This is the seventh in a series of blog posts in which we are diving into the details of the SEC’s Management’s Discussion and Analysis, Selected Financial Data, and Supplementary Financial InformationFinal Rule. This rule was published in the Federal Register on January 11, 2021.  It is effective for filings on or after February 10, 2021.

The rule’s transition provisions include a mandatory transition date but also allow voluntary early compliance.  The mandatory transition date is each company’s first fiscal year that ends after August 9, 2021, 210 days after the effective date.  Companies may voluntarily apply the new rule, on an S-K item-by-item basis, in any filing made on or after the effective date of February 10, 2021.

This means a company that files a Form 10-K on or after February 10, 2021, has the option to early implement this new MD&A (S-K Item 303) guidance.  Even if a company does not implement the rule early, it is not too soon to start planning for any required changes.  And, hopefully, this exploration can be a possible stepping-off point for a process to review and possibly improve MD&A as a communication document.

In this post, we overviewed the MD&A changes.  The second, third,  fourth, fifth, and sixth posts reviewed and discussed:

The addition of an objective to S-K Item 303,

New critical accounting estimate disclosures,

Changes to results of operations and known trend discussions,

The elimination of a separate paragraph with disclosure requirements for off-balance sheet arrangements, and

Replacing the Contractual Obligations Table with a Principles-Based Requirement.

This seventh post addresses another change many preparers welcome, the addition of a provision to the interim MD&A requirements that allows companies to use sequential quarterly analysis.  With this option, companies can compare the most recent quarter to the immediately preceding quarter rather than to the same quarter in the previous fiscal year.  This new option for sequential quarterly analysis may be a more meaningful presentation for companies that do not have significant seasonality in their operations.  Under the old rules, if a company thought sequential quarter analysis better fit their business, it still had to present the quarter this year compared to the quarter last year along with sequential quarter analysis.

The SEC made this comment in the Final Rule:

“We continue to believe that the flexibility provided by these amendments will help registrants provide a more tailored and meaningful analysis that is relevant to their specific business cycles while also providing investors with material information to assess quarterly performance. Because not all businesses are seasonal, a comparison to the corresponding quarter of the preceding year may not be as meaningful as a comparison to the preceding quarter. Additionally, by requiring registrants not only to explain the reasons for a change in comparison from prior periods but also to provide both comparisons when there is such a change, we believe investors will benefit from greater insight into a registrant’s decision making and have sufficient disclosure to understand any period-over-period change.”

The change was made by adding language to the old MD&A requirement, which was also moved to new paragraph S-K Item 303(c):

(ii) Discuss any material changes in the registrant’s results of operations with respect to either the most recent quarter for which a statement of comprehensive income is provided and the corresponding quarter for the preceding fiscal year or, in the alternative, the most recent quarter for which a statement of comprehensive income is provided and the immediately preceding sequential quarter. If the latter immediately preceding sequential quarter is discussed, then provide in summary form the financial information for that immediately preceding sequential quarter that is subject of the discussion or identify the registrant’s prior filings on EDGAR that present such information. If there is a change in the form of presentation from period to period that forms the basis of comparison from previous periods provided pursuant to this paragraph, the registrant must discuss the reasons for changing the basis of comparison and provide both comparisons in the first filing in which the change is made.

If a company uses sequential quarterly analysis, it most include summary financial information for the preceding quarter or identify the prior filing that contains the earlier quarter.  And, if a change in approach is made, the company must discuss the reasons for the change and present both comparisons in the filing where the change is made.

At the most recent meeting of the Center For Audit Quality SEC Regulations Committee, the staff addressed a question for companies that want to change to the sequential quarter  approach when they adopt this new guidance.  The minutes of the meeting include this guidance from the SEC Staff:

“…the staff confirmed, that a registrant which elects to revise the quarterly periods being compared upon initial compliance with the New Rules would be required to present the MD&A comparison in both its historic presentation and the new revised presentation. For example and assuming the change in MD&A comparison occurs in the first quarter Form 10-Q, the registrant would disclose both the comparison of the first quarter of the current year with that of the prior year and the comparison of the first quarter of the current year with the fourth quarter of the prior year. It would also disclose the reason for the change.”

