On February 3, 2023, the SEC announced a settled enforcement action against Activision Blizzard, Inc. that involved two issues:

• • Provisions in separation agreements that violated whistleblower protection rules, and
  • Ineffective disclosure controls and procedures for human capital resources disclosures.

Activision agreed to pay a $35 million fine and entered into a cease and desist order.

Separation agreement and employment contract provisions that try and limit whistleblowing are not a new enforcement topic.  Over the years the SEC has brought cases against a number of companies, including Brinks, KBR, Blackrock and Homestreet, for provisions in agreements that attempt to limit whistleblowing.

Section 21F of the Dodd-Frank Act, “Whistleblower Incentives and Protection”, includes provisions to protect whistleblowers.  Pursuant to this section of the Act, the SEC adopted Rule 21F-17, which includes this language:

 (a) No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.

Activision Blizzard routinely included provisions in separation agreements that required departed employees to notify Activision Blizzard if the SEC sent them a request for information, in violation of these rules.

The second issue in this case, inadequate disclosure controls and procedures, relates to Activision Blizzard not having processes and controls to accumulate and communicate information concerning employee complaints about workforce misconduct.  The company was aware that its ability to attract, retain, and motivate employees was a particularly important risk in its business.  It included this language as a risk factor heading in 10-Ks for 2017, 2018, 2019 and 2020:

“If we do not continue to attract, retain, and motivate skilled personnel, we will be unable to effectively conduct our business.”

According to the SEC’s Order, the company:

“lacked controls and procedures designed to ensure that it captured and assessed – from a disclosure perspective – certain information related to these risk factors.”

The SEC specifically focused on information about workplace misconduct.  As a result, according to the SEC’s Press Release, the company

“lacked sufficient information to understand the volume and substance of employee complaints about workplace misconduct and did not assess whether any material issues existed that would have required public disclosure.”

You can read more details in the SEC’s Order.

As always, your thoughts and comments are welcome!

As we discussed in this earlier post, the SEC’s October 2022 “Listing Standards for Recovery of Erroneously Awarded Compensation” rules will require companies whose securities are listed on national securities exchanges to develop and adopt  policies for the recovery or “clawback” of incentive compensation that has been “erroneously awarded” when a company restates its financial statements. The Dodd-Frank Act required the SEC to implement these requirements through listing standards that national securities exchanges will soon be required to adopt.   

Based on the final rules’ January 27, 2023, effective date, the timetable for implementation of the clawback rules, including the adoption of a clawback policy by exchange-listed companies, will be:

• • February 26, 2023 – last day by which national securities exchanges are to file proposed clawback listing standards;
  • November 28, 2023 – last day by which clawback listing standards must become effective; and
  • January 27, 2024 – last day by which listed companies must adopt and comply with an appropriate clawback policy.

Of course, if the exchange listing standards become effective earlier than the November 28, 2023 deadline, companies will have to adopt policies before January 27, 2024.

This earlier post discusses the implementation process in more detail and includes a policy template to help companies get a head start in this process.

This current post reviews the rules’ new disclosures:

• • First, if during or after the last completed fiscal year, a company is required to prepare an accounting restatement that requires recovery of “erroneously awarded” compensation, or, as of the last completed fiscal year, there was an outstanding balance of “erroneously awarded compensation” still to be recovered from a prior restatement, the required disclosures include:
  • The date of the restatement;
  • The dollar amount of compensation required to be clawed back;
  • Details of the calculation of compensation subject to clawback;
  • If the financial reporting measure in a compensation plan subject to clawback related to a stock price or total shareholder return, details of the estimates used in determining clawback amounts and the methodology used for these estimates;
  • The dollar amount of any “erroneously awarded compensation” outstanding at the end of the last completed fiscal year; and
  • If the dollar amount of compensation subject to clawback has not yet been determined, disclose this information, including an explanation of why the amount could not be determined. The required information should then be disclosed in the next report requiring compensation disclosure pursuant to Item 402 of Regulation S-K.
  • Second, when a company determines, based on the limited practicability exceptions in the rules, that clawback would be impracticable, it must disclose the amount of the compensation recovery not pursued for each executive officer and all executive officers as a group, along with a description of why recovery was not pursued.
  • Third, disclosure must include amounts that, as of the end of the most recently completed fiscal year, have been outstanding for 180 days or more from any current or former named executive officer.
  • Fourth, if a company has a restatement and concludes that clawback of compensation is not required for that restatement, it must disclose how it arrived at that conclusion.

