hopeful that this condition on the decision to recommend a DPA or NPA will further incentivize firms to promptly report FCPA misconduct to the SEC and further emphasize the benefits that come with self-reporting and cooperation.
While it is now known where the SEC stands, in reality the Enforcement Division’s position just implements historical practice. In each FCPA case where the SEC has previously entered into a DPA or NPA, the company involved self-reported the violations, and then provided significant cooperation throughout the investigation.
FERF recently released this Audit Fee Report that reveals audit fee information for 7,000 SEC filers over the past four years, in addition to information gleaned from over 220 survey responses including 76 public companies, 92 private companies and 57 nonprofit organizations.
Key public company survey findings include:
Median audit fee of $2.2 million for 2014 audits, representing a median increase of 3.1% over their prior year’s audit fees
Reasons for the increase reportedly were primarily due to acquisitions and review of manual controls resulting from PCAOB inspections. Other bases for increases included inflation, the new COSO framework, and changes in organization structure.
Number of audit hours required for audit: median of 6,720 (34 responses)
Average and median audit fees for companies that have centralized finance operations are significantly less than those that have decentralized finance operations
About 86.8% of companies use a Big 4 auditor—with PwC auditing 22 of the total 76
Majority of companies indicated that the volume of annual audit work by external auditors in 2014 increased compared to 2013 to obtain both an auditor’s report on the financial statements (69.3%) and an auditor’s report on ICFR (63.2%).
67.6% of companies have adopted the 2013 COSO Framework. Others indicated that they will adopt the new Framework by 2015 year-end at the latest.
Over half of respondents indicated an increase in internal cost of compliance with SOX 404 within the past three years. However, about half indicated that they have better internal controls and that the additional expense was worthwhile.
45.3% and 66.7% of respondents, respectively, indicated that their auditors requested that they make changes to their controls or controls documentation as a result of PCAOB requirements or inspection feedback.
None of the respondents indicated that the PCAOB findings resulted in a restatement of their financial statements, nor did it result in a change in their auditor’s opinion.
The SASB just launched a new credential – the “Fundamentals of Sustainability Accounting” – aimed at financial reporting professionals, sustainability professionals, investors, consultants and securities lawyers involved in evaluating sustainability issues that impact a company’s financial performance. The credential entails two exams designed to test expertise in the materiality of sustainability information for corporate strategy and investment analysis.
The first exam – Level 1 – focuses on principles and emerging practices. The second exam – Level II (currently under development) – will focus on application and analysis:
LEVEL I
Learn how sustainability factors impact financial performance
Understand the legal context for material sustainability information
Gain a common language to describe the materiality of sustainability information to finance, legal, and accounting professionals
LEVEL II
Learn how industry-specific sustainability information can inform corporate strategies or investor recommendations
Gain the skills needed to evaluate corporate performance on sustainability factors
For more information, see this infographic snapshot about the credential, and these FAQs. See also this Corporate Counsel memo.
Podcast: New SEC Enforcement Database
In this podcast, NYU’s Dr. Stephen Choi discusses the recently launched Cornerstone Research/NYU Securities Enforcement Empirical Database, or SEED, including:
– Can you provide an example of what kinds of insights someone can gain from using SEED?
– What makes it so difficult to get the same data directly from the SEC?
– How did the idea of SEED come about?
– What can we learn from SEED that would be relevant to the debate about the SEC’s so-called “home field advantage” in its administrative proceedings?
– What are your plans for SEED going forward?
The recently released 2015 CPA-Zicklin Indexreveals some noteworthy findings about the political spending-related practices of the S&P 500 that would appear to counter the perceived need by some for SEC rulemaking in this area (legitimate concerns about the information meeting any requisite disclosure materiality threshold notwithstanding), including:
– Majority of companies have a political spending webpage: 54%, or 270 companies, had a dedicated webpage or similar space on their websites to address political spending and disclosure. – Most companies have policies addressing political spending: Over 87% (435 companies) had a detailed policy or some policy governing political spending on their websites. – Many companies have placed restrictions on their political spending: 25% (124 companies) placed some type of restriction on their political spending. This included restrictions on direct independent expenditures; contributions to candidates, parties and committees, 527 groups, ballot measures, or 501(c)(4) groups; and payments to trade associations for political purposes. – Over 40% of companies have some level of board oversight of their political contributions and expenditures:
Board oversight: 215 companies (43%) said their boards of directors regularly oversaw political spending.