If you would like to see an example of a company using this presentation, check out this Form 10-Q for ChampionX Corporation.  If your company or a company you follow has used sequential quarterly analysis in their MD&A, would you please add a comment to this blog and identify the company?  Examples are always helpful!

As always, your thoughts and comments are welcome!

Robinhood Markets’ recent IPO attracted extensive press and investor attention.  One interesting disclosure in the company’s Registration Statement on Form S-1 is the Risk Factors section, which starts on page 35 and ends on page 110.  Since this is clearly more than 15 pages, as required by Regulation S-K Item 105, the company provided a two-page summary of their risk factors which you can find on pages 10-12 of the Registration Statement.

As always, your thoughts and comments are welcome!

This is the sixth in a series of blog posts in which we are diving into the details of the SEC’s Management’s Discussion and Analysis, Selected Financial Data, and Supplementary Financial Information Final Rule. This rule was published in the Federal Register on January 11, 2021.  It is effective for filings on or after February 10, 2021.

The rule’s transition provisions include a mandatory transition date but also allow voluntary early compliance.  The mandatory transition date is each company’s first fiscal year that ends after August 9, 2021, 210 days after the effective date.  Companies may voluntarily apply the new rule, on an S-K item-by-item basis, in any filing made on or after the effective date of February 10, 2021.

This means a company that files a Form 10-K on or after February 10, 2021, has the option to early implement this new MD&A (S-K Item 303) guidance.  Even if a company does not implement the rule early, it is not too soon to start planning for any required changes.  And, hopefully, this exploration can be a possible stepping-off point for a process to review and possibly improve MD&A as a communication document.

In this post, we overviewed the MD&A changes.  The second, third,  fourth and fifth posts reviewed and discussed:

The addition of an objective to S-K Item 303,

New critical accounting estimate disclosures,

Changes to results of operations and known trend discussions, and

The elimination of a separate paragraph with disclosure requirements for off-balance sheet arrangements.

This sixth post addresses a change many preparers welcome, eliminating the Contractual Obligations Table.  As is frequently the case though, when a disclosure requirement is removed, a new requirement is put in place.  The Final Rule expands disclosures about liquidity requirements and capital resources in a new, principles-based requirement. (More about this in the last post in this series.) Thus, the rules-based table is replaced with a broad, principles-based requirement for disclosure about capital resources and related information.

Over the years since the Sarbanes-Oxley Act, when the table was introduced, a multitude of questions has arisen about how to handle situations that did not easily fit the table’s brief instructions.  Perhaps the best suggestion about the table was in the SEC’s 2010 Liquidity Release – FR 83:

The purpose of the contractual obligations table is to provide aggregated information about contractual obligations and contingent liabilities and commitments in a single location so as to improve transparency of a registrant’s short-term and long-term liquidity and capital resources needs and to provide context for investors to assess the relative role of off-balance sheet arrangements; registrants should prepare the disclosure consistent with that objective. …… Registrants should determine how best to present the information that is relevant to their own business in a manner that is clear, consistent with the purpose of the disclosure and not misleading, and should provide additional disclosure where necessary to explain what the tabular data includes and does not include.

This is a very rules-based disclosure and even this statement of an overall objective for the table did not eliminate questions.  In the MD&A Final Rule Release, the SEC made these comments about eliminating the table:

Our amendments are also intended to address commenters’ concerns about the challenges imposed by the current contractual obligations table. We recognize that, because the current contractual obligations table does not have a materiality threshold, the burdens imposed by the table on registrants can include identifying, evaluating, and aggregating contracts that are not material.

By eliminating the prescriptive requirement to prepare a contractual obligations table and refocusing instead on a principles-based approach that requires a robust discussion of liquidity and capital resources, including a discussion of contractual obligations, our intent is to relieve registrants of these burdens while continuing to provide investors with material information.

 In addition, the Final Rule Release makes these important points about the principles-based approach to the discussion of contractual obligations:

We are eliminating Item 303(a)(5) as proposed and, in consideration of comments received, we are also amending Item 303(b) to specifically require disclosure of material cash requirements from known contractual and other obligations as part of a liquidity and capital resources discussion. As discussed in the Proposing Release, the Commission believed that eliminating current Item 303(a)(5) should not result in the loss of material information.