In addition to the disclosures described above, each listed company must file its clawback policy as Exhibit 97 to Form 10-K.  These new disclosures are to be tagged with Inline XBRL and will also be required in Forms 20-F and 40-F.  Note that this will not be required until after the company is required to adopt a clawback policy, which could be as late as January 27, 2024.

Furthermore, the rules add two new checkboxes to the cover pages of Form 10-K, Form 20-F and Form 40-F.  These forms were updated on January 27, 2023, the effective date of the new rules.  Below is the revised section of the cover page of Form 10-K from the SEC’s webpage:

Also, on January 31, 2023, the staff issued several new C&DIs addressing these new disclosures.  One of the C&DIs addresses the form amendments:

Question 104.19

Question: The form amendments adding check boxes to the cover page of Form 10-K, Form 20-F, and Form 40-F indicating whether the form includes the correction of an error in previously issued financial statements and a related recovery analysis are effective January 27, 2023. However, the listing standards are not required to be effective until November 28, 2023 and issuers subject to such listing standards will not be required to adopt a recovery policy for 60 days following the date on which the applicable listing standards become effective. Will issuers be required to mark the check boxes in 2023 before an issuer is required to adopt a recovery policy and comply with the applicable listing standards?

Answer: In the adopting release, the Commission indicated that it does not expect compliance with the disclosure requirements until issuers are required to have a recovery policy under the applicable exchange listing standard. While the check boxes and other disclosure requirements will be in the rules and forms in 2023, we do not expect issuers to provide such disclosure until they are required to have a recovery policy under the applicable listing standard. [January 31, 2023]

Because disclosure is not required until after a listed company is required to adopt a clawback policy, whether to add the new checkboxes on the cover page of your annual report is essentially an “it depends” decision.  We believe that the better practice is to include the new checkboxes as they are now on the official form.  Some companies, however, may decide not to include them since the underlying disclosure requirement is not effective until after the company is required to adopt a clawback policy.  Assuming that the EDGAR system allowed such a submission, that would, in essence, make both answers allowable.

Non-listed companies have similar considerations about inclusion of the checkboxes on the form cover but they will not have to check either of the boxes. The first box would not apply – they do not have “Section 12(b)” (i.e., listed) securities.  Then, even if they had a restatement, the second box would not apply because it would not be “required.”   Should non-listed companies not have a clawback policy – we’re not saying that adoption of a clawback policy might not be a wise move as a matter of good governance practices.  But even if they do – these rules will not apply to them.

As always, your thoughts and comments are welcome!

On February 14, 2023, SEC Chief Accountant Paul Munter again addressed the FASB’s standard-setting process in a Statement titled “Accounting Standard Setting in a Rapidly Evolving Business Environment: A Focus on the Timely Delivery of Investor Priorities.”  This Statement continues discussion of several issues mentioned in Mr. Munter’s February 22, 2022, “Statement on the FASB’s Agenda Consultation: Engagement with Investors and Other Stakeholders Vital to Development of High Quality Accounting Standards.”

In the 2022 Statement, Mr. Munter discussed several aspects of the FASB’s agenda consultation project, particularly the importance of investor and other stakeholder input.  He also highlighted the importance to investors of several standard-setting areas including disaggregating financial statement information, accounting for digital assets, and climate-related transactions and disclosures.

Mr. Munter’s 2023 Statement continues this focus on the FASB’s standard-setting process.  In the introduction to his Statement, he acknowledges that the FASB’s standard-setting project agenda has been reprioritized, “largely to focus on investor and other stakeholder priorities identified through the agenda consultation process.”  He also mentions the Board’s focus on various projects, including:

Disaggregation – Income Statement Expenses;

Accounting for and Disclosure of Crypto Assets;

Improvements to Income Tax Disclosures; and

Segment Reporting.

