All posts by George Wilson

SASB and IIRC Complete Merger to Become The Value Reporting Foundation

Hot Topic, Reporting

As investors, companies and regulators focus on developing frameworks and standards for ESG and related disclosures, two important organizations in this space have combined.

The SASB, a non-profit organization founded in 2011, has been actively working to develop sustainability standards.  The SASB Standards are currently available for 77 industries and primarily address ESG issues related to financial performance.

The IIRC, starting with its 2013 International Integrated Reporting Framework, has built a set of concepts and related approaches to build reports that focus on “value creation over time and related communications regarding aspects of value creation.”

Hopefully this combination will provide clarity in this rapidly evolving reporting area.  As you can read here, with the combination of the two organizations, they now provide resources including Integrated Thinking Principles, the Integrated Reporting Framework, and SASB Standards.  Companies can tailor their approach to ESG reporting using these tools.

As always, your thoughts and comments are welcome.

The New MD&A Rule: Part Two – Objective

Hot Topic, Reporting

In this post, we overviewed 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.

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.  If a company has not implemented the rule early, as we suggested in the earlier post, this is a good project to put on our to-do list for the summer.  Additionally, implementation of the new rule provides an opportunity to look for other opportunities to improve our MD&A disclosure.

This post explores the first of the changes to the MD&A requirements, the addition of an objective to S-K Item 303.

A clear writing objective is crucial to effective business writing such as MD&A.  Before this new rule, the most recent statement of the MD&A objective was in FR 72, the 2003 MD&A release which states:

The purpose of MD&A is not complicated. It is to provide readers information “necessary to an understanding of [a company’s] financial condition, changes in financial condition and results of operations.”  The MD&A requirements are intended to satisfy three principal objectives:

  • to provide a narrative explanation of a company’s financial statements that enables investors to see the company through the eyes of management;
  • to enhance the overall financial disclosure and provide the context within which financial information should be analyzed; and
  • to provide information about the quality of, and potential variability of, a company’s earnings and cash flow, so that investors can ascertain the likelihood that past performance is indicative of future performance.

This articulation of MD&A’s objective is over 17 years old, but it has never been part of the core guidance for MD&A in S-K Item 303.  In the new rule, the SEC included a writing objective as part of S-K Item 303 and modernized the language:

229.303 (Item 303) Management’s discussion and analysis of financial condition and results of operations.

(a) Objective. The objective of the discussion and analysis is to provide material information relevant to an assessment of the financial condition and results of operations of the registrant including an evaluation of the amounts and certainty of cash flows from operations and from outside sources. 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. The discussion and analysis must be of the financial statements and other statistical data that the registrant believes will enhance a reader’s understanding of the registrant’s financial condition, cash flows and other changes in financial condition and results of operations. A discussion and analysis that meets these requirements is expected to better allow investors to view the registrant from management’s perspective.

In the Final Rule the SEC included these statements about the new objective:

By emphasizing the purpose of MD&A at the outset of Item 303, the proposal was intended to provide clarity and focus to registrants as they consider what information to discuss and analyze. The proposal was also intended to facilitate a thoughtful discussion and analysis, and encourage management to disclose factors specific to the registrant’s business, which management is in the best position to know, and underscore materiality as the overarching principle of MD&A.

Registrants should regularly revisit these objectives in Item 303(a) as they prepare their MD&A and consider ways to enhance the quality of the analysis provided. These objectives provide the overarching requirements of MD&A and apply throughout amended Item 303. As such, they emphasize a registrant’s future prospects and highlight the importance of materiality and trend disclosures to a thoughtful MD&A.

The Final Rule also focused on the principles-based requirements for MD&A:

Rather, we continue to believe that MD&A’s materiality-focused and principles-based approach facilitates disclosure of complex and often rapidly evolving areas, without the need to continuously amend the text of the rule to update or impose additional prescriptive requirements. These amendments are intended to further emphasize these goals.

