Category Archives: Reporting

Check Out SECI’s New, Convenient, Virtual, Interactive, Modular Workshops

Reporting

If you have been looking for basic or advanced SEC training that fits your schedule and does not require any travel, check out SECI’s new SEC Essentials and Best Practices series.  Featuring our standard of excellence Workshop leaders and ever-current content, Workshops are conducted in three to four-hour modules and delivered via our virtual, interactive platform.  You will be able to ask questions and interact directly with our Workshop leaders to ensure that your specific reporting issues are addressed.

You can find more information about these programs by following the links below:

SEC Reporting Essentials 101 Workshop

November 12, 2020 – 1:00 to 4:00 EST

In this virtual Workshop for financial reporting professionals, you will build the practical knowledge base, skills and tools required to succeed in an SEC reporting role and apply these tools to examples from the Form 10-K annual report.  Participants will learn the process of researching SEC disclosure questions and working with the SEC staff in the review process.  This is an interactive Workshop (via Zoom) and open discussion is encouraged to enhance and deepen the learning process.

 

Form 10-K SEC Reporting Essentials Workshop

November 20, 2020 – 1:00 to 4:00 EST

In this virtual Workshop for financial reporting professionals, using the SEC’s guidance discussed in our SEC Reporting Essentials 101 Workshop, you will build the knowledge and skills needed to draft and review the Form 10-K annual report.  Discussion will include requirements from Regulation S-K for non-financial statement disclosures and the financial statement requirements of Regulation S-X as well as requirements from the Staff Accounting Bulletins, Compliance and Disclosure Interpretations and other sources.  Discussion will also include frequent SEC comment areas for Form 10-K.

SEC 10-K Disclosure Best Practices Workshop

December 1-2, 2020 – Day One: 1:00 to 4:45 EST / Day Two: 1:00 to 4:30 EST

Designed for accounting and financial reporting professionals with prior SEC reporting experience, this Workshop provides an in-depth examination of the Business, Risk Factors and MD&A sections in Form 10-K.  The Workshop is conducted over two afternoons (half-days)

Best practice examples from different industries and companies are discussed in each section to illustrate effective disclosure practices.  This is an interactive Workshop (via Zoom) and open discussion is encouraged to enhance the learning process.  Frequent SEC comment areas and hot topics will also be reviewed.

As always, your thoughts and comments are welcome!

A Déjà vu Enforcement Case – A Disclosure Control Reminder

Hot Topic, Reporting

In this blog post we reviewed a “know-trend” enforcement case against HP INC., which had pushed inventory into channels, a tactic which was “reasonably likely” to result in lower revenues in the future.

An additional important aspect of this case focuses on “disclosure controls and procedures.”  Unlike ICFR, companies must report on the effectiveness of their disclosure controls and procedures each quarter. Disclosure controls are defined in Exchange Act Rule 13a-15(e):

(e) For purposes of this section, the term disclosure controls and procedures means controls and other procedures of an issuer that are designed to ensure that information required to be disclosed by the issuer in the reports that it files or submits under the Act (15 U.S.C. 78a et seq.) is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by an issuer in the reports that it files or submits under the Act is accumulated and communicated to the issuer’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.

In the AAER for the HP INC. case the SEC stated:

HP lacked sufficient disclosure controls and procedures to ensure that the use of pull-ins and A-Business to meet quarterly sales targets, and their negative impact on margin and potential impact on future quarters, was provided to the HP executives responsible for the company’s disclosures in a timely manner as required by Rule 13a-15(a). Among other things, HP lacked company-wide controls over the use of discounts by regional management. Moreover, HP’s lack of visibility into channel inventory levels below Tier 1 left it without meaningful insight into its overall channel health. In addition, HP’s disclosure process lacked sufficient interaction with operational personnel who reasonably would have been expected to recognize that the known trends attributable to the pull-ins and A-Business were absent from HP’s disclosures.

Instead, HP’s principal financial officers and principal executive officers who were responsible for the company’s disclosures learned of the conduct in connection with HP’s planned shift from a push to a pull model quarters after the actual conduct had taken place. HP’s failure to have controls and procedures in place to ensure the timely provision of information to the officers responsible for its disclosures violated Exchange Act Rule 13a-15(a).