This approach is now built into S-K Item 303 with this new instruction:

4. For the liquidity and capital resources disclosure, discussion of material cash requirements from known contractual obligations may include, for example, lease obligations, purchase obligations, or other liabilities reflected on the registrant’s balance sheet. Except where it is otherwise clear from the discussion, the registrant must discuss those balance sheet conditions or income or cash flow items which the registrant believes may be indicators of its liquidity condition.

So, along with the elimination of the table we need to delve into the Final Rule’s principles-based expansion of the liquidity and capital resources discussion.  And with these changes, there is a real opportunity to improve MD&A.  The liquidity and capital resources discussion is, unfortunately, frequently poorly written.  Part of this goes back to the lack of clarity and the brevity of the old requirements, and part of it goes back to challenges in discussing what is presented in the statement of cash flows.  All in all, most companies have a chance to improve this section of their MD&A.  And that will be the focus of the last post in this series where we explore the changes for liquidity and capital resources.

As always, your thoughts and comments are welcome!

In this post, we overviewed the changes to MD&A in the SEC’s Management’s Discussion and Analysis, Selected Financial Data, and Supplementary Financial Information Final Rule. This rule was published in the Federal Register on January 11, 2021.  It is effective for filings on or after February 10, 2021.

The rule’s transition provisions include a mandatory transition date but also allow voluntary early compliance.  The mandatory transition date is each company’s first fiscal year that ends after August 9, 2021, 210 days after the effective date.  Companies may voluntarily apply the new rule, on an S-K item-by-item basis, in any filing made on or after the effective date of February 10, 2021.

This means a company that files a Form 10-K on or after February 10, 2021, has the option to early implement this new MD&A (S-K Item 303) guidance.  Even if a company does not implement the rule early, it is not too soon to start planning for any required changes.

In the second, third and fourth posts in this series, we reviewed and discussed the addition of an objective to S-K Item 303, the new critical accounting estimate disclosures, and changes to results of operations and known trend discussions.

This fifth post addresses the SEC’s proposed changes to disclosures about off-balance sheet arrangements or OBAs.

The history of OBA disclosures is deeply entwined with the history of one company, Enron.  When MD&A was created in 1980, well before Enron made news, it required discussion of OBAs via this requirement in S-K Item 303(a) for capital resources:

(2) Capital resources. (i) Describe the registrant’s material commitments for capital expenditures as of the end of the latest fiscal period, and indicate the general purpose of such commitments and the anticipated source of funds needed to fulfill such commitments.

(ii) Describe any known material trends, favorable or unfavorable, in the registrant’s capital resources. Indicate any expected material changes in the mix and relative cost of such resources. The discussion shall consider changes between equity, debt and any off-balance sheet financing arrangements.

Even with this requirement, Enron demonstrated that companies did not always robustly disclose these risks.  In the wake of Enron’s use of OBAs, Congress wrote new requirements into the Sarbanes-Oxley Act to expand OBA disclosures.  The SEC implemented this requirement via a new paragraph 4 in S-K Item 303, which starts with this language:

(4) Off-balance sheet arrangements. (i) In a separately-captioned section, discuss the registrant’s off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on the registrant’s financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors.

While the term off-balance sheet arrangements can be interpreted in several ways, S-K Item 303(a) limits this disclosure to four very technical areas:

(ii) As used in this paragraph (a)(4), the term off-balance sheet arrangement means any transaction, agreement or other contractual arrangement to which an entity unconsolidated with the registrant is a party, under which the registrant has:

(A) Any obligation under a guarantee contract that has any of the characteristics identified in FASB ASC paragraph 460-10-15-4 (Guarantees Topic), as may be modified or supplemented, and that is not excluded from the initial recognition and measurement provisions of FASB ASC paragraphs 460-10-15-7, 460-10-25-1, and 460-10-30-1.