This objective will help companies improve MD&A.  Based on this new objective, here are three key issues to remember in drafting and reviewing MD&A:

  1. Don’t write from a theoretical or academic perspective. Write about what management regards as important and regularly reviews in the financial statements.
  1. Focus on the future as much as the past. Any known issues that indicate historical financial performance is not predictive of future financial performance must be considered for disclosure. (As a reminder of this disclosure requirement check out this enforcement action which involved a $5,000,000 fine when a company failed to disclose an issue that meant that revenues were likely to decline in future periods.)
  1. MD&A must focus on the financial statements but cannot stop there.It should include “other statistical data that the registrant believes will enhance a reader’s understanding of the registrant’s financial condition, cash flows and other changes in financial condition and results of operations.” (This is very consistent with the SEC’s new metrics release which you can read about in this post and hear more about in our March 6, 2020 One-Hour Briefing.)

The updated objective of MD&A and these three framing concepts help us understand what we must communicate to investors and are the foundation for effective MD&A disclosure.

In our next post we will begin applying this foundation.

As always, your thoughts and comments are welcome!

New Item 9C in Form 10-K – Holding Foreign Companies Accountable Act Disclosures

10-K Tips, Hot Topic, Reporting

On March 18, 2021, the SEC Adopted Interim Final Rules implementing disclosure requirements in the “The Holding Foreign Companies Accountable Act” (HFCA Act).  The Act became law on December 18, 2020.  The SEC’s Interim Final Rules became effective on May 5, 2021.  These rules added new Item 9C to Form 10-K and made similar changes to Forms 20-F and 40-F.

The HFCA Act requires disclosures by companies that have retained a PCAOB registered public accounting firm to issue an audit report where “that registered public accounting firm has a branch or office that:

  • Is located in a foreign jurisdiction; and
  • The PCAOB has determined that it is unable to inspect or investigate completely because of a position taken by an authority in the foreign jurisdiction.”

These companies are referred to as “Commission-Identified Issuers.”  New Item 9C(a) in Form 10-K requires that these companies “must electronically submit to the Commission on a supplemental basis documentation that establishes that the registrant is not owned or controlled by a governmental entity in the foreign jurisdiction.”  They must submit this documentation before the due date of the form.  This requirement does not apply if the company is owned or controlled by a foreign governmental entity.

If the SEC determines that a company is a Commission-Identified Issuer for three consecutive years, Section 2 of the HFCA Act requires that the Commission prohibit trading of the company’s securities.

A Commission-Identified Issuer that is a foreign issuer must make additional disclosures.  The term foreign issuer is defined in Exchange Act Rule 3b-4:

 “The term foreign issuer means any issuer which is a foreign government, a national of any foreign country or a corporation or other organization incorporated or organized under the laws of any foreign country.”

The required disclosures are specified in Section 3 of the HFCA Act and are included in Item 9C(b) below.

The updated instructions to Form 10-K now include new Item 9C:

Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.

(a) A registrant identified by the Commission pursuant to Section 104(i)(2)(A) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7214(i)(2)(A)) as having retained, for the preparation of the audit report on its financial statements included in the Form 10-K, a registered public accounting firm that has a branch or office that is located in a foreign jurisdiction and that the Public Company Accounting Oversight Board has determined it is unable to inspect or investigate completely because of a position taken by an authority in the foreign jurisdiction must electronically submit to the Commission on a supplemental basis documentation that establishes that the registrant is not owned or controlled by a governmental entity in the foreign jurisdiction. The registrant must submit this documentation on or before the due date for this form. A registrant that is owned or controlled by a foreign governmental entity is not required to submit such documentation.

