All posts by George Wilson

The SEC’s Proposed Climate-Related Disclosures: Post Three – Strategy, Business Model, and Outlook

ESG, Hot Topic, Reporting

In the first post in this series, we overviewed the three main areas addressed in the SEC’s Proposed Rule for climate-related disclosures:

  • Governance, strategy, risk and related disclosures outside the financial statements
  • Greenhouse gas emission disclosures and attestation requirements
  • Financial statement disclosures

As you may have heard and can read about in this Press Release, on May 9, 2022, the SEC extended the comment period for this proposal to June 17, 2022.

The second post in this series explored proposed governance disclosures.  This third post focuses on more disclosures outside the financial statements, proposed S-K Item 1502’s disclosures about risks, strategy, business model and outlook. This information would be required for all companies in their annual reports on Forms 10-K and 20-F, with updates on Forms 10-Q and 6-K. These disclosures fall into the following categories:

  • Climate-related risks reasonably likely to have a material impact on the company;
  • Actual and potential impacts of identified climate-related risks on strategy, business model, and outlook;
  • How any actual and potential impacts of identified climate-related risks are considered as part of business strategy, financial planning, and capital allocation;
  • Whether and how any climate-related risks disclosed have affected or are reasonably likely to affect the consolidated financial statements;
  • Whether a company maintains an internal carbon price, and if so, how it uses such a price; and
  • The resilience of the company’s business strategy to potential future changes in climate-related risks.

Description of Climate-Related Risks

This part of proposed S-K Item 1502 requires companies to describe any climate-related risks that are “reasonably likely” to have a material impact on a company, including a material impact on its consolidated financial statements.

As a reminder, here is the definition of “climate-related risk” in proposed S-K Item 1500:

Climate-related risks means the actual or potential negative impacts of climate-related conditions and events on a registrant’s consolidated financial statements, business operations, or value chains, as a whole. Climate-related risks include the following:

(1) Physical risks include both acute risks and chronic risks to the registrant’s business operations or the operations of those with whom it does business.

(2) Acute risks are event-driven and may relate to shorter term extreme weather events, such as hurricanes, floods, and tornadoes, among other events.

(3) Chronic risks relate to longer term weather patterns and related effects, such as sustained higher temperatures, sea level rise, drought, and increased wildfires, as well as related effects such as decreased arability of farmland, decreased habitability of land, and decreased availability of fresh water.

(4) Transition risks are the actual or potential negative impacts on a registrant’s consolidated financial statements, business operations, or value chains attributable to regulatory, technological, and market changes to address the mitigation of, or adaptation to, climate-related risks, such as increased costs attributable to changes in law or policy, reduced market demand for carbon-intensive products leading to decreased prices or profits for such products, the devaluation or abandonment of assets, risk of legal liability and litigation defense costs, competitive pressures associated with the adoption of new technologies, reputational impacts (including those stemming from a registrant’s customers or business counterparties) that might trigger changes to market behavior, consumer preferences or behavior, and registrant behavior.

The definition of “reasonably likely” would be essentially the same as the definition used in MD&A, as described in Financial Release 36 (Release 33-6835), which you can review here.  (Check out Section III.B.)  As a reminder, this can be a low level of probability, perhaps even less than 50%.

These risks should be described over the short-, medium-, and long-term.  The proposed rule does not define these terms but does require that a company disclose how it defines all three time horizons.  In addition, the proposed rule specifically requires disclosure about how a company “takes into account or reassesses the expected useful life of the registrant’s assets and the time horizons for the registrant’s climate-related planning processes and goals.”

The risks required to be disclosed may include physical risks and/or transition risks.  Disclosures about physical risks would include the nature of the risk and whether it is an “acute or chronic risk.”  Other details such as the location and nature of the properties, processes, or operations subject to the physical risk would be disclosed.  The proposed rule would require several very specific disclosures about flooding and water stress risks.

Description of transition risks would include the nature of the risk, including whether it relates to regulatory (including GHG emission regulations), technological, market, liability, reputational, or other factors, and how those factors impact the company.