An important theme in this case is that a company’s disclosure process needs to involve persons responsible for business decisions and strategy as well as those persons who are responsible for and knowledgeable about disclosure requirements.  This dovetails nicely with the new Regulation S-K Item 101 disclosure requirement to include:

“Any material changes to a previously disclosed business strategy.”

As always, your thoughts and comments are welcome!

FASB to Address Supplier Finance Program Disclosures

Hot Topic, Reporting

As we discussed in this December 2019 post, the SEC has publicly raised concerns and issued comments about disclosures surrounding supplier finance programs.  On October 21, 2020, the FASB decided to add a project to its Technical Agenda titled “Disclosure of Supplier Finance Programs involving Trade Payables.”  You can read the Board Meeting Handout discussion of the project here.

The SEC’s comments and the FASB’s updated Technical Agenda seem to be sending a clear message:  if you are using this kind of finance tool be sure to address disclosures in a robust manner.  As a starting point, here is a list of disclosure considerations from an SEC comment letter:

We have reviewed your response to our prior comment. Please address the following:

Tell us the dollar amount of accounts payable that were settled via your supply chain finance program for each year from 2012 to 2018.

Tell us the balance of your accounts payable that represents amounts due to participating financial institutions under your supply chain finance programs as of each year from 2012 to 2018.

Provide us an analysis to support your conclusion that amounts settled under your supply chain finance program are accounts payable rather than bank financing.

Your analysis should also address the classification of your payments made to the participating financial institutions as well as related disclosure of non-cash financing activities required by ASC 230-10-50-3.

You state in your response that the payment terms to the participating financial institution are the same as if you paid the supplier directly. Please tell us the terms of your supply chain finance arrangements with the participating financial institutions as well as the payment terms with your vendors.

You also state in your response that the program improved your accounts payable days. Please explain how the supply chain finance program increased your accounts payable days outstanding.

Tell us the extent to which the continued improvement to your accounts payable days, and related liquidity, are expected to continue as well as the factors, such as changes in interest rates, that may limit the availability of your supply chain finance programs.

To the extent material, expand your management’s discussion and analysis to address the impact the supply chain finance program has had on your liquidity and whether or not that impact is expected to continue.

Please ensure you have filed as exhibits, all agreements relating to your supply chain finance program.

As always, your thoughts and comments are welcome!

Perks Enforcement Cases

Hot Topic, Reporting

“It’s like déjà vu all over again.”

                        Lawrence Peter “Yogi” Berra (May 12, 1925 – September 22, 2015)

Have you been wondering about current focus areas in the SEC’s Enforcement Division?  In our last post we explored one such area, channel stuffing and the related failure to disclose MD&A known trends.  On September 30, 2020, the SEC brought the latest in a series of cases dealing with failure to appropriately disclose executive perks.  This is clearly another focus area for enforcement.

These cases usually involve not using the appropriate tests to identify perks and the related failure to disclose these perks to shareholders in the proxy solicitation process and related Form 10-K disclosures.  This is a quote from the SEC’s September 30, 2020 press release:

“Hilton failed to disclose approximately $1.7 million worth of travel-related perquisites and personal benefits it provided to executive officers from 2015 through 2018. The perquisites included the CEO’s personal use of Hilton’s corporate aircraft and executive officers’ hotel stays. The order finds that Hilton failed to appropriately apply the SEC’s compensation disclosure rules to its system for identifying, tracking and calculating perquisites.”

 In July 2018, the SEC brought a very similar case against Dow Chemical.  In that case approximately $3 million in perks were not appropriately evaluated and disclosed.  Dow failed to use the appropriate test to evaluate items for disclosure as perks.  This test states:

An item is not a perquisite or personal benefit if it is integrally and directly related to the performance of the executive’s duties.

Otherwise an item is a perquisite or personal benefit if it confers a direct or indirect benefit that has a personal aspect without regard to whether it may be provided for some business reason or for the convenience of the company, unless it is generally available on a non- discriminatory basis to all employees.

Dow was required to hire a consultant to review the company’s policies and procedures and take appropriate corrective action to assure such disclosure were proper in the future and also paid a penalty of $1,750,000.