(B) A retained or contingent interest in assets transferred to an unconsolidated entity or similar arrangement that serves as credit, liquidity or market risk support to such entity for such assets;

(C) Any obligation, including a contingent obligation, under a contract that would be accounted for as a derivative instrument, except that it is both indexed to the registrant’s own stock and classified in stockholders’ equity in the registrant’s statement of financial position, and therefore excluded from the scope of FASB ASC Topic 815, Derivatives and Hedging, pursuant to FASB ASC subparagraph 815-10-15-74(a), as may be modified or supplemented; or

(D) Any obligation, including a contingent obligation, arising out of a variable interest (as defined in the FASB ASC Master Glossary), as may be modified or supplemented) in an unconsolidated entity that is held by, and material to, the registrant, where such entity provides financing, liquidity, market risk or credit risk support to, or engages in leasing, hedging or research and development services with, the registrant.

Over time the FASB began to require financial statement disclosures about many of these areas.  In the Final Rule the SEC notes:

Since the adoption of Item 303(a)(4), as described further in the Proposing Release, the FASB has issued additional requirements that have caused U.S. GAAP to further overlap with the item. In the Commission staff’s experience, this overlap often leads to registrants providing cross-references to the relevant notes to their financial statements or providing disclosure that is duplicative of information in the notes in response to Item 303(a)(4).

The SEC also includes this rationale for the change:

For the reasons discussed in the Proposing Release, we continue to believe that the updates to U.S. GAAP since the adoption of Item 303(a)(4), as well as the current amendments designed to emphasize the principles-based nature of MD&A, justify the replacement of the current, more prescriptive requirement with a principles-based instruction.

The new MD&A guidance removes the old disclosure in paragraph (a)(4) and adds this instruction to S-K Item 303:

8. Discussion of commitments or obligations, including contingent obligations, arising from arrangements with unconsolidated entities or persons that have or are reasonably likely to have a material current or future effect on a registrant’s financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, cash requirements or capital resources must be provided even when the arrangement results in no obligations being reported in the registrant’s consolidated balance sheets. Such off-balance sheet arrangements may include: guarantees; retained or contingent interests in assets transferred; contractual arrangements that support the credit, liquidity or market risk for transferred assets; obligations that arise or could arise from variable interests held in an unconsolidated entity; or obligations related to derivative instruments that are both indexed to and classified in a registrant’s own equity under U.S. GAAP.

In theory, this change would eliminate disclosure that essentially duplicates information in the financial statement footnotes and would focus on the potential “future effect” such arrangements might have.  The opportunity to improve MD&A here focuses on eliminating information that is already in the financial statements and making MD&A disclosure more focused on risk and how OBAs might affect future financial position and performance.

As always, your thoughts and comments are welcome!

As we have discussed in our SPAC Life Cycle: Business, Legal and Accounting Considerations Forum and our SPACs in the SEC Spotlight One-hour Briefing, the SEC is focused on assuring investors have the information they need, and are not mislead, when considering investing in SPACs.

On July 13, 2021, the SEC emphasized this focus with the announcement of an enforcement action against a SPAC, Stable Road Acquisition Company, its sponsor, its CEO, the SPACs intended merger target, and the former CEO of the merger target.  The merger target, Momentus Inc., is an early-stage space transportation company.  As you can read in the related Press Release, Order, and Complaint, the SEC found that the companies and their CEOs misrepresented information about:

Test results of Momentus’ propulsion system,

Various national security concerns surrounding Momentus’ former CEO,

The extent of due diligence for the deSPACing transaction, and

Other merger-related matters.

All the parties, except for the former CEO of Momentus, are settling with the SEC.  The settlements involve penalties of more than $8 million and tailored investor protection undertakings.  Another significant part of the settlement is that the sponsors will forfeit their founders’ shares if the merger, currently scheduled for August 2021, is approved.

The SEC’s litigation is proceeding against the former CEO of Momentus.

Interestingly, Chair Gensler included comments about the case in the related Press Release, making this statement:

“This case illustrates risks inherent to SPAC transactions, as those who stand to earn significant profits from a SPAC merger may conduct inadequate due diligence and mislead investors”

This case is a great reminder to carefully consider all the SEC’s guidance for SPAC transactions. You can find much of that guidance in CorpFin Disclosure Guidance Topic 11, this Statement from the Acting Chief Accountant, this Staff Statement from CorpFin, and this Statement about warrant accounting from the Chief Accountant and Acting Director of CorpFin.