Description of Actual and Potential Impacts of Climate-Related Risks on Strategy, Business Model, and Outlook

This part of the proposal would require disclosure about how the risks identified above impact on a company’s:

  • Business operations, including the types and locations of its operations;
  • Products or services;
  • Suppliers and other parties in its value chain;
  • Activities to mitigate or adapt to climate-related risks, including adoption of new technologies or processes;
  • Expenditure for research and development; and
  • Any other significant changes or impacts.

Each area would also be analyzed by short-, medium-, and long-term time horizons

Discussion of Impacts of Climate-Related Risks on Business Strategy, Financial Planning and Capital Allocation 

In this section of the proposed disclosure a company would discuss how the risks identified above affect its:

  • Business strategy
  • Financial planning
  • Capital allocation

The discussion would include current and forward-looking disclosures to help a reader understand “whether the implications of the identified climate-related risks have been integrated into the registrant’s business model or strategy, including how any resources are being used to mitigate climate-related risks.”

This discussion would have to include any financial metrics that a company discloses pursuant to the proposed new rules in Regulation S-X (more details about these in later posts), as well the role of carbon offsets or renewable energy credits (RECs) in these areas.

Discussion of Impact of Climate-Related Risks on Consolidated Financial Statements

Disclosure here would include information about any climate-related risks described above that have or are “reasonably likely” to affect the company’s financial statements, including any of the climate related metrics disclosed pursuant to the proposed Regulation S-X rules.

Disclosures About Internal Carbon Prices

Companies that maintain an internal carbon price would be required to disclose how they use such a price along with other disclosures, including:

  • The price in units of the registrant’s reporting currency per metric ton of CO2e;
  • The total price, including how the total price is estimated to change over time, if applicable;
  • The boundaries for measurement of overall CO2e on which the total price is based if different from the GHG emission organizational boundary required for the related Regulation S-X disclosures; and
  • The rationale for selecting the internal carbon price.

If a company maintains more than one internal carbon price, these disclosures would be required for each price.

Resilience Disclosures

This section of the proposed rule would require companies to discuss the “resilience” of their business strategy “in light of potential future changes in climate-related risks.”  Discussion would include any analytical tools, such as scenario analysis, used by the company, including, if applicable, several details about how scenario analysis is used.

Summary

The comprehensive list of areas to be addressed and granular detail of specific disclosures within each area of proposed S-K Item 1502 present several disclosure challenges.  Many are likely to be the subject of comments in the SEC’s rulemaking process.  Our next post will explore the follow-on disclosures in proposed S-K Item 1503 about risk management processes.

As always, your thoughts and comments are welcome!

For reference, here is proposed S-K Item 1502:

Item 1502 – Strategy, business model, and outlook.

(a) Describe any climate-related risks reasonably likely to have a material impact on the registrant, including on its business or consolidated financial statements, which may manifest over the short, medium, and long term. If applicable, a registrant may also disclose the actual and potential impacts of any climate-related opportunities when responding to any of the provisions in this section.

 (1) Discuss such climate-related risks, specifying whether they are physical or transition risks and the nature of the risks presented.

(i) For physical risks, describe the nature of the risk, including if it may be categorized as an acute or chronic risk, and the location and nature of the properties, processes, or operations subject to the physical risk.

(A) If a risk concerns the flooding of buildings, plants, or properties located in flood hazard areas, disclose the percentage of those assets (square meters or acres) that are located in flood hazard areas in addition to their location.

(B) If a risk concerns the location of assets in regions of high or extremely high water stress, disclose the amount of assets (e.g., book value and as a percentage of total assets) located in those regions in addition to their location. Also disclose the percentage of the registrant’s total water usage from water withdrawn in those regions.

(ii) For transition risks, describe the nature of the risk, including whether it relates to regulatory, technological, market (including changing consumer, business counterparty, and investor preferences), liability, reputational, or other transition-related factors, and how those factors impact the registrant. A registrant that has significant operations in a jurisdiction that has made a GHG emissions reduction commitment may be exposed to transition risks related to the implementation of the commitment.

(2) Describe how the registrant defines short-, medium-, and long-term time horizons, including how it takes into account or reassesses the expected useful life of the registrant’s assets and the time horizons for the registrant’s climate-related planning processes and goals.

(b) Describe the actual and potential impacts of any climate-related risks identified in response to paragraph (a) of this section on the registrant’s strategy, business model, and outlook.