In a similar case announced on June 4, 2020, this one involving Argo Group International Holdings, the SEC stated in their press release:

“The SEC’s order finds that in its proxy statements for 2014 through 2018, Argo disclosed that it had provided a total of approximately $1.2 million in perquisites and personal benefits, chiefly retirement and financial planning benefits, to its then CEO.  According to the order, Argo failed to disclose over $5.3 million it had paid on the CEO’s behalf, including in filings for 2018 after a shareholder issued a press release alleging undisclosed perks to the CEO.  The order finds that the perks Argo paid for, but did not disclose, included personal use of corporate aircraft, helicopter trips and other personal travel, housing costs, transportation for family members, personal services, club memberships, and tickets and transportation to entertainment events.  The order finds that, as a result, Argo understated perks and personal benefits paid to the CEO over this period by more than $1 million per year, or 400%.  The CEO resigned from that position in November 2019.”

In December 2017, the SEC enforced against Provectus, stating in the related press release that:

“Provectus lacked sufficient controls surrounding the reporting and disclosure of travel and entertainment expenses submitted by its executives.  The order further finds that Provectus’ former CEO, Dr. H. Craig Dees, obtained millions of dollars from the company using limited, fabricated, or non-existent expense documentation, and that these unauthorized perks and benefits were not disclosed to investors.  Provectus’ former CFO, Peter R. Culpepper, also allegedly obtained $199,194 in unauthorized and undisclosed perks and benefits.”

In one last case to highlight, on September 8, 2015, the SEC enforced against MusclePharm Corporation for a number of issues including, as described in the related press release:

“that MusclePharm omitted or understated nearly a half-million dollars’ worth of perks bestowed upon its executives, including approximately $244,000 paid to CEO Brad Pyatt related to automobiles, apparel, meals, golf club memberships, and his personal tax and legal services.  Even after the company began an internal review of undisclosed executive perks and then-audit committee chair Donald Prosser became directly involved in the process, MusclePharm continued filing financial statements that failed to disclose private jet use, vehicles, and golf club memberships for its executives.“

Seems like there is a recurring theme in all of this and a related heads-up to be sure all perks are appropriately identified and disclosed!

As always, your thoughts and comments are welcome!

Federal Register Publication – Modernization of Regulation S-K Items 101, 103 and 105

Hot Topic, Reporting

Thanks to the eagle eye of Reed Wilson, who, along with Rich Alven, teaches our new Zoom based “SEC Form 10-K Disclosure Best Practices” virtual workshop, for spotting the October 8, 2020 Federal Register  publication of the SEC’s August 26 Final Rule “Modernization of Regulation S-K Items 101, 103, and 105”. The effective date of the rule is 30 days after publication in the Federal Register.

This means that the new rule will be effective for filings made 30 days after October 8, 2020.

For 10-Q’s filed after this date the changes to S-K Item 105, requiring a summary of risk factors if you have over 15 pages of risk factors, and the new requirements for legal proceedings disclosures, will be effective.

For 10-K’s filed after this date the changes to all the modernized S-K Items will be effective.

We will have more details about these changes in posts next week.

As always, your thoughts and comments are welcome!

A Déjà vu Enforcement Case

Reporting

On September 30, 2020, the SEC announced a settled enforcement action against HP Inc.  This is another classic “known-trend” case.  Almost all these actions begin with a large, surprise stock drop.  Here is an excerpt from the SEC’s Accounting and Auditing Enforcement Release (or AAER):

 On June 21, 2016, HP held a “Business Update Call” midway through the company’s third fiscal quarter. On the call, HP announced its change from a push to a pull model, and it explained that the company would be making a “one-time investment to reduce the level of supplies inventory across the channels.” HP disclosed that, “[a]s a result of the channel inventory reduction, the supplies net revenue is expected to be reduced by $225 million in each Q3 and Q4.”

 The $450 million reduction represented 5% of HP’s reported Printing segment net revenue for the second half of 2016. Asked by an analyst about the size of the inventory reduction, HP’s CFO described it as “fairly material, because as I mentioned it’s about $450 million over a couple of quarters.” Following the announcement, HP’s stock price dropped nearly 6%, eliminating more than $1 billion of market capitalization.

One of the causal factors behind this announcement was that HP had pushed inventory into its distribution channels.  Again, from the AAER:

During that period, certain regional managers at HP undertook undisclosed sales practices to increase quarterly operating profit, leading to an erosion of profit margin and an increase in channel inventory, while failing to disclose known trends and uncertainties associated with the conduct.

