All posts by George Wilson

SEC Proposes Climate Disclosure Rules

Hot Topic, Reporting

On March 21, 2022, the SEC proposed rules to require new climate-related disclosures.  As you can read in this Press Release, the proposed rule would require new disclosures, including information about:

  • “Governance of climate-related risks and relevant risk management processes
  • How any climate-related risks identified by the registrant have had or are likely to have a material impact on its business and consolidated financial statements, which may manifest over the short-, medium-, or long-term
  • How any identified climate-related risks have affected or are likely to affect the registrant’s strategy, business model, and outlook
  • The impact of climate-related events (severe weather events and other natural conditions) and transition activities on the line items of a registrant’s consolidated financial statements, as well as on the financial estimates and assumptions used in the financial statements.”

The proposed rule would also require disclosure about greenhouse gas emissions.  All registrants would make disclosures about Scope 1 and Scope 2 emissions.  Scope 3 disclosures would be required if material or if the company has set a goal that includes Scope 3 emissions.  Accelerated and large accelerated filers would be required to include an attestation report regarding greenhouse gas emission disclosures.

You can read more in this Fact Sheet and find the proposed rule here.  The comment period for the proposed rule will be for 30 days after publication in the Federal Register or 60 days after the date of publication on sec.gov, whichever period is longer.

You can learn more in our One-Hour Briefing scheduled for April 8, 2022, “Climate Change – The SEC’s Proposed New Disclosures.”

As always, your thoughts and comments are welcome.

SEC Comments and Responses – Physical Effects of Climate Change

Hot Topic, Reporting

In this post we reviewed an SEC comment letter exchange focused on climate change issues, currently a major focus area in the SEC’s comment process.  On September 21, 2021, Meta Platforms, Inc. (“Meta”), formerly known as Facebook, received this comment letter with a number of climate-related questions.  One of the comments asked Meta about the physical impacts of climate change on its business:

  1. You disclose that your business may be subject to interruptions, delays, or failures resulting from earthquakes, adverse weather conditions, or other natural disasters. If material, discuss the significant physical effects of climate change on your operations and results. This disclosure may include the following:
    • severity of weather as a result of climate change, such as floods, hurricanes, sea levels, extreme fires, and water availability and quality;
    • quantification of material weather-related damages to your property or operations;
    • potential for indirect weather-related impacts that have affected or may affect your major customers or suppliers, and
    • any weather-related impacts on the cost or availability of insurance.

After requesting more time than the regular 10 days to respond, Meta’s November 4, 2021, response letter addressed this comment with the following language:

Response

The Company respectfully advises the Staff that it regularly assesses its physical climate-related risks. Under the Applicable Disclosure Requirements, it has not experienced any material physical effects of climate change, including as related to the above listed events, on its operations and results that would be required to be disclosed under the Applicable Disclosure Requirements.

In a November 12, 2021, second comment letter, the staff included this follow-up comment:

  1. Your response to prior comment 6 states that you have not experienced material physical effects of climate change. Please tell us about the physical effects of climate change you have experienced, such as effect on the severity of weather, and how you assessed the materiality of such effects. As requested in our prior comment, quantify weather-related damages to your property or operations, discuss how weather-related impacts have affected or may affect your customers or suppliers and discuss any weather-related impacts on the cost or availability of insurance.

Meta’s December 29, 2021, response to this follow-up comment provides interesting details and a more extensive discussion about how the company tracks the impact of factors such as weather on its business:

Response

As noted in response to comment 4, the Company generates substantially all of its revenue from selling advertisements, which are displayed on the Company’s online products – Facebook, Instagram and Messenger – as well as third-party applications and websites. Its material properties are its headquarters, its offices and its data centers, as disclosed under Part I, Item 2. Properties of the 2020 Form 10-K.