 (1) Include impacts on the registrant’s:

(i) Business operations, including the types and locations of its operations;

(ii) Products or services;

(iii) Suppliers and other parties in its value chain;

(iv) Activities to mitigate or adapt to climate-related risks, including adoption of new technologies or processes;

(v) Expenditure for research and development; and

(vi) Any other significant changes or impacts.

(2) Include the time horizon for each described impact (i.e., in the short, medium, or long term, as defined in response to paragraph (a) of this section).

(c) Discuss whether and how any impacts described in response to paragraph (b) of this section are considered as part of the registrant’s business strategy, financial planning, and capital allocation. Provide both current and forward-looking disclosures that facilitate an understanding of whether the implications of the identified climate-related risks have been integrated into the registrant’s business model or strategy, including how any resources are being used to mitigate climate-related risks. Include in this discussion how any of the metrics referenced in § 210.14- 02 of this chapter and § 229.1504 or any of the targets referenced in § 229.1506 relate to the registrant’s business model or business strategy. If applicable, include in this discussion the role that carbon offsets or RECs play in the registrant’s climate-related business strategy.

(d) Provide a narrative discussion of whether and how any climate-related risks described in response to paragraph (a) of this section have affected or are reasonably likely to affect the registrant’s consolidated financial statements. The discussion should include any of the climate related metrics referenced in § 210.14-02 of this chapter that demonstrate that the identified climate-related risks have had a material impact on reported financial condition or operations.

(e)(1) If a registrant maintains an internal carbon price, disclose:

(i) The price in units of the registrant’s reporting currency per metric ton of CO2e;

(ii) The total price, including how the total price is estimated to change over time, if applicable;

(iii) The boundaries for measurement of overall CO2e on which the total price is based if different from the GHG emission organizational boundary required pursuant to § 229.1504(e)(2); and

(iv) The rationale for selecting the internal carbon price applied.

(2) Describe how the registrant uses any internal carbon price described in response to paragraph (e)(1) of this section to evaluate and manage climate-related risks.

(3) If a registrant uses more than one internal carbon price, it must provide the disclosures required by this section for each internal carbon price and disclose its reasons for using different prices.

(f) Describe the resilience of the registrant’s business strategy in light of potential future changes in climate-related risks. Describe any analytical tools, such as scenario analysis, that the registrant uses to assess the impact of climate-related risks on its business and consolidated financial statements, and to support the resilience of its strategy and business model. If the registrant uses scenario analysis to assess the resilience of its business strategy to climate-related risks, disclose the scenarios considered (e.g., an increase of no greater than 3 ºC, 2 ºC, or 1.5 ºC above pre-industrial levels), including parameters, assumptions, and analytical choices, and the projected principal financial impacts on the registrant’s business strategy under each scenario. The disclosure should include both qualitative and quantitative information.

The SEC’s Proposed Climate-Related Disclosures: Post Two – Governance Disclosures

Hot Topic, Reporting

In the first post in this series, we overviewed the three main areas addressed in the SEC’s Proposed Rule for climate-related disclosures:

  • Governance, strategy, risk and related disclosures outside the financial statements
  • Greenhouse gas emission disclosures and attestation requirements
  • Financial statement disclosures

This second post explores the proposed governance disclosures.  As we discussed in the first post, these disclosures would be required for all companies in their annual reports on Forms 10-K and 20-F, with updates on Forms 10-Q and 6-K. As these disclosures would be outside the financial statements they are included in new S-K Item 1501 and fall into two broad categories:

  • Board oversight
  • Management’s role

 

Board Oversight

The proposed disclosures begin with a broad requirement to “describe the board of director’s oversight of climate-related risks.”  It then enumerates disclosures to include, as applicable, including:

  • Identification of any board members or committees responsible for the oversight of climate-related risks.
  • Whether any director has “expertise” in climate-related risks.
  • Board processes surrounding climate-related risk.

This disclosure would include information about climate-related risk discussions, how the board is informed about such risks and the frequency of such discussions.

  • Whether or not, and if yes how, the board considers climate-related risk in its oversight of business strategy, risk management and financial oversight.
  • Whether or not the board sets climate-related targets and if it does, information about how it sets and monitors progress for such targets.