As always, your thoughts and comments are welcome.

In this post, we overviewed the changes to MD&A in the SEC’s Management’s Discussion and Analysis, Selected Financial Data, and Supplementary Financial Information Final Rule. This rule was published in the Federal Register on January 11, 2021.  It is effective for filings on or after February 10, 2021.

The rule’s transition provisions include a mandatory transition date but also allow voluntary early compliance.  The mandatory transition date is each company’s first fiscal year that ends after August 9, 2021, 210 days after the effective date.  Companies may voluntarily apply the new rule, on an S-K item-by-item basis, in any filing made on or after the effective date of February 10, 2021.

This means a company that files a Form 10-K on or after February 10, 2021, has the option to early implement this new MD&A (S-K Item 303) guidance.  Even if a company does not implement the rule early, it is not too soon to start planning for any required changes.

In the second post and third post in this series, we reviewed and discussed the addition of an objective to S-K Item 303 and critical accounting estimate disclosures.

This fourth post addresses changes for the results of operations and known trend discussions.  While they are not momentous, these changes are great reminders that this part of MD&A is not just about what happened but why things happened.  As we explored in our discussion of the objective of MD&A, one of the goals of MD&A is to help readers assess whether past performance is predictive of future performance.  Understanding the causal factors behind changes helps a reader evaluate whether these causal factors and the related changes will continue in the future.

Results of Operations Discussion

One area that has always required a bit of extra thought in this section of MD&A is this S-K Item 303 guidance about changes in revenues:

Before the change:

(iii) To the extent that the financial statements disclose material increases in net sales or revenues, provide a narrative discussion of the extent to which such increases are attributable to increases in prices or to increases in the volume or amount of goods or services being sold or to the introduction of new products or services.

The fact that this paragraph refers only to increases in revenues leaves open the question about what should be discussed about decreases in revenues.  In our Workshops, we have referred to Instruction 4, which requires discussion of all material changes in line items to close this gap.  The Final Rule changes the wording to include all material changes in revenues:

From the Final Rule:

(iii) If the statement of comprehensive income presents material changes from period to period in net sales or revenue, if applicable, describe the extent to which such changes are attributable to changes in prices or to changes in the volume or amount of goods or services being sold or to the introduction of new products or services.

The second change in the results of operations discussion is also related to Instruction 4.  In the existing S-K Item 303 this is Instruction 4:

Before the change:

4. Where the consolidated financial statements reveal material changes from year to year in one or more line items, the causes for the changes shall be described to the extent necessary (sic) to an understanding of the registrant’s businesses as a whole;Provided, however,That if the causes for a change in one line item also relate to other line items, no repetition is required and a line-by-line analysis of the financial statements as a whole is not required or generally appropriate. Registrants need not recite the amounts of changes from year to year which are readily computable from the financial statements. The discussion shall not merely repeat numerical data contained in the consolidated financial statements.

The Final Rule adds language like the first part of this Instruction to the actual text of S-K Item 303 in new paragraph (b):

From the Final Rule:

Where the financial statements reflect material changes from period-to-period in one or more line items, including where material changes within a line item offset one another, describe the underlying reasons for these material changes in quantitative and qualitative terms. Where in the registrant’s judgment a discussion of segment information and/or of other subdivisions (e.g., geographic areas, product lines) of the registrant’s business would be necessary to an understanding of such business, the discussion must focus on each relevant reportable segment and/or other subdivision of the business and on the registrant as a whole.

This language includes two new requirements:

Discuss issues even if they offset, and

Discuss changes in both qualitative and quantitative terms.

As we have blogged about many times, the SEC issues many comments requiring a quantitative discussion of causal factors in MD&A.

The second part of Instruction 4 dealing with not repeating information and making the important point that a line-by-line analysis is not generally appropriate is in new Instruction 2:

From the Final Rule:

2. 2. If the reasons underlying a material change in one line item in the financial statements also relate to other line items, no repetition of such reasons in the discussion is required and a line-by-line analysis of the financial statements as a whole is neither required nor generally appropriate. Registrants need not recite the amounts of changes from period to period if they are readily computable from the financial statements. The discussion must not merely repeat numerical data contained in the financial statements.

