Tag Archive: proxy disclosure enhancements

FAQs on Two Recent Concept Releases on Audit Committee Matters

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1. On July 1, 2015, the Securities and Exchange Commission (SEC) issued a Concept Release on Possible Revisions to Audit Committee Disclosures. What does it say?

The release asserts that current  disclosure rules may not mandate enough disclosures about activities of audit committees  in the reports they make in annual proxy statements and explores possible disclosure mandates in several areas—most of them pertaining to the external auditor. The areas outlined are as follows:

  • Audit Committee’s Oversight of the Auditor
  • Audit Committee’s Process for Appointing or Retaining the Auditor
  • Qualifications of the Audit Firm and Certain Members of the Engagement Team Selected by the Audit Committee
  • Location of Audit Committee Disclosures in Commission Filings
  • Smaller Reporting Companies and Emerging Growth Companies

In addition to these areas, the SEC asks for comment on the possible need for disclosures on accounting and financial reporting process or internal audits and invites comment on the scope of audit committee work.

Throughout the 55-page release, the SEC asks questions—74 in all—seeking the views of interested parties, such as audit committee members and investors, on what disclosures would be valuable. All but two of these questions pertain to oversight of the independent auditor.

2. What exactly is a concept release?

A concept release is an early indication that an agency is thinking about a matter and may issue new rules or standards on it. Any agency may issue a concept release. This current SEC concept release is the only one issued so far in 2015, and it is the first SEC concept release issued since 2011. (There were no SEC concept releases at all from 2012–2014.) While there are no recent studies showing the correlation between concept releases and rulemaking, we can assume that new rulemaking may follow. In this sense, concept releases are not the same as interpretive releases, which interpret new laws or court decisions, or policy statements, which clarify the SEC’s positions on particular matters.

3. How does this SEC concept release fit into the SEC’s overall “disclosure effectiveness initiative”?

The release is aimed at improving audit committee disclosures in concert with the stated goal of the SEC’s ongoing disclosure effectiveness initiative, described in a recent NACD Directorship article. Under this initiative, the SEC’s Division of Corporation Finance is reviewing the disclosure requirements under Regulation S-K (regarding company disclosures generally) and Regulation S-X (regarding company disclosures in financial statements) to “facilitate timely, material disclosure by companies….” So far the SEC has focused on the forms 10-K (annual report), 10-Q (quarterly report), and 8-K (updates). Later phases of the project will cover the compensation and governance information in proxy statements.

If the SEC’s new concept release on audit committee disclosures leads to rules mandating additional disclosures that are not material to investors, it would operate against the goals of the initiative. As SEC Chair Mary Jo White said in her keynote speech at NACD’s fall conference two years ago, “[w]e must continuously consider whether information overload is occurring as rules proliferate and as we contemplate what should and should not be required to be disclosed going forward.”

4. Has NACD commented on the SEC’s concept release?

Yes. On Sept. 8, 2015, the NACD submitted a comment letter affirming the importance of improved disclosures. However, the letter also argues that the choice of what to disclose should be up to audit committees themselves because they are in the best position to describe how they are fulfilling those duties. The NACD letter cautions that information should only be included in a proxy statement (or any other disclosure for that matter) if it would be useful to investors.

In the letter, NACD proposes that audit committees take voluntary action by finding new ways of disclosing the broad scope of their work. NACD has also offered to convene a meeting between the SEC and audit committee leaders in order to accomplish this.

The NACD letter followed a more detailed comment submitted to the SEC on Aug. 3, 2015, by Dennis Beresford, a member of the NACD board of directors, an experienced director and audit committee leader, and the former chair of the Financial Accounting Standards Board (FASB).

In his letter, Mr. Beresford states that the concept release focuses too heavily on the audit committee’s relationship with the auditor, which he says is important but should not dominate the committee’s work. He notes that of the 74 questions asked in the release, all but the last two focus on this topic.

Based on his experience, Mr. Beresford suggests that audit committee reports need to cover a wider range of topics, as suggested by the Audit Committee Collaboration, a group that includes NACD. In order of priority, these topics include:

  • Scope of duties (as referenced in the audit committee charter).
  • Committee composition (especially information on qualifications of the “audit committee financial expert”).
  • Oversight of financial reporting (highlighting how the committee is assessing the quality of financial reporting).
  • Oversight of independent audit (selection of the audit firm and lead engagement partner, and compensation, oversight, and evaluation of the audit firm). Mr. Beresford argues that the disclosure of the lead engagement partner’s name is unnecessary. [This is the subject of a separate Public Company Accounting Oversight Board (PCAOB) release on Rules to Require Disclosure of Certain Audit Participants on a New PCAOB Form.]
  • Risk assessment and risk management (which is often assigned to the audit committee).
  • Information technology (such as cybersecurity, which is also often assigned to the committee).
  • Internal audit (namely, internal audit plan review and results).
  • Legal and compliance (such as any discussions with legal counsel).

This list of possible topics for voluntary audit committee disclosures accords with NACD’s own publications on audit committee work. These subjects are frequently discussed in meetings of our Audit Committee Chair Advisory Council and in the webcasts and gatherings we produce with KPMG’s Audit Committee Institute.

Notably, Mr. Beresford warns against turning these subjects into mandatory “check-the-box” disclosures. Because audit committee reports are still in an early stage of development, he hopes “that the SEC allows them to continue to develop largely as ‘best practices’ without becoming overly prescriptive [emphasis added].” Regarding disclosure of the name of the lead engagement partner, he says that this should be left to the discretion of audit committees: “If they felt it would be useful to investors, they could include it in their reports in the proxy statement.”