Board committee reviews policy: 151 companies (30%) said that a board committee reviewed company policy on political spending.
Board committee reviews expenditures: 169 companies (34%) said that a board committee reviewed company political expenditures.
Board committee reviews trade association payments: 121 companies (24%) said that a board committee reviewed company payments to trade associations.
House Letter to SEC Urges Abstention from Political Spending Disclosure Rulemaking
In October, House Committee on Financial Services Chair Jeb Hensarling and Subcommittee on Capital Markets & Government Sponsored Enterprises Chair Scott Garrett sent this letter to SEC Chair White urging her to refrain from moving forward on any rulemaking that would mandate corporate political spending disclosure. The letter claims that such rulemaking efforts would be “a waste of the SEC’s finite resources” on a controversial, discretionary rule that would reflect a deviation from the materiality standard articulated by the US Supreme Court in TSC Industries v. Northway, which Chair White reportedly endorses.
The letter also notes that a recent letter to Chair White from several U.S. Senators urging the SEC to mandate disclosure in this area failed to mention the materiality standard – focusing instead on non-securities law concerns that reflect a philosophical disagreement with the Supreme Court’s 2010 Citizens United decision.
More on “The Mentor Blog”
We continue to post new items daily on our blog – “The Mentor Blog” – for TheCorporateCounsel.net 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:
– Board Risk Committee Considerations
– Industry Group Proposes XBRL Guidance
– New COSO Framework Gaining Steam
– Survey: Implications of Board Gender Diversity
– Board Succession Planning: Chess vs. Checkers
Without much fanfare, Glass Lewis posted its “Guidelines for the 2016 Proxy Season” on Friday, which includes a summary of the changes to its policies for the upcoming proxy season on pages 1-2. I say it was done “quietly” because I see no mention of it on the Glass Lewis blog or GL’s home page…
By the way, page 5 of the Glass Lewis policy updates includes a link to this 26-page “Shareholder Initiatives Guidelines” from earlier this year. There is no change in their look at proxy access on a case-by-case basis….
Dave & Marty’s “Pay Ratio Puppet Show”
Due to popular demand, we have posted the full 5-minute pay ratio puppet show that Dave & Marty performed at our recent “Proxy Disclosure Conference” on CorporateAffairs.tv. Check it out and then participate in the anonymous poll below:
Poll: Dave & Marty’s “Pay Ratio Puppet Show”
I find Dave & Marty’s pay ratio puppet show to be…
With the increasing focus on minimizing short-term thinking and behaviors that might overshadow due consideration for behaviors that drive long-term value has come a debate about whether and to what extent quarterly earnings reporting contributes to – or promotes – management’s focus on the short-term. Regardless of which side of that debate you fall, this recent Harvard Law post suggests some thought-worthy considerations relative to quarterly vs. semiannual reporting, along with a new “middle ground” position consisting of quarterly earnings releases/calls bolstered by two streamlined quarterly reports sandwiched between a detailed 10-K and semi-annual report.
Considerations: Quarterly vs. Semi-Annual Reporting
Will replacing quarterly with semi-annual reporting really induce corporate executives to make longer-term business decisions? For example, would that sort of change elicit notably more new five-year investment projects?
Will earnings smoothing (to the extent this is an issue generally) occur in six-month intervals rather than three-month intervals if quarterly reporting is eliminated in favor of semi-annual reporting?
If the time period betwen earnings reports is elongated, will the gap between actual earnings and management’s projections similarly widen, thus triggering undesirable consequences (e.g., more pressure to smooth earnings)?