The Final Rule also deletes the following language in S-K Item 303 concerning the impact of inflation.

Before the change:

(iv) For the three most recent fiscal years of the registrant or for those fiscal years in which the registrant has been engaged in business, whichever period is shortest, discuss the impact of inflation and changing prices on the registrant’s net sales and revenues and on income from continuing operations.

The SEC cites several reasons for removing this requirement, including that the current language may cause companies to focus “undue attention” on inflation.  In the related proposed rule, the SEC states that they believe the current known trend disclosure requirements require a discussion of inflation if management reasonably expects it to have a material impact on the finances of the company:

The precursors to Item 303(a)(3)(iv) and Instructions 8 and 9 were adopted in 1980, during a period of rapid domestic inflation.  At that time, the Commission was concerned with the adequacy of disclosures about the effect of inflation and changing prices on registrants.

Although Instruction 8 to Item 303(a) specifies that a discussion of inflation and other changes in prices is required only when such matters are considered material, we believe that the reference to inflation and changing prices may give undue attention to the topic, even when such information is not necessary to an understanding of a registrant’s financial condition or results of operations. In order to encourage registrants to focus their MD&A on material information that is tailored to their respective facts and circumstances, we propose to eliminate Item 303(a)(3)(iv) and current Instruction 8 and Instruction 9 to Item 303(a).

We do not believe that these proposed changes would result in a loss of material information. Despite these proposed deletions, registrants would still be expected to discuss the impact of inflation or changing prices if they are part of a known trend or uncertainty that has had, or the registrant reasonably expects to have, a material favorable or unfavorable impact on net sales, or revenue, or income from continuing operations.

Known Trend Discussion

The known trend disclosure requirements are not changed dramatically.  They are clarified and emphasized in the Final Rule.  This process starts with this part of the objective articulated in new paragraph S-K Item 303(a):

The discussion and analysis must focus specifically on material events and uncertainties known to management that are reasonably likely to cause reported financial information not to be necessarily indicative of future operating results or of future financial condition. This includes descriptions and amounts of matters that have had a material impact on reported operations, as well as matters that are reasonably likely based on management’s assessment to have a material impact on future operations.

This direct language has been in various interpretive Releases, but never directly in S-K Item 303.  Including this language in S-K Item 303 provides greater clarity about this required disclosure of forward-looking information.

The second change here is another clarification.  The current language in S-K Item 303 about known trend disclosures includes this requirement:

Before the change:

(ii) …. If the registrant knows of events that will cause a material change in the relationship between costs and revenues (such as known future increases in costs of labor or materials or price increases or inventory adjustments), the change in the relationship shall be disclosed.

From the Final Rule:

(ii) …. If the registrant knows of events that are reasonably likely to cause a material change in the relationship between costs and revenues (such as known or reasonably likely future increases in costs of labor or materials or price increases or inventory adjustments), the reasonably likely change in the relationship must be disclosed.

This change clarifies that the requirement to discuss changes in the relationships between line items that might occur in the future is subject to the same probability assessment as other known trends.

If you would like a refresher about this known trend probability level and a review of how misinterpreting it can result in big problems, you can read this post about the disclosure requirements and this post about a known trend related enforcement case.

As always, your thoughts and comments are welcome!

The dramatic increase in ransomware and other cyber-attacks has made cybersecurity a top-of-mind topic. Disclosure controls and procedures (DCP), on the other hand, is likely not a top-of-mind issue for most companies.  In a June 14, 2021 Enforcement Release, the SEC reminded us that cybersecurity and DCP should both be towards the top of our risk management agendas.

This relationship between cybersecurity risk and DCP is not a new, out-of-the-blue development.  In its February 26, 2018 Release, Commission Statement and Guidance on Public Company Cybersecurity Disclosures, the SEC specifically reminded companies of their obligation to assure cybersecurity risks were appropriately addressed within DCP:

“Crucial to a public company’s ability to make any required disclosure of cybersecurity risks and incidents in the appropriate timeframe are disclosure controls and procedures that provide an appropriate method of discerning the impact that such matters may have on the company and its business, financial condition, and results of operations, as well as a protocol to determine the potential materiality of such risks and incidents.