Disclosures can also include information about how the board provides oversight of climate-related opportunities.

Management’s Role

The proposed management’s role disclosures again begin with a broad requirement to “describe management’s role in assessing and managing climate-related risks.”  Disclosures would include, to the extent applicable:

  • Whether certain management positions or committees are responsible for assessing and managing climate-related risks.
  • The identity, if they exist, of such positions or committees.
  • If such positions or committees are in place, the relevant expertise of the position holders or members. Disclosure should include appropriate detail to fully describe the nature of the expertise.
  • How relevant management or committees are provided information about and monitor climate-related risks.
  • How frequently such positions or committees report to the board or a committee of the board on climate-related risks.

Disclosures can also include information about management’s role in assessing and managing climate-related opportunities.

While proposed S-K Item 1501 is not long, it presents some challenging disclosure considerations.  The issue of board and management climate-related expertise will require significant discussion and documentation.  Requirements such as disclosing whether a board sets climate-related targets could have an impact on how companies choose to set or not set such targets.  Both these and other topics are likely to be the subject of comments in the SEC’s rulemaking process.

As always, your thoughts and comments are welcome!

 

 

For reference, here is proposed S-K Item 1501:

(Item 1501) Governance.

(a)(1) Describe the board of director’s oversight of climate-related risks. Include the following, as applicable:

(i) The identity of any board members or board committee responsible for the oversight of climate-related risks;

(ii) Whether any member of the board of directors has expertise in climate-related risks, with disclosure in such detail as necessary to fully describe the nature of the expertise;

(iii) The processes by which the board of directors or board committee discusses climate related risks, including how the board is informed about climate-related risks, and the frequency of such discussion;

(iv) Whether and how the board of directors or board committee considers climate-related risks as part of its business strategy, risk management, and financial oversight; and

(v) Whether and how the board of directors sets climate-related targets or goals, and how it oversees progress against those targets or goals, including the establishment of any interim targets or goals.

(2) If applicable, a registrant may also describe the board of director’s oversight of climate-related opportunities.

 

(b)(1) Describe management’s role in assessing and managing climate-related risks. Include the following, as applicable:

(i) Whether certain management positions or committees are responsible for assessing and managing climate-related risks and, if so, the identity of such positions or committees and the relevant expertise of the position holders or members in such detail as necessary to fully describe the nature of the expertise;

(ii) The processes by which such positions or committees are informed about and monitor climate-related risks; and

(iii) Whether and how frequently such positions or committees report to the board or a committee of the board on climate-related risks.

(2) If applicable, a registrant may also describe management’s role in assessing and managing climate-related opportunities.

The SEC’s Proposed Climate-Related Disclosures – First in a New Series

Uncategorized

With its March 21, 2022, proposal for extensive climate-related disclosures, the SEC intensified an already active discussion about how companies should provide climate-related information.  The Proposed Rule, as described in this Fact Sheet, is far reaching and complex.  It would bring SEC reporting into entirely new realms.

In this series of blog posts, we are going to first explore the overall objectives and “big picture” of the proposal.  After this “40,000-foot flyover” we will deep-dive into the details of each major area addressed by the proposed disclosures.  We will break each provision into its component parts and explore implications for reporting.

This series of blog posts will also accompany several SEC Institute One-Hour Briefings about the proposed rule.  You can find information and links to each briefing in this blog post.

This first post provides an overview of the proposal and previews subsequent posts.

To begin, the proposed disclosures would be required in annual reports on Form 10-K and 20-F with updates in Forms 10-Q and 6-K.  They would also be required in registration statements under the 1933 Act, in particular Form S-1.  The disclosures would be required for all reporting companies, including smaller reporting companies and emerging growth companies.  Smaller reporting companies are excepted from the Scope 3 disclosure requirements and non-accelerated filers are excepted from the greenhouse gas attestation report requirements.  (Asset-backed issuers would not be required to make these disclosures.)

The proposed disclosures fall into three broad areas:

  • Governance, strategy, risk and related disclosures outside the financial statements
  • Greenhouse gas emission disclosures and attestation requirements
  • Financial statement disclosures

Governance, Strategy, Risk and Related Disclosures

These non-financial statement disclosures would start with this Form 10-K instruction, solving the mystery of what Item 6 has been reserved for:

  • Item 6. Climate-Related Disclosure
    • Provide the disclosure required by Subpart 1500 of Regulation S-K (17 CFR 229.1500 through 229.1507) in a part of the annual report that is separately captioned as Climate-Related Disclosure.