As part of the disclosure process described in response to comment 1, the Company assesses whether any events, including any adverse weather conditions, had a material effect on the Company, including as a result of any damage to the Company’s properties or operations. In particular, the Company’s finance team runs a financial statement line item fluctuation analysis each quarter to identify events, including weather events, that had a significant impact on financial results in the relevant reporting period. Members of the legal and finance teams then hold a meeting (the “Significant Events Meeting”) to review the results. For purposes of this review, the finance team reviews transactions or events where the aggregate, cumulative impact is or exceeds $100 million, which is approximately 0.3% of income before provision for income taxes for the year ended December 31, 2020. In that meeting, they assess whether any identified events had a material effect on the Company’s business, operating results or financial condition and whether to otherwise make any updates to the Company’s disclosures.

We would note that as part of this review in the first quarter of 2021, the Company’s finance team identified that the polar vortex wave impacting the United States in February 2021 caused the Company to incur increased energy costs of approximately just over 1% of the Company’s net income for the quarter. Although the impact of the polar vortex was therefore not material to the Company, the Company determined that it would be prudent to update its risk factors relating to adverse weather events in the Form 10-Q filed for the first quarter of 2021 to disclose that it had been, and may in the future be, subject to increased energy or other costs to maintain the availability or performance of its products in connection with adverse weather events. In connection with preparing the 2020 Form 10-K, however, the Company did not identify any potentially material weather-related impacts on its business or any weather-related events that caused potentially material damages to its properties or operations.

With respect to the Company’s customers and suppliers, as noted above, the Company generates substantially all of its revenue from selling advertisements, which are displayed on the Company’s online products – Facebook, Instagram and Messenger – as well as third-party applications and websites. The Company has a large and diversified base of advertisers in many countries around the world. As disclosed in the 2020 Form 10-K, no customer represented 10% or more of the Company’s revenue in 2020 and the Company generated revenue from advertisers located throughout the world, with approximately 45% generated in the United States and Canada, 24% generated in Europe, 23% generated in Asia-Pacific and 8% generated in the rest of the world. The Company believes that its diversified customer base, both by size and geography, helps mitigate the risk that any adverse weather event affecting any particular customer or any particular region where it has customers would have a material effect on the Company as a whole, and in preparing the 2020 Form 10-K, the Company did not identify weather-related impacts to its customers that had a potentially material effect on the Company’s business, operating results or financial condition. Weather-related impacts that have affected the Company’s suppliers include events such as the polar vortex in the United States in February 2021 that led to disruption in the business of the Company’s energy suppliers and increased energy costs for the Company as described above. However, in preparing the 2020 Form 10-K, the Company did not identify weather-related impacts to its suppliers that had a potentially material effect on the Company’s business, operating results or financial condition.

With respect to the cost or availability of insurance, the Company reviews events that had a significant impact on costs, including insurance costs, during the Significant Events Meeting. Members of the Company’s treasury team, which handles its insurance policies, participate in the Significant Events Meeting and in the disclosure process more generally. No potentially material increases in the cost or availability of insurance as a result of climate change were identified during the Significant Events Meeting or otherwise in connection with the preparation of the 2020 Form 10-K.

After this detailed response, the SEC sent Meta the regular closing letter for this comment process.

 

As always, your thoughts and comments are welcome!

SEC Will Meet on March 21, 2022, to Consider Climate-Related Rulemaking

Hot Topic, Reporting

On March 10, 2022, one day after the SEC formally proposed rules that would require new cybersecurity disclosures, the SEC set March 21, 2022, as the date the Commission will meet to consider proposing rules to “enhance and standardize registrant’s climate-related disclosures for investors.”  You can find the meeting notice and a link to the agenda here.

The meeting will begin at 11:00 AM ET and will be webcast on the SEC’s website, www.sec.gov.

As always, your thoughts and comments are welcome!

SEC Institute Workshop Instructor Opportunities

About SECI

SEC Institute, a division of PLI, is searching for qualified Workshop Instructors.  Here are the details and follow-up information.

SEC Institute

Workshop Instructor Opportunities

Please contact Robin Goldstein, Director & Sr. Program Attorney, SEC Institute, at rgoldstein@pli.edu 

 Workshop Instructors

SECI is always looking for dynamic speakers to join our team of Workshop Instructors.  Workshop Instructors lead Workshops on various SEC reporting and accounting topics relevant to SEC reporting professionals.