He then writes:

“Completion of these and other reprioritized projects in a timely manner is critical to the quality of accounting standards and the resulting quality of financial reporting. As FASB standard-setting projects move forward, we believe there are continued opportunities for improvement to the standard-setting process, and that constructive collaboration by preparers, investors, auditors, and other stakeholders, with a focus on timely solutions that meet investor financial reporting needs, is key to the development of high-quality accounting standards for the benefit of the financial reporting system, investors, and issuers.”

The next section in the Statement, titled “Enhancing the Accounting Standard-Setting Process,” includes this observation:

“The rapid pace of change in today’s business and economic environment requires a thoughtful, yet timely, response by standard setters to improve the quality of financial accounting and reporting standards, thereby enhancing the usefulness of the financial information provided to investors. The FASB’s recent agenda reprioritization, however, is just one step in addressing such needs in a rapidly changing environment. Consistent with many projects on its reprioritized agenda, the FASB should continue to scope its standard-setting projects to allow for achievable standards updates to be finalized in the near term on topics that are of the highest priority to investors. The FASB, with the support of its stakeholders, should act with a renewed sense of focus and urgency in order to enhance its standard-setting process and produce timely, meaningful improvements to its standards.”

 In this section Mr. Munter also states:

“However, more work remains to be done—including improved collaboration across the FAF and the FASB regarding additional process improvements needed to accomplish more timely standard setting in response to investor needs. To accomplish its mission of establishing and improving standards that foster decision-useful financial reporting for investors, it is critically important that the FASB, and the FAF Trustees in their oversight role, continue to enhance its process to improve standard-setting efficiency, effectiveness, and transparency.”

The Statement then discusses projects which are top priorities for investors and how the FASB’s agenda “now better reflects a focus on investor and other stakeholder priorities in meaningful and achievable standard-setting projects.”  Mr. Munter then notes:

“However, the proof is in the doing. The FASB should now execute on those stated priorities in an effective, efficient manner to produce timely, high-quality standards updates. As noted above, this will require the FASB to carefully design and execute on the scope of its projects. It is also of critical importance that preparers, auditors, and other stakeholders focus on providing collaborative feedback to the FASB on cost-effective solutions that meet investors’ needs for improved financial information.”

As always, your thoughts and comments are welcome!

On February 10, 2023, CorpFin issued 15 Compliance and Disclosure Interpretations (C&DIs) to address issues arising in preparing the Pay Versus Performance disclosures adopted in August 2022.  Given that the new disclosures are required in proxy and information statements that include Regulation S-K Item 402 disclosures for fiscal years ending on or after December 16, 2022, the C&DIs are very timely!

In addition to other topics, the new C&DIs

• • Answer questions about the computation of tabular information required in pay versus performance disclosures;
  • Clarify that pay versus performance information is not required in Form 10-K;
  • Provide guidance for disclosing details of the adjustments to arrive at compensation actually paid; and
  • Discuss considerations in selecting financial performance measures.

As a reminder, in this post, you can find a template for preparation of pay versus performance disclosures from Gary Brown of Nelson Mullins.

As always, your thoughts and comments are welcome!

It its 2020 MD&A Modernization Rule, the SEC eliminated this separate paragraph addressing the impact of inflation:

(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.

This disclosure dated back to earlier periods when inflation had been a material issue for many companies.  In 2020, when the rule was adopted, inflation had not been a significant issue for most companies since the 1980s.  The rationale for this change in the Final Rule is based on the assumption that inflation may not be material to “most registrants”:

The purpose of the elimination is to streamline Item 303 by eliminating the specific reference to these topics, which may not be material to most registrants. This change is consistent with the principles-based disclosure framework of Item 303

That said, the principles-based nature of MD&A means that if inflation is a material issue for a company in any period, it should be addressed in MD&A.  This principle is clearly articulated in the Final Rule:

We do not believe that these changes will result in a loss of material information for market participants.   Registrants will still be required to discuss in their MD&A the impact of inflation and changing prices, if material, as is currently required.

In the current environment, the staff has been reminding companies of this requirement in the comment letter process.  Here are two examples.

Results of Operations, page 42

1. 2. Please expand your disclosure to address any known trends, events or uncertainties that have had, or that are reasonably likely to have, a material impact on your cash flows, liquidity, capital resources, cash requirements, financial position, or results of operations, as may be attributable to the inflation risk that you discuss on page 19.