(b) A registrant that is a foreign issuer, as defined in 17 CFR 240.3b-4, identified by the Commission pursuant to Section 104(i) (2)(A) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7214(i)(2)(A)) as having retained, for the preparation of the audit report on its financial statements included in the Form 10-K, a registered public accounting firm that has a branch or office that is located in a foreign jurisdiction and that the Public Company Accounting Oversight Board has determined it is unable to inspect or investigate completely because of a position taken by an authority in the foreign jurisdiction, for each year in which the registrant is so identified, must disclose:

(1) That, for the immediately preceding annual financial statement period, a registered public accounting firm that the PCAOB was unable to inspect or investigate completely, because of a position taken by an authority in the foreign jurisdiction, issued an audit report for the registrant;

(2) The percentage of shares of the registrant owned by governmental entities in the foreign jurisdiction in which the registrant is incorporated or otherwise organized;

(3) Whether governmental entities in the applicable foreign jurisdiction with respect to that registered public accounting firm have a controlling financial interest with respect to the registrant;

(4) The name of each official of the Chinese Communist Party who is a member of the board of directors of the registrant or the operating entity with respect to the registrant; and

(5) Whether the articles of incorporation of the registrant (or equivalent organizing document) contains any charter of the Chinese Communist Party, including the text of any such charter.

Rule 12b-13 requires that all item numbers be included in Form 10-K.  That said, for most companies the response to this new item will likely be “Not applicable.”

As always, your thoughts and comments are welcome.

Let’s Add MD&A Modernization to Our Summer To-do Lists

Reporting

Now that most of us are through the crunch of year-end and first-quarter reporting, it is time to give some thoughtful consideration to how we will implement the SEC’s November 19, 2020 MD&A changes.

As a reminder, this is the rule that modernized and updated several areas in S-K Item 303, including:

  • Modernizing and moving  the principal objectives of MD&A to new Item 303(a);
  • Adding Item 303(b)(1) to modernize, enhance and clarify disclosure requirements for liquidity and capital resources;
  • Adding Item 303(b)(2) to clarify, modernize and streamline disclosure requirements for results of operations;
  • Moving critical accounting estimate disclosures to new Item 303(b)(3) and modernizing these disclosure requirements;
  • Replacing current Item 303(a)(4), Off-balance sheet arrangements, with a more principles-based instruction to discuss such obligations in the broader context of MD&A;
  • Eliminating current Item 303(a)(5), Tabular disclosure of contractual obligations, as this information is required in a more principles-based, narrative form in the revised liquidity and capital resources disclosure requirements;
  • Adding an option to the interim period MD&A requirements to include sequential-quarter analysis rather than year-over-year analysis; and
  • Removing the paragraph addressing the impact of inflation, as such discussion would be required by the overall objective of MD&A.

The transition for the new rules provides that companies can voluntarily adopt the changes on an S-K item-by-item basis after the effective date of February 10, 2021.  If a company does not early implement the new rule, the mandatory transition date is the company’s fiscal year that ends on or after August 9, 2021.  For calendar year-end companies the new rules must be implemented for the year ended December 31, 2021.

A Reminder – Selected Financial Data and Quarterly Information

This is the Final Rule that also changed the requirement for the five-year summary and quarterly information disclosures.  We explored these changes in this post from January 14, 2021.  Removing the five-year summary and only including quarterly information if it has been materially, retrospectively adjusted are changes that are fairly straightforward and easy to implement.  An issue to note, if a company decides it wants to keep the five-year summary, there is no longer a Form 10-K Item 6, as it is now “reserved.”  This means that a company that wants to keep the five-year summary would have to include it somewhere else, likely MD&A.

Transition Planning – MD&A

Implementing the new MD&A rules will require more planning and thought.  There are many considerations, ranging from the new liquidity and capital resources requirements to clearer critical accounting estimate disclosures.  Additionally, in most organizations, there are several stakeholders in MD&A disclosure who will need to be involved in the implementation.  To hopefully help in this process, we are starting a series of blog posts that will explore each MD&A change and discuss the practical issues and challenges in implementation.  Each post is designed to help companies who have not implemented these new requirements plan the process and build the team to make these changes.