Would the opportunity and temptation for insider trading increase with a longer time period between management’s reporting out?
If mandatory quarterly reporting were eliminated (like it is in the UK) and some companies elect to report quarterly while some elected only to report semi-annually, would this disparity negatively impact investors’ need/desire for comparability among investments?
SEC’s Investor Advisory Committee Members Oppose FASB’s Materiality Proposals
At last month’s Investor Advisory Committee meeting, several IAC members reportedly voiced their objections to FASB’s recent proposals aimed at clarifying the concept of “materiality” for financial disclosure purposes to comport with legal standards. Among other things, some members reportedly perceived the proposals as an effort to reduce disclosure and expressed concerns that the proposal would effectively place disclosure decision-making within the purview of lawyers, who (they claim) tend to err on the side of “less is more” disclosure and regard disclosure of non-material (based on the legal standard) information as potential liability risks.
See Cahill Gordon’s recent post – which does a nice job of explaining the rationale for FASB’s sound (in my view) approach, and this WSJ article.
More on “The Mentor Blog”
We continue to post new items daily on our blog – “The Mentor Blog” – for TheCorporateCounsel.net 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:
– Study: Director Age & Tenure on the Rise
– CEO Evaluations: Majority Assigned to Compensation Committees
– Breaking the Silence on Quiet Periods
– Survey: Directors Favor Evaluations for Succession
– Audit Committees: Establishing an Effective Whistleblower Program
The CAQ recently released this Alert addressing select auditing considerations for the 2015 audit cycle, many of which were also identified by the PCAOB in its recently issued Inspection Brief. Although logically oriented toward auditors, the Alert is equally instructive for the typically multiple company representatives involved in the audit process. Among other things, the Alert does a nice job of outlining in a plain English fashion the auditor’s scope of responsibility relative to the company’s cybersecurity and related party transactions pursuant to the fairly new PCAOB AS 18.
The Alert includes a discussion of these key topical areas:
Professional skepticism
Internal Control over Financial Reporting
Risk Assessment and Audit Planning
Supervision of Other Auditors and Multi-Location Audit Engagements
Testing Issuer-Prepared Data and Reports
Cybersecurity
Revenue recognition
Auditing Accounting Estimates, Including Fair Value Measurements
Related Parties and Significant Unusual Transactions
Relatedly, the CAQ submitted this comment letter to the PCAOB in response to the PCAOB’s Audit Quality Indicators Concept Release, making a strong case for audit committee-determination of (rather than regulatory-mandated) AQIs – which the CAQ indicates should be used and reported only voluntarily, in the context of learnings attained from its own AQI initiative.
See these additional comment letters on the Concept Release, and this PCAOB Dialogues AQIs podcast. Note that the initial comment period for the release closed at the end of September, but (purportedly consistent with its standard practice) the Board announced that it is reopening the comment period until November 30th to provide further opportunity for comment – including on any new information that becomes available as a result of a PCAOB Standing Advisory Group meeting being held today and tomorrow, which will focus largely on the PCAOB’s AQI initiative and emerging issues.
Deloitte recently issued this report on SEC comment letters, which contains (among other helpful information) extracts of SEC comment letters, links to relevant related resources, an analysis of staff comments to help companies understand trends and improve their financial statements and disclosures, and a best practice checklist for managing unresolved SEC comments. Disclosure topics covered include MD&A, non-GAAP measures, disclosure controls & procedures and ICFR, and executive compensation and other proxy disclosures.
We continue to post new items daily on our blog – “The Mentor Blog” – for TheCorporateCounsel.net 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:
– New & Departing D&O Checklists
– Auditor Independence: Deloitte Violation Serves as Good Director Compliance Reminder
– Hey There Fellow Securities Defense Lawyers: Omnicare is GOOD for Us!
– Pre-IPO Share Selling Under Scrutiny?