Workshops are led in an interactive style and are designed to make the learning experience participant focused.  Because of the highly technical and complex material in the Workshops, Instructors must use a variety of teaching and discussion techniques to actively engage participants in the learning process and help them accomplish their learning objectives.  Instructors are encouraged to research the companies of our registered participants to identify relevant topics and provide targeted examples designed to encourage participant discussion and questions.

Workshop Topics

SEC Institute offers Workshops in the following practice areas:

  • SEC reporting – Forms 10-K, 10-Q, and 8-K, the proxy statement, Section 16, and MD&A
  • Forms 20-F and 6-K for foreign private issuers
  • Accounting for business combinations
  • Other relevant and timely SEC reporting and accounting topics

Workshop Instructors must have in-depth expertise in one or more of the above-referenced areas.

Requisite Experience and Qualifications

Technical Background

Workshop Instructors must be CPAs with 10 years of demonstrated expertise and possess in-depth, technical understanding of the content, as well as current knowledge of recent developments in SEC reporting and accounting issues most relevant to SEC reporting professionals. Candidates must have prior relevant work experience; such experience may come via public accounting or industry.

Teaching and Communication Skills

Candidates must have prior teaching experience and demonstrated success documented by classroom evaluations or other similar feedback tools.

Honorariums

SECI offers honorariums for teaching SECI Workshops.  A Workshop honorarium will be paid to the Instructor after a Workshop is conducted and such payment encompasses all advance preparation, planning, coordination, and time involved leading up to conducting the Workshop.

Workshop Instructor will also be reimbursed for reasonable hotel, travel, and meal expenses in accordance with PLI’s reimbursement policy in the event the Workshop Instructor is asked to travel to a PLI Conference Center to teach a Workshop.

This nature of this opportunity will be that of an independent contractor, not an employee of PLI.

About SEC Institute (SECI)

Founded in 1983, SEC Institute‘s mission is to provide the most up-to-date SEC reporting, compliance and accounting education through innovative Workshops and programs. SECI is committed to helping public companies, auditors and attorneys stay ever current in meeting the filing and financial reporting requirements of the U.S. Securities and Exchange Commission.

About Practising Law Institute (PLI)

Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York, and was founded in 1933 by Harold P. Seligson. PLI provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats. This content is delivered by more than 4,000 volunteer faculty, including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of treatises, course handbooks, answer books and journals, also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community.

Interested Applicants
Interested applicants are to submit a biography and resume to rgoldstein@pli.edu for consideration.  Please indicate which practice area(s) you are most interested in instructing.  Only qualified applicants will be contacted.

 

Practising Law Institute (PLI) is an equal employment opportunity (EEO) employer committed to workplace diversity. All qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, military and veteran status, sexual orientation, or any other factor protected by federal, state or local law.

SEC Proposes Rules on Cybersecurity Disclosures

Hot Topic

On March 9, 2022, in a highly anticipated meeting, the SEC proposed rules that would require enhanced disclosures about material cybersecurity incidents and public companies’ policies and procedures surrounding cybersecurity risk.

As you can read in the accompanying Fact Sheet, the Proposed Rule would:

  • Require disclosure on Form 8-K of material cybersecurity incidents,
  • Require periodic updating of information about previously disclosed incidents, and
  • Require periodic disclosures including policies and procedures to identify and manage cybersecurity risks, management’s role in such policies and procedures, and information about board expertise and oversight of cybersecurity risk.

The Proposed Rule will have a comment period of 60 days from publication on the SEC’s website or 30 days after publication in the Federal Register, whichever is longer.

As always, your thoughts and comments are welcome!

Chair Gensler Cybersecurity Speech – Cybersecurity and Securities Law

Hot Topic, Reporting

On March 9, 2022, as you can read in this Meeting Notice, the SEC is meeting to consider rule making about “Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure.”