Perhaps more importantly, the new principles-based MD&A requirements are designed to help companies build a clearer and more informative MD&A.  This transition provides an opportunity to make MD&A more informative and helpful for investors.  Companies can combine the objective of improving their MD&A with the process of implementing the new S-K Item 303 guidance.

Our next post will explore the changes to the objective of MD&A and discuss how to use this objective as we draft MD&A to make it simpler and easier to follow.

In the meantime, to provide an example of a company that went all in and implemented the new rules for their year-ended December 31, 2020, check out Lumen Technologies 2020 Form 10-K.

To help readers understand why their 2020 Form 10-K looks different, Lumen provided this helpful disclosure at the very beginning of Item 1 about the changes in their 10-K related to new rules.

Changes from Prior Periodic Reports

In this report we have complied with the disclosures required by the Securities and Exchange Commission (“SEC”) release No. 33-10825 “Modernization of Regulation S-K Items 101, 103, and 105”, and we have early adopted the changes in disclosure standards included in SEC release No. 33-10890 “Management’s Discussion and Analysis, Selected Financial Data, Supplementary Financial Information.”

Modernization of Regulation S-K Items 101, 103 and 105

Effective as of November 9, 2020, the SEC issued Release No. 33-10825, “Modernization of Regulation S-K Items 101, 103, and 105.” This release was adopted to modernize the description of business, legal proceedings, and risk factor disclosures that registrants are required to make pursuant to Regulation S-K. Specifically, this release requires registrants to provide disclosures relating to their human capital resources and to restructure their risk factor disclosures. Additionally, the release increases the threshold for disclosure of environmental proceedings to which the government is a party.

These changes are required for any annual period subsequent to the effective date of November 9, 2020. As such, we have adopted these changes in this report.

Management’s Discussion and Analysis, Selected Financial Data, and Supplementary Financial Information

In November 2020, the SEC issued Release No. 33-10890, “Management’s Discussion and Analysis, Selected Financial Data, and Supplementary Financial Information” which will become fully effective on August 9, 2021, with voluntary compliance permitted on or after February 10, 2021. This release was adopted to modernize, simplify, and enhance certain financial disclosure requirements in Regulation S-K. Specifically, the SEC eliminated the requirement for selected financial data, only requiring quarterly disclosure when there are retrospective changes affecting comprehensive income, and amending the matters required to be presented under Management’s Discussion and Analysis (“MD&A”) to, among other things, eliminate the requirement of the contractual obligations table.

With our early adoption of this release, we have eliminated from this document the items discussed above that are no longer required. Information on our contractual obligations is still disclosed in a narrative within the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Item 7 of Part II of this report.

You will find Lumen’s MD&A on page 34 of their Form 10-K.

As always, your thoughts and comments are welcome!

It Is “Déjà vu All Over Again” – Another SEC Channel Stuffing Enforcement

Hot Topic

In this October 2020 post, we reviewed an SEC enforcement case involving HP Inc.  That case focused on HP “pushing” inventory into its distribution channels and eventually surprising investors with an unexpected revenue shortfall when channels could not accept any more inventory.  The déjà vu in that post was remembering back to a very similar “gallon pushing” enforcement involving Coca-Cola.

The “déjà vu all over again” (and thanks Yogi Berra!) in this post is about a May 3, 2021 case involving Under Armour.  This Accounting and Auditing Enforcement Release (AAER) tells an eerily similar story to the HP Inc. and Coca-Cola cases.

In mid-2015, Under Armour’s FP&A group determined that the company’s forecasted revenue growth rate would not meet internal targets or analysts’ expectations.  This forecasted revenue shortfall was a major concern for Under Armour management.  Under Armour had reported year-over-year revenue growth of over 20% for 26 consecutive quarters.  Management consistently emphasized this growth rate in its communications with investors and analysts.