– Proxy Puts: Declining Use in Credit Agreements
PwC’s recently released 2015 Annual Corporate Directors Survey of 783 public company directors reveals heaps of noteworthy data, including a startling gender gap concerning the perceived importance of boardroom diversity. Findings include:
63% of female directors describe gender diversity as a very important attribute – compared to just 35% of male directors
46% of female directors describe racial diversity as very important, compared to only 27% of male directors
80% of female directors “very much” believe diversity leads to enhanced board effectiveness – compared to just 40% of male directors
74% of female directors “very much” agree that board diversity leads to enhanced company performance, compared to only 31% of male directors
Other noteworthy board diversity perspective gaps include:
67% of mega-cap company directors believe diversity is “very important” to board composition – compared to only 31% of micro-cap company directors
62% of directors with less than one year of board service “very much” agree that having diversity on the board is important, compared to only 39% of directors with tenure of more than ten years.
See also this recent Lord Davies report on the status of the UK’s board gender diversity initiative, noting that 26.1% of FTSE 100 board positions and 19.6% of FTSE 250 board positions are occupied by women, and the absence of any all-male boards in the FTSE 100 (there are just 15 in the FTSE 250). The report also recommends a new voluntary target for women’s representation on FTSE 350 boards of a minimum of 33% to be achieved within the next five years, which has been endorsed by the UK Government.
Thirty Percent Coalition Issues Board Diversity “Call to Action”
Following its Fourth Annual Summit last month, the Thirty Percent Coalition, a national organization committed to women attaining 30% of public company board seats, issued this “Call to Action” to U.S. companies:
– Commit to best practice corporate governance policies that include explicit recognition of gender and race as considerations in the board nomination process
– Select from a gender and racially diverse candidate pool when a board opportunity presents itself
– Periodically report on their progress, as public accountability is an essential component of positive corporate change
During the summit, the Coalition commended these 62 companies that had appointed a woman to their board since the January 2012 start of the Coalition’s “Adopt a Company” Campaign, which was aimed at S&P 500 and Russell 1000 boards that were (at that time) completely lacking in gender diversity.
More on “The Mentor Blog”
We continue to post new items daily on our blog – “The Mentor Blog” – for TheCorporateCounsel.net 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:
– CCO Survey: Regulatory Fatigue & Personal Liability Concerns
– XBRL Checklist
– Non-GAAP Measures: Reg. G vs. Reg S-K
– Why & How to Engage in FASB’s Standard-Setting
– Cybersecurity on Most Board Meeting Agendas
The D.C. Circuit issued a per curiam order denying the petitions of the SEC and Amnesty International for a rehearing en banc in Natl Assoc. of Manufacturers v. SEC, the conflict minerals case. No member of the court even requested a vote. The order leaves standing the decision of the three-judge panel, decided in August of this year (see this PubCo post). In that case, the panel, by a vote of two-to-one, reaffirmed its earlier decision, concluding that the requirement in the conflict minerals rule to disclose whether companies’ products were “not found to be DRC conflict free” amounted to “compelled speech” in violation of companies’ First Amendment rights.
Will the SEC file a petition for cert? Given that the panel viewed the more lenient standard of review for compelled commercial speech under the First Amendment (announced in Zauderer v. Office of Disciplinary Counsel) to be applicable only to disclosures in connection with voluntary advertising or product labeling — a position the SEC asserted in it brief “was unprecedented” — it would seem surprising for the SEC to let the panel decision remain without a further challenge.
Also see this Cooley blog entitled “Is a lot more at stake in the conflict minerals case than the conflict minerals disclosure rules?” – and this Elm Sustainability alert. It’s unclear whether Corp Fin now needs to act – they have been saying that the April 2014 statement by Keith Higgins continues to be operative. But maybe now that will change…
A few years ago, it looked like the SEC’s Enforcement Division was on the verge of bringing at least one climate change disclosure cases as a number of companies responded to informal inquiries. But nothing has resulted from those investigations so far. As noted in this blog by Kevin LaCroix, perhaps a state attorney general will be the first to bring an action in the end. Here’s an excerpt from the blog:
However, in the past week, the service of a subpoena on Exxon Mobil Corp. by New York Attorney General Eric T. Schneiderman has raised the possibility that an enforcement action against the energy giant relating to its climate change-related disclosures may be in the works. The Attorney General’s action also raises the question whether other companies and industries could also be targeted. These possibilities highlight possible corporate climate change-related enforcement and liability exposures.