As a bit of background, on January 24, 2022, Chair Gary Gensler delivered a speech titled “Cybersecurity and Securities Laws” at the Northwestern Pritzker School of Law’s Annual Securities Regulation Institute.  He addressed cybersecurity from a variety of perspectives, including a discussion of what may be the very first “hack”, a telegraph scheme in France in 1834!  His remarks included this discussion of public company cybersecurity disclosures, which provides important insights for drafting risk factor and related cybersecurity disclosures in 34 Act reports:

Public Companies

Next, let me turn to public companies’ disclosure with respect to cyber risk and cyber events.

The basic bargain is this: Investors get to decide what risks they wish to take. Companies that are raising money from the public have an obligation to share information with investors on a regular basis.

Disclosure regimes evolve over the decades. Cybersecurity is an emerging risk with which public issuers increasingly must contend.

Thus, I’ve asked staff to make recommendations for the Commission’s consideration around companies’ cybersecurity practices and cyber risk disclosures. This may include their practices with respect to cybersecurity governance, strategy, and risk management.

A lot of issuers already provide cyber risk disclosure to investors. I think companies and investors alike would benefit if this information were presented in a consistent, comparable, and decision-useful manner.

In addition, I’ve asked staff to make recommendations around whether and how to update companies’ disclosures to investors when cyber events have occurred.

Make no mistake: Public companies already have certain obligations when it comes to cybersecurity disclosures. If customer data is stolen, if a company paid ransomware, that may be material to investors. As recent cases show, failure to make accurate disclosures of cybersecurity incidents and risks can result in enforcement actions.

You can find links to discussions of cybersecurity enforcement cases listed in this post about SEC enforcement priorities.

As always, your thoughts and comments are welcome!

SEC Acting Chief Accountant Statement – FASB Agenda Consultation

Reporting

On February 22, 2022, SEC Acting Chief Accountant Paul Munter issued a Statement titled “Statement on the FASB’s Agenda Consultation: Engagement with Investors and Other Stakeholders Vital to Development of High Quality Accounting Standards.”

After a brief review of the FASB’s Agenda Consultation project Dr. Munter states:

“It is critically important that the FASB, and the Trustees of the Financial Accounting Foundation (the “FAF”) in its important oversight role over the FASB, continue to improve processes for obtaining and considering investor and other stakeholder feedback, and for clearly communicating with those stakeholders regarding how that feedback has impacted the standard-setting process. On behalf of Commission staff in OCA, in this statement, we highlight below why engagement with investors and other stakeholders is vital to the FASB’s ability to develop high quality accounting and financial reporting standards, and we provide observations on the FASB’s standard-setting process, its agenda consultation, and the related ITC feedback from investors and other stakeholders.”

The Statement then provides the Acting Chief Accountant’s observations on the Agenda Consultation project in areas including:

  • The Importance of Investors and Other Stakeholders to the Standard-Setting Process
  • Overall Feedback and Making the Case for Change
  • Disaggregation of Financial Reporting Information
  • Climate-Related Transactions and Disclosures
  • Digital Assets

As you read the Statement, you may want to focus on Dr. Munter’s discussion of the costs of preparing disaggregated information, the FASB’s goodwill project, and accounting and disclosures for digital assets.

The conclusion of the Statement includes this thought:

The financial reporting system’s collective objective of providing investors with high quality financial reporting demands that all stakeholders seek ways to improve and better address the needs of investors. In that regard, it is important that both the FAF and FASB focus on continued improvement in the fulfillment of their respective roles and responsibilities in the financial reporting system—especially in their efforts to more promptly address significant and evolving investor needs within the context of the financial statements.

As always, your thoughts and comments are welcome.

SEC Issues Staff Accounting Bulletin 120 Addressing “Spring-Loaded” Share-Based Payments

Reporting

On November 24, 2021, the SEC Staff issued Staff Accounting Bulletin 120 to address recognition of compensation expense if a company enters into share-based payment transactions when in possession of material non-public information.  Such share-based payment transactions are frequently referred to as “spring-loaded.”  The SAB provides the staff’s views that companies must consider the impact of the release of material non-public information when estimating the fair value of such grants.

The SAB describes its objective with this language:

“Specifically, the staff is updating the Series to provide additional guidance to companies estimating the fair value of share-based payment transactions in accordance with Topic 718 regarding the determination of the current price of the underlying share and the estimation of the expected volatility of the price of the underlying share for the expected term when the company is in possession of material non-public information.”