Building on this foundational requirement, the Release provides this suggestion about DCP and communication of cybersecurity risks and incidents within a company:

In addition, the Commission believes that the development of effective disclosure controls and procedures is best achieved when a company’s directors, officers, and other persons responsible for developing and overseeing such controls and procedures are informed about the cybersecurity risks and incidents that the company has faced or is likely to face. …..Companies should assess whether they have sufficient disclosure controls and procedures in place to ensure that relevant information about cybersecurity risks and incidents is processed and reported to the appropriate personnel, including up the corporate ladder, to enable senior management to make disclosure decisions and certifications and to facilitate policies and procedures designed to prohibit directors, officers, and other corporate insiders from trading on the basis of material nonpublic information about cybersecurity risks and incidents.”

Highlighting the importance of DCP over cybersecurity risk, on June 15, 2021, the SEC announced a settled enforcement case where a company did not have appropriate cybersecurity-related DCP.  As you can read in the Press Release and related SEC Order, the SEC found that senior executives responsible for public statements related to a cybersecurity incident “were not apprised of certain information that was relevant to their assessment of the company’s disclosure response to the vulnerability and the magnitude of the resulting risk.”

According to the SEC Order, the company’s information security personnel detected a cybersecurity vulnerability in a key application that contained substantial amounts of customer data.  Senior management was not informed about the vulnerability or that it was not remediated in accordance with company policy.  Several months after the company discovered the vulnerability, a cybersecurity journalist notified the company that they had discovered the problem and that document images with sensitive customer information could be easily viewed on the internet.  Management responsible for communications with investors about this problem did not have information that should have been included in determining how to communicate to investors about this situation.

The Press Release includes this quote from Kristina Littman, Chief of the SEC Enforcement Division’s Cyber Unit:

“As a result of First American’s deficient disclosure controls, senior management was completely unaware of this vulnerability and the company’s failure to remediate it.  Issuers must ensure that information important to investors is reported up the corporate ladder to those responsible for disclosures.”

As always, your thoughts and comments are welcome!

In this post, we overviewed the changes to MD&A in the SEC’s Management’s Discussion and Analysis, Selected Financial Data, and Supplementary Financial Information Final Rule. This rule was published in the Federal Register on January 11, 2021, and is effective for filings on or after February 10, 2021.

The rule’s transition provisions provide a mandatory transition date but also allow voluntary early compliance.  The mandatory transition date is each company’s first fiscal year that ends after August 9, 2021, which is 210 days after the effective date.  Companies may voluntarily apply the new rule, on an S-K item-by-item basis, in any filing made on or after the effective date of February 10, 2021.

If a company did not implement the rule early, it is not too soon to start planning for these required changes.

In the second post in this series, we reviewed the first of the changes to the MD&A requirements, the addition of an objective to S-K Item 303.

This third post in the series addresses disclosure of critical accounting estimates.  The history of this disclosure has created more than a bit of confusion about its goal.  As a result, disclosure about critical accounting estimates is too often vague and uninformative.

The first mention of anything “critical” about accounting principles or estimates was a “Cautionary Advice” issued on December 2, 2001, in the wake of Enron’s downward spiral.  It is very short.  It builds on the belief that:

“Investors may lose confidence in a company’s management and financial statements if sudden changes in its financial condition and results occur, but were not preceded by disclosures about the susceptibility of reported amounts to change, including rapid changes.”

Without defining “critical accounting policy,” the Release suggested several disclosure steps, including:

“Each company’s management and auditor should bring particular focus to the evaluation of the critical accounting policies used in the financial statements.”; and

“Prior to finalizing and filing annual reports, audit committees should review the selection, application and disclosure of critical accounting policies.”

This was the first step in addressing accounting policies involving subjective and challenging estimates which could potentially create material financial statement volatility.  The SEC issued a proposed rule in 2002 that would have required “critical accounting estimate” disclosure.  (Note the change in terminology from “policy” to “estimate.”)

This rule was never finalized.