The proposed new Subpart 1500 to regulation S-K would include these Items:

  • Regulation S-K Subpart 1500—Climate-Related Disclosure
    • Item 1500 Definitions
    • Item 1501 Governance
    • Item 1502 Strategy, business model, and outlook
    • Item 1503 Risk management
    • Item 1504 GHG emissions metrics
    • Item 1505 Attestation of Scope 1 and Scope 2 emissions disclosure
    • Item 1506 Targets and goals
    • Item 1507 Interactive data requirement

(Items 1504 and 1505 related to greenhouse gas emissions are discussed in a separate section below.)

The first part of the proposed addition to regulation S-K Subpart 1500 would define many terms, including:

  • Climate-related risks
  • Climate-related opportunities
  • Carbon offsets
  • Transition risks
  • Scenario analysis
  • Scope 1, 2 and 3 emissions
  • Value chain

Proposed disclosures include:

  • Climate-related risks
  • Board oversight of climate issues
  • Board climate-related expertise
  • Management of climate issues
  • Climate-related risk management disclosures
  • Climate-related targets and goals

These new non-financial statement disclosures would be subject to disclosure controls and procedures.  In addition, these new disclosures would be subject to Inline XBRL tagging.

 We will explore each of these areas in subsequent posts.

Greenhouse Gas Emission Disclosures and Related Attestation Requirements

  • These new disclosures are included in Regulation S-K Items:
    • 1504 GHG emissions metrics
    • 1505 Attestation of Scope 1 and Scope 2 emissions disclosure

The proposal would define greenhouse gases and Scope 1, 2 and 3 emissions in S-K Item 1500.  These definitions are essentially consistent with those in the Greenhouse Gas Protocol.

(p) Scope 1 emissions are direct GHG emissions from operations that are owned or controlled by a registrant.

(q) Scope 2 emissions are indirect GHG emissions from the generation of purchased or acquired electricity, steam, heat, or cooling that is consumed by operations owned or controlled by a registrant.

(r) Scope 3 emissions are all indirect GHG emissions not otherwise included in a registrant’s Scope 2 emissions, which occur in the upstream and downstream activities of a registrant’s value chain.

(1) Upstream activities in which Scope 3 emissions might occur include:

(i) A registrant’s purchased goods and services;

(ii) A registrant’s capital goods;

(iii) A registrant’s fuel and energy related activities not included in Scope 1 or Scope 2 emissions;

(iv) Transportation and distribution of purchased goods, raw materials, and other inputs;

(v) Waste generated in a registrant’s operations;

(vi) Business travel by a registrant’s employees;

(vii) Employee commuting by a registrant’s employees; and

(viii) A registrant’s leased assets related principally to purchased or acquired goods or services.

(2) Downstream activities in which Scope 3 emissions might occur include:

(i) Transportation and distribution of a registrant’s sold products, goods or other outputs;

(ii) Processing by a third party of a registrant’s sold products;

(iii) Use by a third party of a registrant’s sold products;

(iv) End-of-life treatment by a third party of a registrant’s sold products;

(v) A registrant’s leased assets related principally to the sale or disposition of goods or services;

(vi) A registrant’s franchises; and

(vii) Investments by a registrant

Measuring Scope 1, 2 and 3 emissions will clearly involve complex estimation and engineering challenges.  The proposed rule does not specify measurement methodologies but does require disclosure about measurement processes.

Companies would be required to report Scope 1 and Scope 2 emissions.  In addition, companies, except for smaller reporting companies, would be required to report Scope 3 emissions if material or if the company has published a target for such emissions.

Accelerated and large-accelerated filers would also be required to provide an attestation report about their Scope 1 and 2 emissions.  The proposed rule provides requirements for the attestation report and for the entity providing the attestation report.

The attestation report would be phased in the first two years providing limited assurance and reasonable assurance after the initial period.

We will explore each of these areas in subsequent posts.