Under this pressure to maintain the 20% revenue growth rate, according to the AAER, “Under Armour’s senior management directed the FP&A group and senior sales personnel, among other things, to identify existing orders that customers had requested be shipped in the next quarter that could instead be shipped in the current quarter.”  This began a six-quarter process of “pulling forward” customer orders to increase revenues to meet analysts’ expectations.

As you would expect, and just as happened in the HP Inc. and Coca-Cola cases, this robbing Peter to pay Paul process could not continue forever.  According to the AAER, “[o]n January 31, 2017, Under Armour announced revenue of $1.308 billion for the fourth quarter of 2016, which reflected year-over-year revenue growth of 12%.  Under Armour did not meet analysts’ revenue estimates for the fourth quarter of 2016, and it did not report year-over-year revenue growth of over 20%. That day, the company’s stock price dropped by approximately 23%.”

A 23% stock price drop provides clear evidence that the failure to meet revenue forecasts was material information. And while this is evidence viewed with 20-20 hindsight, it seems likely management was aware that this was material information.

When management knows there is a potential problem on the horizon (failing to meet sales growth expectations in this case), the S-K Item 303 known-trend requirements in MD&A require that companies disclose:

“any known trends or uncertainties that have had or that the registrant reasonably expects will have a material favorable or unfavorable impact on net sales or revenues or income from continuing operations.”

In addition, Instruction 3 to S-K Item 303(a) requires that within MD&A:

“discussion and analysis shall focus specifically on material events and uncertainties known to management that would cause reported financial information not to be necessarily indicative of future operating results or of future financial condition.”

The AAER states:

“Under Armour’s use of pull forwards created an uncertainty or event that was known to Under Armour’s senior management and was reasonably expected to have a material effect on the registrant’s future revenues. Under Armour’s failure to attribute growth in revenue to the use of pull forwards did not provide investors with material information about its revenue necessary for an understanding of its results of operations. As a consequence, Under Armour violated Section 13(a) of the Exchange Act and Rules 13a-1, 13a-13, and 12b-20 thereunder.”

There are other important legal issues in this case.  In the AAER, the SEC states that Under Armour violated the provisions of both the 1933 and 1934 Acts:

“As a result of the conduct described above, Under Armour violated Section 17(a)(2) and (3) of the Securities Act, which prohibit any person from directly or indirectly obtaining money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or engaging in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser, in the offer or sale of securities. A violation of these provisions does not require scienter and may rest on a finding of negligence. See Aaron v. SEC, 446 U.S. 680, 685, 701-02 (1980).”

“Also as a result of the conduct described above, Under Armour violated Section 13(a) of the Exchange Act and Rules 13a-1, 13a-11, and 13a-13 thereunder, which require reporting companies to file with the Commission complete and accurate annual, current, and quarterly reports. Under Armour also violated Rule 12b-20 of the Exchange Act, which requires an issuer to include in a statement or report filed with the Commission any information necessary to make the required statements in the filing not materially misleading.”

One important aspect of this case surrounds revenue recognition accounting.  There was no issue with how and when Under Armour recognized revenue.  No accounting issues were raised in the AAER.  The enforcement is all about disclosure.

Under Armour entered into a Cease and Desist Order and paid a $9,000,000 fine.

As always, your thoughts and comments are welcome!

SEC Institute Training Schedule – Spring, Summer and Fall Overview

About SECI

With the end of second quarter 2021 approaching and the necessity of implementing the SEC’s November 2020 MD&A and related changes looming, we thought it would be helpful to provide an overview of our current SEC Institute curriculum.  SECI’s 2021 curriculum includes conferences (“Forums”), Essentials Workshops, traditional Workshops and On-Demand content.

FORUMS

SECI’s Forums are two-day conferences that feature expert speakers addressing SEC reporting, FASB and other key developments.  In June and September 2021, our conferences will be Webcast only.  In December 2021, we are offering a live in-person option as well as a Webcast.