When distribution channels are “stuffed” there is a real risk that future revenues and profitability will suffer. This is the issue behind the known trend in this case as the SEC points out in the release:

Item 303(a)(3)(ii) of Regulation S-K, 17 C.F.R. § 229.303(a), requires such companies to describe, among other things, “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 its annual report on Form 10-K. Instruction 3 to Item 303(a) of Regulation S-K requires that the “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.”

In its 2015 Form 10-K, HP failed to disclose the known trend of increased quarter-end discounting leading to margin erosion and an increase in channel inventory, and the unfavorable impact that the trend would have on HP’s sales and income from continuing operations, causing HP’s reported results to not necessarily be indicative of its future operating results. The failure to disclose that material trend caused HP’s 2015 Form 10-K to be materially misleading.

If you are experiencing a deep feeling of déjà vu as you read this post (and were involved in SEC reporting 15 years ago!), you are likely remembering that HP’s case involves exactly the same issue as an enforcement action against Coca-Cola in 2005.  In that case Coke had “gallon-pushed” syrup to certain bottlers.  The following quotes from the Coca-Cola AAER are eerily similar to those from the HP case above:

To encourage bottlers to purchase additional concentrate, CCJC extended more favorable credit terms than usual to bottlers, typically increasing payment terms from eight to twenty-eight or thirty days. No rights of return on gallons sold pursuant to gallon pushing were offered to bottlers, and no concentrate sold pursuant to gallon pushing was returned to CCJC or Coca-Cola. All concentrate sold pursuant to gallon pushing was paid for by the bottlers.

On January 26, 2000, Coca-Cola filed a Form 8-K with the Commission which disclosed, among other things, a worldwide concentrate inventory reduction planned to occur during the first half of the year 2000. The inventory reduction was to be accomplished by Coca-Cola’s operating divisions, specifically including CCJC, ceasing to sell concentrate to bottlers until bottlers naturally reduced their inventory to purported “optimum” levels. The impact on Coca-Cola’s earnings for the first and second quarter of 2000 was estimated to be between $0.11 and $0.13 per share.

A crucial issue in both these cases is that there was no accounting misstatement.  The enforcement issue is about the MD&A known-trend disclosure requirement in S-K Item 303(a)(3)(ii):

 Describe 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. 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.

 The probabilistic threshold in this disclosure, reasonably expects, requires a very complex judgment.  The SEC’s 1989 MD&A Release, FR 36, provides this decision model for this judgment:

Where a trend, demand, commitment, event or uncertainty is known, management must make two assessments:

(1) Is the known trend, demand, commitment, event or uncertainty likely to come to fruition? If management determines that it is not reasonably likely to occur, no disclosure is required.

 (2) If management cannot make that determination, it must evaluate objectively the consequences of the known trend, demand, commitment, event or uncertainty, on the assumption that it will come to fruition. Disclosure is then required unless management determines that a material effect on the registrant’s financial condition or results of operations is not reasonably likely to occur

As you can see, this test creates a probability threshold that is essentially below 50%.

The HP case also focuses on disclosure controls and procedures since HP’s disclosure controls failed to detect that the known-trend information was not appropriately disclosed.  More about that in the next post.

All of this brings us back to one of the “Golden Rules” of MD&A – No surprise stock drops!

As always, your thoughts and comments are welcome!

 

An SEC Comment Challenge: Find the Non-GAAP Measure Issue – Post Four

Reporting, SEC Hot Topic

In this series of posts we are focusing on non-GAAP measure problems and related SEC comments.  As the first, second and third posts in this series did, this post gives you an opportunity to see if you can spot the issue, and then provides the background and SEC guidance behind the issue.

As a brief reminder, the SEC’s guidance about the use of non-GAAP measures is primarily in three places:

  1. Regulation G for non-GAAP measures used anywhere,
  2. S-K Item 10(e), for non-GAAP measures in filed documents, and
  3. Compliance and Disclosure Interpretations.

Just like the first, second and third posts in this series, you can read the excerpt of the release behind the comment and try to spot the issue.  If you prefer, you can read straight through to the comment and explanation that follow.

These excerpts are from Papa John’s International, Inc’s Form 10-K for the fiscal year ended December 29, 2019.  You may recognize this Company as we highlighted their 10-K in our third post in this series.  Can you spot the non-GAAP issue?  As you review this information, focus your thoughts on the “special charges,” and within the detailed list of “special charges” look at the “Royalty relief” line item.