Financial Statement Disclosures

Climate-related financial statement disclosure requirements would be provided by a new Article 14 in Regulation S-X.  This new Article would include:

  • Rule 14-01 Climate-related disclosure instructions
  • Rule 14-02 Climate-related metrics

Included in these disclosures would be information about:

  • Financial impacts of severe weather events and other natural conditions
  • Financial impacts related to transition activities
  • Financial estimates and assumptions impacted by severe weather events and other natural conditions
  • Expenditures to mitigate risks of severe weather events and other natural conditions

Generally, disclosure would be required when the absolute value of any of the provided climate metrics is over 1% of the related financial statement line-item.

These disclosures would be included in a company’s internal control over financial reporting

They would also be included in a company’s annual audit.

We will explore each of these areas in subsequent posts.

Proposed Transition Provisions

The transition provisions are complex.  The proposed rule includes this schedule, which assumes a company has a calendar year-end:

 Climate Transition One

 Climate Transition Two

If you have any specific questions or issues you would like future posts to address, please put them in the comments section.

Three Deep-Dive Climate Disclosure One-Hour Briefings

Hot Topic, Reporting

Understanding the scope, magnitude and implications of the SEC’s proposed new climate-related disclosures and building a readiness plan for eventual change are crucial actions items management can take now to ensure compliance if and when the proposed rules are adopted.  To help in this process, SECI is presenting a series of in-depth Briefings covering the three major areas included in the proposal.

Climate Disclosures – A Deep Dive Into the SEC’s Proposed New Governance, Strategy and Risk Disclosures – May 9, 2022

This Briefing focuses on the proposed new governance, strategy, business model, outlook, risk, and target disclosures. Discussion will include proposed disclosures surrounding board of directors’ climate expertise and implications of the new rules for setting climate-related targets.

Climate Disclosures – A Deep Dive Into the SEC’s Proposed New Greenhouse Gas Disclosures and Attestation Requirements – May 11, 2022

This Briefing focuses on proposed new disclosures about Greenhouse Gas Protocol Scope 1, 2 and 3 emissions and the related attestation requirements for accelerated and large accelerated filers.  Discussion will include the process of measuring greenhouse gas emissions, the complexities in measuring Scope 3 emissions, greenhouse gas intensity disclosures, and the levels of attestation as the disclosure phases in.

Climate Disclosures – A Deep Dive Into the SEC’s Proposed New Financial Statement Disclosures – May 18, 2022

This Briefing focuses on the proposed new financial statement disclosures for climate-related matters.  Discussion will include materiality considerations, line-item requirements, and severe weather event disclosures.

Each briefing will be available on-demand after its original presentation.

Also, if you missed our earlier Briefing where we provided an overview of the proposed rules, please be sure to check out “Climate Change – The SEC’s Proposed New Disclosures.”

As always, your thoughts, and suggestions for future briefing topics, are always welcome!

SEC Proposes Changes to 13D and 13G Beneficial Ownership Reporting

Reporting

The cover pages of both Form 10-K and Form 10-Q have this seemingly random disclosure:

 Indicate the number of shares outstanding of each of the registrant’s classes of common stock, as of the latest practicable date.

At first glance the reason for this disclosure is somewhat mysterious.  While it might be relevant to investors if the company has issued or repurchased shares after period-end, the most important purpose of this disclosure is actually for reporting major shareholdings.

Regulation 13D-G essentially requires owners of 5% or more of a class of common equity securities registered under Section 12 of the 1934 Act to make their ownership public.  (You can read more about the details of this reporting process here.)  The cover page disclosure about number of shares outstanding is used to determine if a shareholder owns 5% or more of the company’s common shares.

Generally, the Rules require that this ownership be reported on a Form 13D, but if the person  reporting does not have the purpose of “changing or influencing control of the issuer” then they can report on the shorter Form 13G.

On February 10, 2022, the SEC proposed changes to Regulation 13D-G.  The deadlines for Forms 13D and 13G have not been changed in decades.  In the Press Release announcing this proposal, Chair Gary Gensler stated:

“These amendments would update our reporting requirements for modern markets, reduce information asymmetries, and address the timeliness of Schedule 13D and 13G filings.  Investors currently can withhold market moving information from other shareholders for 10 days after crossing the 5 percent threshold before filing a Schedule 13D, which creates an information asymmetry between these investors and other shareholders.  The filing of Schedule 13D can have a material impact on a company’s share price, so it is important that shareholders get that information sooner.”