36th Midyear SEC Reporting & FASB Forum – Webcast

June 10-11, 2021 (EDT)

June 17-18, 2021 (PDT)

17th Annual SEC Reporting & FASB Forum for Mid-sized & Smaller Companies – Webcast

September 13-14, 2021 (PDT)

37th Annual SEC Reporting & FASB Forum – Live in person & Webcast

December 2-3, 2021 (PDT)

December 13-14, 2021 (EDT)

ESSENTIALS WORKSHOPS

Our new Essentials Workshops are virtual-only, half-day programs delivered via Zoom to provide enhanced participant involvement and engagement.  They feature small class sizes and deep dives into specific areas and topics.  Each program is offered multiple times during the year.  You can find the dates and related agendas for each program module using the links below:

SEC 101 Reporting Essentials for Lawyers Workshop

SEC 101 Reporting Essentials for Financial Professionals Workshop

Form 10-K SEC Reporting Essentials Workshop

MD&A SEC Reporting Essentials Workshop

Form 8-K SEC Reporting Essentials Workshop

Form 10-Q, Form 8-K and Proxy Disclosures SEC Reporting Essentials Workshop

SEC 10-K Disclosure Best Practices Essentials Workshop (two half days)

 

TRADITIONAL WORKSHOPS

Our traditional SEC Reporting Skills and other in-depth Workshops are SECI’s one- and two-day intensive courses, offered at various times throughout the year.  They feature small class sizes to facilitate discussion and deep dives into the technical and more complex issues in SEC reporting and accounting.  Typically, SECI’s Workshops are offered live in-person and via Webcast.  Starting in October 2021, SECI will again be offering the live in-person option at our Conference Centers in New York and California.  You can find the dates and related agendas for each program using the links below:

Two-Day Workshops:

SEC Reporting and Practice Skills Workshop for Lawyers

SEC Reporting Skills Workshop for Financial Professionals

Form 10-K In-Depth Workshop

Form 20-F In-Depth Workshop

One-Day Workshops:

MD&A In-Depth Workshop

Accounting for Business Combinations Workshop

ON-DEMAND/RECORDED PROGRAMS

We also offer several on-demand and recorded programs featuring subjects such as ESG reporting, ethics, and materiality.  You can find them all here, and look for the “Load More” button at the bottom of the list for additional content.

PCAOB Provides Insights Into the 2021 Inspection Process

Hot Topic, Reporting

On April 6, 2021, the PCAOB published two documents addressing 2021 inspections:

Audit Committee Resource – 2021 Inspections Outlook, and

Spotlight – Staff Outlook for 2021 Inspections.

While these documents are directed primarily to auditors, they provide insights to help company management avoid audit surprises and problems.

The Audit Committee Resource reinforces the PCAOB’s commitment to “seeking views and feedback from audit committees” through its outreach process.  In 2019 and 2020 the PCAOB visited with over 700 audit committee chairs.  It also provides audit committee perspectives for areas including:

  • Auditor’s Risk Assessments
  • Firms’ Quality Control Systems
  • How Firms Comply with Auditor Independence Requirements
  • Fraud Procedures
  • Critical Audit Matters
  • How Firms Implement New Auditing Standards
  • Supervision of Audits Involving Other Auditors

The Spotlight report outlines several inspection process changes and focus areas for 2021.  Changes to the inspection process will include reviewing financial reporting and audit risks posed by COVID-19 and reducing the predictability of the inspection process.  The PCAOB will select more engagements randomly and inspect more “non-traditional” audit areas.

The report outlines areas where inspections continue to find deficiencies, such as revenue and accounting estimates.  The list of other areas where the staff plans to concentrate inspection resources includes firm quality control systems, how firms comply with independence requirements, fraud procedures, critical audit matters, implementation of new auditing standards, responding to cyber threats, auditing digital assets and supervision of audits involving other auditors.  These areas are consistent with those in the Audit Committee Resource.