To begin, here is one of the non-GAAP measures presented by Papa John’s:

PapaJohn One

Papa John’s also provided this detail about the special charges:

PapaJohn Two

As you review the list of non-GAAP adjustments, letter (a) about royalty relief to franchisees seems like a typical kind of adjustment.  But the issue here is more complex, as royalty income is a significant source of revenue for Papa John’s.

This is the comment the SEC issued about this non-GAAP adjustment:

Form 10-K for the Fiscal Year Ended December 29, 2019

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations Items Impacting Comparability; Non-GAAP Measures, page 40

  1. Please tell us the consideration you gave to Question 100.04 of the Non-GAAP Financial Measures Compliance and Disclosure Interpretations in adjusting your non-GAAP measures to add revenues you did not receive due to royalty relief.

The C&DI referenced, Question 100.04 makes a very important point:

Question 100.04

Question: A registrant presents a non-GAAP performance measure that is adjusted to accelerate revenue recognized ratably over time in accordance with GAAP as though it earned revenue when customers are billed. Can this measure be presented in documents filed or furnished with the Commission or provided elsewhere, such as on company websites.

Answer: No. Non-GAAP measures that substitute individually tailored revenue recognition and measurement methods for those of GAAP could violate Rule 100(b) of Regulation G. Other measures that use individually tailored recognition and measurement methods for financial statement line items other than revenue may also violate Rule 100(b) of Regulation G.   [May 17, 2016]

This is Papa John’s first of two responses to this comment:

We did consider the guidance in Question 100.04 in connection with our inclusion in “Special charges” of royalty reductions that are above and beyond the level of franchise support the Company would incur in the ordinary course of its business. We also evaluated Rule 100(b) of Regulation G, which states that a registrant may not make public a non-GAAP financial measure that, taken together with the information accompanying the measure, is misleading.   We believe the adjustment reflects the add-back of contractually due and waived franchise royalties in our financial statements rather than the tailoring of the recognition or measurement principles under GAAP.

 Papa John’s franchisees are contractually required to pay a 5% royalty on sales. As part of its voluntary program to provide temporary financial assistance for traditional North America franchisees in response to declining North America sales discussed above, the Company extended financial assistance to its traditional North America franchisees in the form of a reduction in the contractually due royalties beginning in the third quarter of 2018, for a limited time period. The decline in sales was due to the negative publicity and consumer sentiment surrounding the Company’s brand as noted in Comment 1 (Note:  See the third post in this series for this information) above. Sales remained negative into 2019, which led the Company to formalize a temporary relief package, publicly announced in July 2019, to provide its franchisees with certainty regarding the availability and schedule of the relief which will continue through the third quarter of 2020. The total royalty relief included in “Special charges” was $19.1 million and $15.4 million for the years ended December 29, 2019 and December 30, 2018, respectively. The scheduled royalty reductions presented in “Special charges” represent the difference between the usual 5.0% contractual royalty rate applicable to North America franchise sales and the reduced royalty rate under our franchisee assistance program ranging from 0.5% to 2.0% of franchise restaurant sales varying by quarter. Additionally, North America franchisees that met certain defined service measures also received a 0.25% reduction in the royalty rate in the third and fourth quarters of 2019.

We believe that presenting these royalty reductions as “Special charges” is consistent with the objectives of our non-GAAP presentation, which is to show the financial performance of our ongoing operations excluding the temporary impact of the Company’s initiative of providing short-term support and financial assistance to the North America franchise system in response to the severe decline in North America sales. The Company did not receive the revenue foregone from its royalty relief program, as it is waiving a contractual right to recognize the revenue earned. We excluded the temporary waiver of this contractual right together with the marketing investments discussed in our response to Comment 1 for internal comparison purposes when evaluating the Company’s underlying operating performance and when analyzing trends. When presented next to the most directly comparable GAAP measure, we believe we are presenting a supplemental measure that shows the impact of our discretionary, non-contractual franchise support and relief program to our operating results. Accordingly, the Company respectfully advises the staff that we have considered the prescribed guidance and we believe that the presentation of royalty relief from our non-GAAP financial results, taken together with the information accompanying the measure, does not cause those results to be misleading.