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

  • Accelerate the filing deadlines for Schedules 13D and 13G,
  • Include certain derivative instruments in this reporting process,
  • Clarify when two or more persons comprise a “group” subject to 13D and 13G reporting, and
  • Require Schedules 13D and 13G to use a “structured, machine-readable data language.”

 This blog post from Nelson Mullins includes more discussion.

As always, your thoughts and comments are welcom

SEC Proposes New Rules for SPACs

Hot Topic, Reporting

On March 31, 2022, the SEC finished an active month of rulemaking by proposing new rules for SPACs.  (March also included proposed rules dealing with cybersecurity and climate change.) The SPAC proposed rules affect all phases of the SPAC life cycle and would:

Add new Regulation S-K Items to specify disclosures required in a SPAC’s IPO.  The proposed disclosures are similar to those addressed in SEC comment letters, CorpFin Disclosure Guidance Topic No. 11 and this Statement by Acting Chief Accountant Paul Munter.

Require new disclosures for de-SPACing transactions, including disclosures about the fairness of a de-SPACing transaction and any related financing for SPAC shareholders.

Create a rule that a business combination between a public shell company and an operating company is a sale of securities to the public shell company’s shareholders.  This would likely require some de-SPACing transactions to be registered on Form S-4 or F-4 rather than simply using a proxy statement.

Change provisions in the 1933 Securities Act to provide that the private company in a de-SPACing transaction would be a “co-registrant.”  This could raise liability concerns for the target and its directors.

Change the financial statement requirements for private operating companies in a transaction with a SPAC or other shell company to better align them with the financial statement requirements for an IPO.

Amend the SEC’s requirements in S-K Item 10 about the use of projections to provide information to help investors better assess the basis and reliability of projections.

Change the definition of a blank check company to include SPACs.  Because blank check companies cannot use the 1995 Private Securities Litigation Reform Act safe harbors for forward looking statements, SPACs would not be able to rely on these safe harbors.

Provide that underwriters of a SPAC’s IPO that are subsequently actively involved in the SPACs search for a merger partner would be considered underwriters in the related de-SPACing transaction.

Require a re-assessment of smaller reporting company status within four days of a de-SPACing transaction.

Clarify the status of SPACs as investment companies, by providing a new safe harbor from investment company status.

You can learn more in this Fact Sheet and the Proposed Rule.  The comment period for the proposal will be until the later of 30 days after publication in the Federal Register or May 31, 2022.

If you would like to learn more about the proposed rules they will be discussed in depth at SECI’s “The SPAC Life Cycle:  Business, Legal and Accounting Considerations Forum,” on April 19, 2022.  In addition, we are planning a One-Hour Briefing on this topic later in April.

As always, your thoughts and comments are welcome!

SEC Staff Accounting Bulletin 121 – Crypto-Asset Accounting for Platform Operators

Reporting

On March 31, 2022, the SEC staff issued SAB 121 to address “accounting for entities that have obligations to safeguard crypto-assets held for their platform users.”  SAB 121 has been added to Topic 5 in the SAB codification.

The SAB starts with this fact set to specify the circumstances in which the SAB would apply:

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.

As you can read in the SAB, given the risks that “Entity A” has taken on in its business, the staff believes that it should record a liability on its balance sheet for the fair value of the crypto-assets it holds for customers.  This liability would be measured at fair value at each period end.  A corresponding asset would also be recorded and carried at fair value.  In addition, the SAB enumerates disclosures the staff believes appropriate in these circumstances.

Companies should apply this guidance for interim and annual periods ending after June 15, 2022.

 As always, your thoughts and comments are welcome!

New Compliance and Disclosure Interpretations from CorpFin

Reporting

On March 22, 2022, CorpFin added six Compliance and Disclosure Interpretations (C&DI’s).  The new C&DI’s primarily address business combination activities, including filing Form 8-K for material acquisition agreements and making proxy solicitations.  The new C&DI’s may be particularly relevant for SPAC transactions.

You can find all the new C&DI’s here.

As always, your thoughts and comments are welcome!

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

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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!