As always, your thoughts and comments are welcome

A Risk Factor Rewrite Example

10-K Tips, Hot Topic, Reporting

The SEC’s May 2020 risk factor disclosure modernization created a great opportunity to rethink risk factor disclosures and focus on communicating material risks.

The prior S-K disclosure requirements for risk factors included this language:

229.105 (Item 105) Risk factors.

Where appropriate, provide under the caption “Risk Factors” a discussion of the most significant factors that make an investment in the registrant or offering speculative or risky. This discussion must be concise and organized logically. Do not present risks that could apply generically to any registrant or any offering. Explain how the risk affects the registrant or the securities being offered. Set forth each risk factor under a subcaption that adequately describes the risk.

The May 2020 Final Rule revised the requirements with this language:

229.105   (Item 105) Risk factors.

(a) Where appropriate, provide under the caption “Risk Factors” a discussion of the material factors that make an investment in the registrant or offering speculative or risky. This discussion must be organized logically with relevant headings and each risk factor should be set forth under a subcaption that adequately describes the risk. The presentation of risks that could apply generically to any registrant or any offering is discouraged, but to the extent generic risk factors are presented, disclose them at the end of the risk factor section under the caption “General Risk Factors.”

(b) Concisely explain how each risk affects the registrant or the securities being offered. If the discussion is longer than 15 pages, include in the forepart of the prospectus or annual report, as applicable, a series of concise, bulleted or numbered statements that is no more than two pagessummarizing the principal factors that make an investment in the registrant or offering speculative or risky.

(Note: the entire new text of S-K Item 105 can be found here.)

Three aspects of this rule change create opportunities to rethink this disclosure:

The change in language from “significant factors” to “material factors,”

The requirement to put “generic” risk factors at the end of the discussion and use the heading “General Risk Factors,” and

The requirement to include a summary if risk factors are longer than 15 pages.

Lumen Technologies took advantage of this opportunity in a meaningful way.   In Lumen Technologies’ Form 10-K for the year-ended December 31, 2019, risk factors are on pages 20 to 48, 28 pages long.  Risks described range from “Risks Affecting Our Business” to “Other Risks.”  It would be fair to say that some of the risk factors, such as “We may not be able to compete successfully against current and future competitors” might be “risks that could apply generically to any registrant or any offering.”

After implementing the new disclosure requirements, and a major amount of work, in Lumen Technologies’ Form 10-K for the year ended December 31, 2020, risk factors are on pages 21 to 32.  This is a reduction from 28 to 11 pages!  The revised disclosures start with “Business Risks,” a simpler and more direct heading, and finish with “General Risks” as required by the new rule.  Interestingly, the General Risks are less than one page.  Competitive issues are addressed in a more tailored risk factor titled “We operate in an intensely competitive industry and existing and future competitive pressures could harm our performance.”

“We took the SEC’s changes to S-K Item 105 as an opportunity to take a fresh look at our risk factors,” said David Hamm, Associate General Counsel at Lumen Technologies. “After a robust cross-functional effort, we believe we enhanced and streamlined our risk factors while maintaining existing protections.”

Lumen Technologies’ revised presentation is more direct and clearly more investor friendly.

As always, your thoughts and comments are welcome!

A Timely Form 12b-25 Reminder from SEC Enforcement!

Reporting

On April 29, 2021, with deadlines for first-quarter reports rapidly approaching, the SEC Enforcement Division sent an important message about using Form 12b-25 to request due date extensions.  Form 12b-25 is short and simple.  And while the extensions of 15 calendar days for an annual report and 5 calendar days for a quarterly report are not particularly long, they can be helpful to avoid becoming a non-timely filer and losing Form S-3 for twelve months. Yet, like all other SEC reports, if a 12b-25 is not complete there are consequences.

The likely source of problems with 12b-25 lies in “Part III – Narrative.”  Part III provides this instruction:

State below in reasonable detail why Forms 10-K, 20-F, 11-K, 10-Q, 10-D, N-CEN, N-CSR, or the transition report or portion thereof, could not be filed within the prescribed time period.