To help further clarify the nature of the royalty reductions, beginning in our Form 10-Q for the quarter ended March 29, 2020, we will revise the footnoted description of the royalty relief in our “Special charges” table as follows: “Represents financial assistance provided to the North America system in the form of temporary royalty reductions that are above and beyond the level of franchise support the Company would incur in the ordinary course of its business. This temporary financial assistance provides our North America franchisees with certainty regarding the availability and schedule of the temporary relief through the third quarter of 2020. Under the formal relief program, the franchisees pay royalties below the 5.0% contractual rate on franchise restaurant sales with varying rates by quarter as specified under the terms of the program.”

After this first response the SEC and Papa John’s had further phone discussions about this issue.  Interestingly, the SEC did not issue a second comment letter.  While we cannot know the content of these discussions, they were clearly substantive.  They resulted in this final answer by Papa John’s:

Response: As discussed during the phone conversation between the Staff and the Company on April 24, 2020, beginning with the Company’s earnings release for the first quarter of fiscal 2020, the Company will no longer present adjusted (non-GAAP) financial results adjusted to add revenues we did not receive due to royalty relief.

As always, your thoughts and comments are welcome!

An SEC Comment Challenge: Find the Non-GAAP Measure Issue – Post Three

Comment of the Week, Reporting

In this series of posts we are focusing on non-GAAP measure problems and related SEC comments.  As the first and second posts in this series did, this post gives you an opportunity to see if you can spot the issue, and then provides the background and SEC guidance behind the issue.

As a brief reminder, the SEC’s guidance about the use of non-GAAP measures is primarily in three places:

Regulation G for non-GAAP measures used anywhere,

S-K Item 10(e), for non-GAAP measures in filed documents, and

The related Compliance and Disclosure Interpretations.

 Just like the first and second posts in this series, you can read the excerpt of the release behind the comment and try to spot the issue.  If you prefer, you can read straight through to the comment and explanation that follow.

These excerpts are from Papa John’s International, Inc’s Form 10-K for the fiscal year ended December 29, 2019.  Can you spot the non-GAAP issue?  As you review this information, focus your thoughts on the “special charges” and in particular the “Marketing fund investments.”

To begin, here is one of the non-GAAP measures presented by Papa John’s:

PapaJohn One

Papa John’s also provided this detail about the special charges:

PapaJohn Two

As you review the list of non-GAAP adjustments, letter (b) regarding marketing support to franchisees seems like it is a cash expense.

This is the comment the SEC issued about this non-GAAP adjustment:

Form 10-K for the Fiscal Year Ended December 29, 2019

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations Items Impacting Comparability; Non-GAAP Measures, page 40

  1. Please tell us the consideration you gave to Question 100.01 of the Non-GAAP Financial Measures Compliance and Disclosure Interpretations in adjusting your non-GAAP measures to remove marketing fund investments made by you.

The C&DI referenced, Question 100.01 makes a very important point:

Question 100.01

Question: Can certain adjustments, although not explicitly prohibited, result in a non-GAAP measure that is misleading?

Answer: Yes. Certain adjustments may violate Rule 100(b) of Regulation G because they cause the presentation of the non-GAAP measure to be misleading. For example, presenting a performance measure that excludes normal, recurring, cash operating expenses necessary to operate a registrant’s business could be misleading. [May 17, 2016]

This is Papa John’s first of two responses to this comment:

We did consider the guidance in Question 100.01 of the Non-GAAP Financial Measures Compliance and Disclosure Interpretations in our presentation of our adjusted (non-GAAP) financial results excluding marketing fund investments identified as “Special charges.” The marketing fund investments included in “Special charges” of $27.5 million and $10.0 million for the years ended December 29, 2019 and December 30, 2018, respectively, represent discretionary, non-contractual marketing fund investments to support national media initiatives. Domestic Company-owned and franchised Papa John’s restaurants are required to contribute a certain minimum percentage of their sales (currently 5.0% of sales) to the Papa John’s Marketing Fund, our national marketing fund, which are not included as part of the “Special charges.” The national marketing fund is responsible for developing and conducting marketing and advertising for the domestic Papa John’s system. Beginning in the fourth quarter of 2018, the Company began making significant discretionary, non-contractual marketing fund investments to supplement the contractual Company-owned and franchised restaurant-level system contributions.  These discretionary, non-contractual marketing fund investments were part of the Company’s previously announced program of increased support and financial assistance to the North America franchise system in response to the severe decline in North America sales. The decline in North America sales followed extensive negative publicity and consumer sentiment as a result of statements by the Company’s founder and former spokesman in late 2017 and July 2018. The discretionary, non-contractual marketing fund investments were made as a response to these extraordinary adverse events to defend and repair the brand’s reputation and were not made in the ordinary course of business.