In a November 5, 2015 press release, Exxon acknowledged that it had received a subpoena from the New York Attorney General “for production of documents relating to climate change.” The service of the subpoena follows a series of articles in the Los Angeles Times about the company’s climate change-related disclosures. The articles, and similar articles that appeared on the Inside Climate News website, suggest that Exxon knew of the climate change risks from fossil fuel use from its own research since the 1970s, yet extensively funded politicians and campaigns that expressed doubt over climate change science.
Don’t forget to tune in today for the webcast – “How to Draft Meaningful Sustainability Reports” – to hear Lou Coppola of the Governance & Accountability Institute, Kate Kelly of Bristol-Myers Squibb and Pam Styles of Next Level Investor Relations explain the keys to drafting sustainability reports that are meaningful to investors & other constituents and a “how to” list of things you should be aware of when drafting.
Found: Roving Billboard Tarnishing the SEC
A while back, I urged anyone that spotted the roving billboard that is lobbying against the SEC to take a picture. Someone forwarded this article that includes this pic:
Recently, Morningstar announced that it’s “retiring” 10-K Wizard – and it looks like ThomsonReuters could be shutting down LivEdgar (aka “Business Law Research”) soon too. That would mean that the remaining Edgar-enhanced service providers would be Intelligize, Lexis Securities Mosaic, SEC Info, Wolters Kluwer’s RbSourceFilings, Bloomberg Law’s Edgar tool, RR Donnelley’s Edgar Pro and Westlaw’s Business Law Center.
There was a healthy discussion about pricing & alternatives in Topic #8586 of our “Q&A Forum” that is worth reading if you’re scrambling to figure out what to do now. Of course, the SEC’s site is free. And as one member posted in the Forum: “Why doesn’t the SEC invest a little in EDGAR and provide some basic form filtering for investors. Would be used much more than XBRL…”
Webcast: “How to Draft Meaningful Sustainability Reports”
Tune in tomorrow for the webcast – “How to Draft Meaningful Sustainability Reports” – to hear Lou Coppola of the Governance & Accountability Institute, Kate Kelly of Bristol-Myers Squibb and Pam Styles of Next Level Investor Relations explain the keys to drafting sustainability reports that are meaningful to investors & other constituents and a “how to” list of things you should be aware of when drafting.
Audit Committees: Disclosing More about Auditor Hiring & Compensation
As described in this blog, the Center for Audit Quality & Audit Analytics recently released this year’s report about audit committee disclosure practices among the S&P Composite 1500. Key findings include:
– 25% of S&P 500 companies show enhanced discussion of the audit committee’s considerations in recommending the appointment of the audit firm, up from 13% in 2014
– Percentage of the S&P 500 disclosing auditor tenure increased to 54% in 2015 from 47% in 2014
– 16% of S&P 500 companies explicitly stated the role audit committees play in determining the audit firm’s compensation, doubling from 8% in 2014
– Disclosure of the criteria considered when evaluating the audit firm tripled among the S&P 500 (from 8% to 24%), and more than tripled among S&P MidCap 400 companies – from 7% to 25%. Disclosure of this criteria among S&P SmallCap 600 companies increased from 15% to 22%
– Disclosure of the audit committee’s involvement in engagement partner selection more than doubled for the S&P 500 – from 13% in 2014 to 31% in 2015
This report highlights just how large the difference is between the transparency in audit reports in the UK and those issued in the US. Notwithstanding recommendations of a US Treasury Committee seven years ago to the PCAOB and SEC to improve audit reports, US audit reports are of substantially less quality then those discussed in the report. Nonetheless, the report does note several shortcomings in the UK reports. The EU will require extended audit reports for 2017 annual reports for calendar year companies…