The SAB includes a number of examples dealing with these issues.  It also updates various other SAB areas to conform with ASC 718.

As a reminder the Press Release closes with these words:

“The statements in SABs are not rules or interpretations of the Commission nor are they published bearing the Commission’s official approval. They represent interpretations and practices followed by the Division of Corporation Finance and the Office of the Chief Accountant in administering the disclosure requirements of the federal securities laws.

As always, your thoughts and comments are welcome!

HeadSpin Enforcement – Avoiding Penalties

Reporting

On August 25, 2021, the SEC announced charges against the former CEO of HeadSpin, Inc.  HeadSpin is a private tech company in Silicon Valley.  According to the Press Release and related SEC Complaint, the former CEO falsely manipulated sales records and key performance metrics.  The SEC alleges that the former CEO exerted control over HeadSpin’s financial reporting and was able to misstate results with actions such as creating false invoices and altering real invoices.

In this type of announcement the SEC almost always includes language that their investigation “is continuing.”  Usually further cases follow against the company and other parties.  The SEC did enforce against HeadSpin, but, surprisingly, the enforcement action did not assess penalties against the company.  As outlined in the SEC’s January 28, 2022,  Press Release and Complaint, it was an internal investigation started by the company’s Board of Directors that discovered the CEO’s actions.  Additionally, the company took significant remedial steps including removal of the CEO, hiring new senior management and repaying investors.  Based on these steps and others outlined in the Complaint,  the SEC settled fraud charges against the company without any penalty.

Both the Press Release and SEC Complaint offer valuable insights about steps companies can take when such a problem is discovered.

As always, your thoughts and comments are welcome!

A Climate Change Comment Letter

ESG, Hot Topic

On February 24, 2021, Acting Chair Allison Herren Lee issued a Statement on the Review of Climate-Related Disclosure  where she directed the CorpFin staff to “enhance its focus on climate-related disclosures” in filing reviews.  On September 22, 2021, CorpFin issued a Sample Letter to Companies Regarding Climate Change Disclosures to provide example climate change comments.  The issues raised in the sample letter to companies are consistent with the SEC’s 2010 FR-82 – Commission Guidance Regarding Disclosure Related to Climate Change.  You can find more background in this blog post.

The staff posts all the comment letters and responses from an individual company review twenty business days or more after the review is closed.  Some climate change related reviews are now being posted on the EDGAR system.  Cintas, Monster, and Palo Alto Networks are among the companies that have received climate change related comment letters.

Cintas received a climate change related comment letter in September 2021.  You can read the complete SEC comment letters and company responses with these links:

            First SEC comment letter – Dated September 16, 2021 – five climate comments

            First company response  – Dated September 28, 2021

            Second SEC comment letter – Dated October 21, 2021

            Second company response – Dated November 3, 2021

            Closing letter – Dated January 14, 2022

The first comment in the SEC’s letter to Cintas is essentially the same as the first example in the Sample Letter to Companies:

  1. We note that you provided more expansive disclosure in your CSR report than you provided in your SEC filings. Please advise us what consideration you gave to providing the same type of climate-related disclosure in your SEC filings as you provided in your CSR report.

The company’s first response to this comment was:

Response: In response to the Staff’s comment, the Company respectfully advises the Staff that the Company’s Environmental, Social and Governance Report (“ESG Report”) is designed to provide selected information regarding the Company’s ESG performance to a broad audience that includes investors, employee-partners, customers, communities, suppliers and other interested parties. As a result, the ESG Report may include detailed information, such as information regarding the Company’s efforts to reduce energy use and greenhouse gas (“GHG”) emissions, that is beyond the scope of the information that is required to be disclosed pursuant to applicable SEC rules and/or regulations. When considering whether to include climate-related disclosure in its SEC filings, including the type of climate-related disclosure provided in the ESG Report, the Company takes into account applicable SEC rules and regulations, including Item 101, Item 103, Item 105 and Item 303 of Regulation S-K, as well as the SEC’s Compliance and Disclosure Interpretations, available guidance from the Staff (including the SEC’s 2010 Commission Guidance Regarding Disclosure Related to Climate Change) and applicable standards of materiality. The Company also considers that, while certain climate-related information may be of interest to readers of the ESG Report, such information may not be material to investors in the context of an SEC filing, while SEC filings may otherwise include separate climate-related disclosure required pursuant to Regulation S-K and other applicable SEC rules, regulations and guidance. The Company respectfully advises the Staff that it will, in response to the Staff’s comment, and historical practice, continue to evaluate its climate-related disclosure in SEC filings in light of applicable SEC rules, regulations and guidance and applicable standards of materiality.