Question 100.01 notes that a non-GAAP financial measure may be misleading if it excludes “normal, recurring, cash operating expenses necessary to operate a registrant’s business.” The Company does not consider the incremental marketing fund investments to be normal, recurring, cash operating expenses necessary to operate the Company’s business. Furthermore, as stated in the Company’s Form 10-K for the fiscal year ended December 29, 2019, such investments are of a limited duration and are only “expected to continue through the third quarter of 2020”, which further supports the conclusion that the charges are not of a recurring nature. As a result, we do not consider these investments to be representative of our underlying operating performance and thus believe the exclusion in our non-GAAP financial results provides investors with important additional information regarding our underlying operating results and is important for purposes of comparisons to prior year results.  In addition, management uses the non-GAAP financial results to evaluate the Company’s underlying operating performance and to analyze trends. Accordingly, we respectfully advise the staff that we considered the guidance in Question 100.01 and believe that the exclusion of the discretionary marketing fund investments from our non-GAAP financial results and the related presentation and disclosure does not cause those results to be misleading.

To help further clarify the nature of these charges, beginning in our Form 10-Q for the quarter ended March 29, 2020, we will revise the footnoted description of these marketing fund investments in our “Special charges” table as follows: “Represents incremental discretionary marketing fund investments in excess of contractual Company-owned restaurant-level contributions, which were made as part of our previously announced temporary support package to our franchisees.”

After this first response the SEC and Papa John’s had further phone discussions about this issue.  Interestingly, the SEC did not issue a second comment letter.  While we cannot know the content of these discussions, they were clearly substantive.  They resulted in this final answer by Papa John’s:

Response: As discussed during the phone conversation between the Staff and the Company on April 24, 2020, beginning with the Company’s earnings release for the first quarter of fiscal 2020, the Company will no longer present adjusted (non-GAAP) financial results excluding the marketing fund investments made by the Company.

As always, your thoughts and comments are welcome!

Our New, Virtual, Interactive Form 10-K Disclosure Workshop

Reporting

Our new SEC 10-K Disclosure Best Practices Workshop is a perfect way to help you prepare for this year-end’s unique and complex reporting challenges.  Featured topics include COVID-19 related disclosures, the SEC’s modernization of business, risk factor and legal proceedings disclosures, rules and practice issues surrounding the use of non-GAAP measures and SEC “hot-button” comment areas in the current environment.  Best practice examples from different industries and companies are discussed in each section to illustrate effective disclosure practices.

Featuring open discussion in an interactive, Zoom-based format, this new Workshop will be presented over two afternoons (half days) on October 5_6, 2020, with a start time of 1 p.m. EDT on both days.

The Workshop includes online access to PLI’s SEC Reporting Handbook.

 As always, your thoughts and comments are welcome.

The SEC’s Updated RegFlex Agenda

Reporting

As we blogged about here, SEC Chairman Clayton has worked to make the SEC’s Regulatory Flexibility Act agenda a document that reflects the Commission’s short-term plans as opposed to a kind of regulatory “wish list.”  The latest update (known as the Spring version) was published at the end of June and provides a view of how the Commission intends to move forward with many significant initiatives despite the disruption of COVID-19.  Among the projects on the short-term agenda are:

  • Modernization and Simplification of Disclosures of Regulation S-K Items 101, 103, and 105
  • Modernization and Simplification of Disclosures Regarding MD&A, Selected Financial Data and Supplementary Financial Information
  • Universal Proxy
  • Amendments to Exemptions From the Proxy Rules for Proxy Voting Advice
  • Harmonization of Exempt Offerings
  • Update of Statistical Disclosures for Bank and Savings and Loan Registrants
  • Disclosure of Payments by Resource Extraction Issuers

You can review all the proposed rule and final rule stage projects on the short-term agenda here.  As you will see the above projects are only part of what the Commission intends to accomplish in the short term.

You can also view the long-term agenda here.

As always, your thoughts and comments are welcome!