5. Are there any other agency concept releases that audit committee members should know about?

Yes. On July 1, 2015, the PCAOB issued a concept release on Audit Quality Indicators (AQIs) with a comment deadline of Sept. 29, 2015. The release notes that “[t]aken together with qualitative context, the indicators may inform discussions among…audit committees and audit firms.”

NACD does not plan to comment on this release. However, we note that NACD member J. Michael Cook, chair of Comcast’s audit committee, together with Comcast’s executive vice president and chief accounting officer, Lawrence J. Salva, sent a comment letter advising the PCAOB of their views: “We encourage the PCAOB to be judicious with regard to the number of recommended AQIs, as we believe too many AQIs would lessen their impact. As you have previously noted, audit committees have many responsibilities and a limited amount of time, and as you are aware, audit quality requires more than measurable indicators; skepticism and independence are necessary to turn quantifiable indicators into real audit quality.”

6. What is the key takeaway from the SEC and PCAOB concept releases for audit committees?

The SEC and PCAOB are being proactive on the audit committee front. The SEC wants audit committees to say more about their activities in the proxy statement, and the PCAOB wants audit committees to use specific metrics to judge the quality of audits. Comments from the director community have pointed out the importance of ensuring that disclosures are material and that metrics are useful. In response to these two concept releases, audit committee leaders and members might consider taking two main actions:

  • Review disclosures and their metrics to ensure they are useful.
  • Reach out to the SEC and PCAOB to express views on these matters.

A Final Word

SEC and PCAOB regulators strive to strengthen the U.S. economy through enlightened rulemaking, but they cannot do it alone. They need to hear the voice of the director. NACD members can make a positive difference in this regard.

SEC Decision Allows New Method of Stakeholder Engagement

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This week, the Securities and Exchange Commission (SEC) moved corporate disclosures into the year 2013, or at least 2010. In a release on Tuesday, the agency recognized that social media channels—including Facebook and Twitter—were acceptable methods of disclosure. The SEC included one caveat: investors must be made aware ahead of time that the company will utilize these channels for disclosure.

This move comes following scrutiny surrounding a tweet from Netflix CEO Reed Hastings in November 2012, which announced that subscribers had passed the achievement of one billion hours viewed. The SEC issued Netflix a Wells Notice, announcing the investigation of Hasting’s potential violation of Regulation FD, which requires companies to disseminate information in a way that does not favor one investor group over another.

After the investigation began more CEOs found themselves in hot water over social media postings. In January, Zipcar was forced to make a last minute filing to the SEC following CEO Scott Griffith’s tweet about Avis acquiring his company. Elon Musk, chief executive of Tesla Motors, also made headlines for his tweet about an upcoming announcement from the company.

The SEC’s decision to allow corporate use of social media to disseminate information is not completely unexpected. Since 2008, the agency has permitted the use of corporate home pages to disclose sensitive information—the subject of its release, “Guidance on the Use of Company Websites for Disclosure Purposes.” In fact, SEC representatives have encouraged delegates to NACD’s advisory councils to use corporate websites when providing additional details that go beyond what is required by public filings.

For directors, a group notoriously slow to adopt social media, the SEC’s decision could mark a significant shift in how companies disclose sensitive information, and investor relations generally. Starting with the 2009’s Proxy Disclosure Enhancements and reinforced by Dodd-Frank, the length of corporate filings has increased with the number of required disclosures. As a result, directors have been recommended to “tell their story,” going past boilerplate language to explain the rationale and strategy behind decisions.

First and foremost, it is critical that directors understand their company’s consumer and investor base. If these groups are active on Facebook and Twitter, the SEC’s decision to conditionally permit these as communication channels could provide a new method of engaging increasingly active stakeholder groups.

Undertaking an Honest Self-Assessment: Is Your Board Aligned?

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In my last post, I shared three questions every board should ask itself when conducting an evaluation:

  • Are we independent?
  • Do we have chemistry?
  • Do we have the right team?

Now, let’s see how boards are finding the answers.

Preliminary data from the 2012 NACD Public Company Governance Survey to be released this fall shows:

  • 92 percent of boards conduct full board evaluations.
  • 83 percent of boards conduct committee evaluations.
  • 48 percent of boards conduct individual director evaluations.
    • Of those individual evaluations:
      • 56 percent are self-evaluation.
      • 51 percent are peer evaluation.
      • 31 percent are evaluation by the governance committee.
    • 12 percent of boards allow management to evaluate them as part of a 360° review.

What Do the Numbers Tell Us?  

Clearly the vast majority of companies are conducting board evaluations of some type.  Is this the result of regulation or a commitment to good governance?  Some companies are required to perform evaluations by stock exchange mandate.  Others have been influenced by the 2009 Securities and Exchange Commission (SEC) rule on proxy disclosure enhancements, which required boards to expand disclosures with regard to directors’ individual skill sets, diversity and overall board composition.

While meeting regulatory requirements may be part of the motivation behind board evaluations, in our experience of facilitating evaluations, we’ve found that the primary driver is a desire to build a high-performing board, well-suited to anticipate, meet and overcome the challenges ahead. Increasingly, boards are moving away from the “check-the-box” mentality and utilizing evaluations as a tool to ensure the board is aligned with the company’s long-term strategy.

As noted above, almost half of our survey respondents conduct individual director evaluations.  While self- and peer-evaluations continue to be the thorniest of the bunch, we’ve found they tend to yield the most fruitful results.

Now is the time to look at your board’s evaluation processes. When was the last time your board examined its composition and performance?  Do you approach evaluations as a pro forma exercise, which can minimize insights, or are you taking an honest look at whether your board’s practices and composition are optimized to meet the company’s long-term goals?