(Attach extra Sheets if Needed)

As we discuss in our Workshops, it is important to make complete disclosures of all the reasons for any delay. One example we cite is a February 2005 enforcement case – FFP Marketing Company, Inc., Warner Williams, and Craig Scott, CPA.  In February 2002, FFP Marketing Company discovered its financial statements were materially misstated.  In a Form 12b-25 to extend the due date of its December 31, 2001 Form 10-K, the CFO/CLO failed to disclose this fact.  When the restatement came to light, the SEC enforced, sanctioned the company, and barred the CFO/CLO from SEC practice for three years.

While the FFP Marketing case was many years ago, on April 29, 2021, just before the due dates for first-quarter reports, the SEC  announced Form 12b-25 enforcement cases against eight companies.  Using data analytics, the SEC found that these companies filed Form 12b-25s that failed to disclose that “anticipated restatements” caused the delays.  Each of the companies entered into cease and desist orders and paid fines ranging from $25,000 to $50,000.

The loss of Form S-3 for twelve months, while not stated in the enforcement release, is also another likely consequence in this type of case.

As always, your thoughts and comments are welcome!

SEC Revenue Recognition Disclosure Comments

Comment of the Week, Reporting

Revenue recognition is always at or near the top of frequent SEC comment areas.  This comment letter provides two great examples.  The first asks for deeper analysis in MD&A and the second probes the company’s ASC 606 disaggregated revenue disclosures.

MD&A

This MD&A comment asks the company to disclose quantified reasons for changes in international revenues. The comment raises an interesting inconsistency in how the company discussed and analyzed changes in domestic versus international revenues.

  1. Your discussion of changes in international wholesale segment sales attributes the decrease in sales to pandemic related store closures, which does not appear to provide enough context for the changes in revenue during the periods presented. Similar to your discussion of revenue changes in domestic wholesale sales, please revise to disclose sales volume, changes in average selling price, and/or other underlying drivers for the change in international wholesale segment sales.

The company responded that it would provide incremental disclosure in future filings and provided the SEC this example disclosure:

Our international wholesale segment sales decreased $164.4 million, or 29.9%, to $385.2 million for the three months ended June 30, 2020 compared to sales of $549.6 million for the three months ended June 30, 2019. Our international wholesale sales consist of direct sales by our foreign subsidiaries, including our joint ventures, that we make to department stores and specialty retailers and to our distributors, who in turn sell to retailers in various international regions where we do not sell directly. Direct sales by our foreign subsidiaries, including our joint ventures, was $341.7 million, a decrease of $104.0 million, or 23.3%, and our distributor sales was $43.5 million, a decrease of $60.3 million or 58.1%.

The $164.4 million decrease in segment sales was due to the effects of the pandemic and related store closures impacting our wholesale and distributor customers. Substantially all of the decrease was due to a volume reduction of 29.1% in the number of units sold. The average selling price decreased 1.3%.

ASC 606 Disaggregated Revenue Disclosures

This second comment focuses on ASC 606 disaggregated revenue disclosures.  The staff noted that, from their perspective, the company did not address a key revenue driver.

  1. We note your disclosures of sales related to e-commerce channels in your MD&A discussion and on your quarterly earnings calls. We also note that sales from your e-commerce channels increased by 428.2% and were a key driver to the quarter ended June 30, 2020. Please tell us your consideration for disclosure of disaggregated revenues for your Direct-to-consumer segment by sales channel (i.e., e-commerce channel and in-store sales) pursuant to ASC 606-10-55-89 through 91. In your response, tell us the amount of e-commerce sales recognized during the periods presented and also for fiscal 2019.

In their response, the company provided a detailed analysis of the decision-making considerations in their disaggregated revenue disclosures.  While they agreed to continue to monitor this area, they did not believe that any disclosure changes were necessary.  The staff’s next letter was the closing letter.

As always, your thoughts and comments are welcome!