The SEC’s follow-up comment letter did not raise this issue again.

The fourth comment in the original letter addressed, consistent with FR-82 and the Sample Letter, the indirect effects of climate change:

  1. To the extent material, discuss the indirect consequences of climate-related regulation or business trends, such as the following:
  • decreased demand for goods or services that produce significant greenhouse gas emissions or are related to carbon-based energy sources;
  • increased demand for goods or services that result in lower emissions than competing products;
  • increased competition to develop innovative new services that result in lower emissions; and
  • any anticipated reputational risks resulting from operations or products that produce material greenhouse gas emissions.

The companies first response to this comment was:

Response: In response to the Staff’s comment, the Company respectfully advises the Staff that the Company considers applicable SEC disclosure rules, regulations, and guidance, including Item 101, Item 105 and Item 303 of Regulation S-K, when preparing its SEC filings and, as applicable and to the extent material, evaluates disclosure regarding indirect consequences of climate-related regulation or business trends. As of the filing of the Form 10-K, however, the Company had not identified any material indirect consequences of climate-related regulation or business trends. The Company respectfully advises the Staff that it will, in response to the Staff’s comment, and historical practice, continue to evaluate its climate-related disclosure in SEC filings, including disclosure regarding the indirect consequences of climate-related regulation or business trends, in light of applicable SEC rules, regulations and guidance and applicable standards of materiality.

The SEC’s second letter included a follow-up comment about this issue:

  1. Your response to prior comment 3, which states that you have not identified any material indirect consequences of climate-related regulation or business trends, appears to be conclusory without providing sufficient detail. Please provide us with additional support for your conclusion, including with regard to the individual items noted in our prior comment.

The company’s second response expanded its answer:

Response: As background for the Staff, the Company respectfully advises the Staff that the Company provides certain products and services that generally enhance its customers’ image and help keep customers’ facilities and employees clean and safe. These products and services include uniforms through rental and sales programs, mats, mops, restroom supplies, first aid and safety products, fire extinguishers and testing and safety training. None of these products produce significant greenhouse gas emissions. The Company generally provides these products to customers via approximately 11,000 local delivery routes. These local delivery routes are run by Company employees on Company-owned trucks. These trucks do create greenhouse gas (“GHG”) emissions in compliance with current regulatory emissions requirements. Many of the Company’s products, such as uniforms, mats, mops and other rentable products, are laundered in Company-owned laundry facilities. The laundering process uses water and energy to run the washers, dryers and other processing equipment.

In response to the Staff’s comment, the Company respectfully advises the Staff that, at the time of the filing of the Form 10-K and to date, aside from the general economic effects of the COVID-19 pandemic on its customers, the Company did not experience and has not experienced any significant decreased demand for products or services, whether such products or services might produce significant GHG emissions or are related to carbon-based energy sources, or significant demand for products or services that might result in lower emissions than competing products or services. The Company did not identify and has not identified any significant changes in competition due to innovative new services that result in lower emissions. While the Company has had inquiries from customers and investors about its fleet and laundry processes with regards to GHG emissions and other carbon-based energy impacts, the Company did not identify and has not identified any material reputational risks resulting from these inquiries.

The next letter the SEC sent to the company was the closing letter, which included the SEC’s standard closing language:

We have completed our review of your filing. We remind you that the company and its management are responsible for the accuracy and adequacy of their disclosures, notwithstanding any review, comments, action or absence of action by the staff.

As always, your thoughts and comments are welcome!