One of the reasons the SEC never finalized this rule was their conclusion that existing MD&A guidance provides for “critical accounting estimate” disclosure.  The 2003 MD&A release, FR 72,  formally changed the terminology to “critical accounting estimates” and provided disclosure guidance:

V. Critical Accounting Estimates

Many estimates and assumptions involved in the application of GAAP have a material impact on reported financial condition and operating performance and on the comparability of such reported information over different reporting periods. Our December 2001 Release reminded companies that, under the existing MD&A disclosure requirements, a company should address material implications of uncertainties associated with the methods, assumptions and estimates underlying the company’s critical accounting measurements. In May 2002 we proposed rules, which remain under consideration, that would broaden the scope of disclosures beyond those currently required.

When preparing disclosure under the current requirements, companies should consider whether they have made accounting estimates or assumptions where:

• the nature of the estimates or assumptions is material due to the levels of subjectivity and judgment necessary to account for highly uncertain matters or the susceptibility of such matters to change; and
• the impact of the estimates and assumptions on financial condition or operating performance is material.

FR 72, the 2003 MD&A release, goes on to say:

Such disclosure should supplement, not duplicate, the description of accounting policies that are already disclosed in the notes to the financial statements. The disclosure should provide greater insight into the quality and variability of information regarding financial condition and operating performance. While accounting policy notes in the financial statements generally describe the method used to apply an accounting principle, the discussion in MD&A should present a company’s analysis of the uncertainties involved in applying a principle at a given time or the variability that is reasonably likely to result from its application over time.

This disclosure guidance is consistent with the overall objective of MD&A to help investors understand how well historical financial performance is predictive of future financial performance.  (We discussed this objective in the previous post in this series.)  If a company makes an estimate which could materially change in future periods, investors should be aware of this risk.

With all of this as preamble, it is still clear that many companies do not disclose information consistent with this guidance.  All too frequently this disclosure is simply a repetition of information in the financial statement’s summary of significant accounting policies.

This leads us to the Final Rule which adds a critical accounting estimate disclosure requirement to S-K Item 303.  This clarifies and codifies existing Commission guidance.  S-K Item 303 now includes this paragraph:

(3) Critical accounting estimates. Critical accounting estimates are those estimates made in accordance with generally accepted accounting principles that involve a significant level of estimation uncertainty and have had or are reasonably likely to have a material impact on the financial condition or results of operations of the registrant. Provide qualitative and quantitative information necessary to understand the estimation uncertainty and the impact the critical accounting estimate has had or is reasonably likely to have on financial condition or results of operations to the extent the information is material and reasonably available. This information should include why each critical accounting estimate is subject to uncertainty and, to the extent the information is material and reasonably available, how much each estimate and/or assumption has changed over a relevant period, and the sensitivity of the reported amount to the methods, assumptions and estimates underlying its calculation.

The rule also adds this language in new Instruction 3, using the same wording as the 2003 MD&A release:

For critical accounting estimates, this disclosure must supplement, but not duplicate, the description of accounting policies or other disclosures in the notes to the financial statements.

The SEC explained their rationale for adding this requirement to S-K Item 303 in this comment from the Final Rule:

The Commission proposed amending Item 303 to add new Item 303(b)(4), which would explicitly require disclosure of critical accounting estimates in order to clarify the required disclosures of critical accounting estimates, facilitate compliance, and improve the resulting disclosure. Because registrants often repeat the information in the financial statement footnotes about significant accounting policies, the proposals were also intended to eliminate disclosure that duplicates the financial statement discussion of significant accounting policies and, instead, promote enhanced analysis of measurement uncertainties.

The Final Rule also articulates the overall goal of critical accounting estimate disclosure and its forward-looking focus:

Further, unlike existing requirements in U.S. GAAP, our amendments emphasize forward-looking information as they are intended to provide investors with greater insight into estimation uncertainty that is reasonably likely to have a material impact on financial condition and operating performance. We remind registrants that the principle that MD&A should not be a recitation of financial statements in narrative form extends to disclosure of critical accounting estimates.

This new requirement will create an opportunity for many companies to review their current disclosure and eliminate information that does not help assess potential variability or that simply duplicates information in the financial statements.  There is also an opportunity to consider whether critical accounting estimate disclosure should be similar to the auditor’s discussion of critical audit matters.

As always, your thoughts and comments are welcome!