Please clarify the extent to which your revenues and cost of product sales have been or are expected to be impacted by inflation, and discuss any plans that you have to respond to or counter any adverse circumstances.

Guess?, Inc., August 8, 2022

Management’s Discussion and Analysis of Financial Condition and Results of Operations, page 44

1. 1. We note you disclosed that your operating results for 2022 were negatively affected by inflationary cost pressures. Please revise to address the following:

• • • • Disclose any known trends or uncertainties that have had or are reasonably likely to have a material impact on your cash flows, liquidity, capital resources, cash requirements, financial position, or results of operations arising from, related to, or caused by the inflation;
      • Expand to identify the principal factors contributing to the inflationary pressures you have experienced and clarify the resulting impact to the company; and
      • Expand your disclosure to identify specific actions planned or taken, if any, to mitigate inflationary pressures.

FedEx Corporation, September 1, 2022

As always, your thoughts and comments are welcome!

As we discussed in a prior post, three parts of the SEC’s 2020 MD&A modernization have become focus areas in the comment process:

• • Critical accounting estimate disclosures
  • Quantitative and qualitative disclosures about material changes
  • Meaningfully addressing liquidity and capital resources

We also explored how one of the reasons behind this increase in MD&A comments could be that companies are reluctant to change MD&A, even when the change is to comply with a new rule or to improve MD&A!

In an earlier post we explored a comment letter exchange focused on critical accounting estimate disclosures.

Today’s post presents an example comment and company response for the second of these three areas, providing quantitative and qualitative disclosures about material financial statement changes.

The Regulation S-K Item 303 guidance for this disclosure is very direct:

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.

Companies frequently describe qualitative factors behind changes without quantitative information to explain their relative magnitude.  While this has been a frequent comment area before the 2020 change, it has become the source of even more comments now that there is an objective requirement in S-K Item 303.  This is clearly an easily avoided comment.

Here is an example disclosure from a company’s Form 10-K that generated a comment to provide both quantitative and qualitative information.

Voyage expenses

To the extent that we employ our vessels on voyage charters, we incur expenses that include but are not limited to bunkers, port charges and canal tolls, as these expenses are borne by the vessel owner on voyage charters. Bunkers, port charges, and canal toll expenses primarily increase in periods during which more vessels are employed on voyage charters.

Voyage expenses for the year ended December 31, 2021 were $104.6 million, compared with $89.5 million for the year ended December 31, 2020. Voyage expenses have primarily increased due to an increase in bunker consumption expense, an increase in broker commission expense and an increase in port expenses.

The SEC’s comment is simple and direct:

Results of Operations for Years Ended December 31, 2021 and 2020, page 78

1. 1. We note that you list multiple factors that contribute to changes in your results. For example, you disclose several factors contributing to the increase in voyage expense. Revise your disclosure to quantify each material factor that contributes to a change in your revenues or expenses. Refer to Item 303(b) of Regulation S-K.

The company’s response is also simple and direct, as well as detailed:

The Company acknowledges the Staff’s comment and undertakes in future filings to include additional information to quantify material factors that contribute to a change in our revenues or expenses. To illustrate the Company’s intention with respect to such disclosure, we have provided below the relevant portions of the 2021 Form 10-K, revised to include such additional information (with underlined and strikethrough text indicating additions and deletions, respectively):

Voyage expenses

To the extent that we employ our vessels on voyage charters, we incur expenses that include but are not limited to bunkers, port charges and canal tolls, as these expenses are borne by the vessel owner on voyage charters. Bunkers, port charges, and canal toll expenses primarily increase in periods during which more vessels are employed on voyage charters.

Voyage expenses for the year ended December 31, 2021 were $104.6 million, compared with $89.5 million for the year ended December 31, 2020. Voyage expenses have primarily increased primarily due to an increase in bunker consumption expense of $8.0 million, which was driven by an increase in bunker fuel prices, an increase in broker commission expense of $4.6 million, which was driven by an increase in related revenues, and an increase in port expenses of $2.0 million, which was driven by an increase in the number of voyage days.

Our next post will explore the third of these frequent comment areas, liquidity and capital resources discussions.

As always, your thoughts and comments are welcome!