Our four Midyear SEC and FASB Forums are underway! This picture is from our Chicago Conference on May 28 and 29. In June the Forums will take place in New York and San Francisco. Check out the dates, agenda and speakers at:
http://www.pli.edu/Content/30th_Midyear_SEC_Reporting_FASB_Forum/_/N-1z12892Z4k?ID=231682
All the programs are chaired by Carol Stacey and bring you up to date with all important developments and current issues at the SEC, FASB and PCAOB.
As you likely know, when James Schnurr took the reigns of OCA Chair White asked him to address IFRS. She asked Mr. Schnurr to review the staff’s IFRS work to date and develop a recommendation about “what action, if any, the Commission should take regarding the further incorporation of IFRS into the U.S. capital markets”.
Mr. Schnurr discussed the progress of this review in a May speech. In his remarks he said:
“Some of the key themes we heard from our discussions were as follows:
There is virtually no support to have the SEC mandate IFRS for all registrants.
There is little support for the SEC to provide an option allowing domestic companies to prepare their financial statements under IFRS.
There is continued support for the objective of a single set of high–quality, globally accepted accounting standards.”
He also said he would work to finish his recommendation in the “near term”.
You can read the speech at:
www.sec.gov/news/speech/schnurr-remarks-before-the-2015-baruch-college-financial-reporti.html
As always, your thoughts and comments are appreciated!
Over the years S-K Item 201 has been amended, updated and added to on several occasions. As a result it has become a bit of a disclosure hodge-podge. It contains more than a few twists and turns, and we explored one of them in our last post about the performance graph from S-K item 201(e) that does not have to be in the Form 10-K.
This post is about another twisty disclosure rule, and is also a reminder that the Compliance and Disclosure Interpretations from CorpFin can be really helpful. You can find them all at:
www.sec.gov/divisions/corpfin/cfguidance.shtml#
This S-K Item 201 twist surrounds the equity compensation table that is required by S-K 201(d). At first reading, you would not think there is even an issue. The instructions to Form 10-K seem clear:
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
(a) Furnish the information required by Item 201 of Regulation S-K (17 CFR 229.201) and …(rest of the instruction omitted as it is not relevant).
With this straightforward instruction it would seem everything required by S-K Item 201 should be included in Item 5 of the 10-K, including S-K 201(d):
(d) Securities authorized for issuance under equity compensation plans
(1) In the following tabular format, provide the information specified in paragraph (d)(2) of this Item as of the end of the most recently completed fiscal year with respect to compensation plans (including individual compensation arrangements) under which equity securities of the registrant are authorized for issuance, aggregated as follows:
(i) All compensation plans previously approved by security holders; and
(ii) All compensation plans not previously approved by security holders.
However, this seemingly straightforward issue gets disrupted when you get to Item 12 in the Form 10-K instructions which says:
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
Furnish the information required by Item 201(d) of Regulation S-K (§ 229.201(d) of this chapter) and Item 403 of Regulation S-K (§ 229.403 of this chapter).
So, where is the appropriate place in the Form 10-K for this table? For a while many people read the instructions very literally and put the table in both Item 5 and Item 12! Eventually the common sense approach of the SEC, i.e. you don’t really need it twice, was clarified in this Compliance and Disclosure Interpretation:
Regulation S-K: Section 106. Item 201 — Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters
Question 106.01
Question: Is the Item 201(d) disclosure required in Part II of Form 10-K, given that Item 5 of Form 10-K indicates that the registrant is required to furnish the information required under Item 201, or should the Item 201(d) disclosure be included (or incorporated by reference) in Part III of Form 10-K given that Item 12 indicates that the registrant is required to furnish the information required under Item 201(d)?
Answer: The Item 201(d) disclosure should be included in Part III, Item 12 of Form 10-K. An issuer may rely on General Instruction G.3 to Form 10-K to incorporate by reference the Item 201(d) disclosure from its proxy statement or information statement, even if the issuer did not submit a compensation plan for security holder action at its annual meeting of security holders. See American Bar Association (Jan. 30, 2004). [Mar. 13, 2007]
This one is pretty picky, but always good to get the details right! It also shows one facet of the SEC staff’s interpretive process, as the CDI resulted from an interpretive request from the ABA, which is linked to Reg S-K’s CDI 106.1.
As always your thoughts and comments are welcome!
In our previous two posts dealing with the differences between the Form 10-K and the Annual Report to Shareholders (the ARS that accompanies the proxy), we delved into the differences between “filed” and “furnished” documents.
Here is another fairly subtle place that this “filed versus furnished” distinction comes into Form 10-K.
Regulation S-K Item 201(e) is the source of the requirement for the “performance graph” which does a five-year comparison of the return on a $100 investment in the company’s stock, a broad market index and an industry index. (The text of Item 201(e) is included below).
Here is an example of the graph from American Woodmark:
From this part of the Instructions to Item 5 of the Form 10-K it seems relatively straightforward that this graph should be in Item 5 of the 10-K:
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
(Note: The rest of the Item 5 instructions are omitted as they do not affect this issue)
However, if you persevere (that is stay awake!) trying to read the whole of S-K Item 201, including the instructions (always an important part of the items!) you will find Instruction 7 to Item 201(e):
The reason for this instruction goes back many years to when changes were made in the proxy rules and this graph was moved from the proxy statement to S-K Item 201.
And, as you read this instruction, you might be tempted to say “so what”! But the subtle and important issue is that the ARS is not a filed document!
So, if you put the graph in the Form 10-K, it is “filed” information, subject to 1934 Act liability provisions. However, if you put it only in the ARS, it is not subject to 1934 Act liability. While this might not be a major issue, it is still one to think about.
One path some companies use is to put the graph on the back page of a 10-K wrap, so it is not actually included in the 10-K itself.
Here is an example of a company, American Woodmark, that dealt with the issue by putting the graph in the 10-K wrap pages instead of the Form 10-K, in order to keep the graph from being filed. Check out page 12 of their ARS:
Yes, this one is pretty subtle, even picky, but one to think about.
As always, your comments and thoughts are welcome!
Here is the main part text of S-K Item 201(e). You can see the whole Item at:
S-K Item 201
(e) Performance graph. (1) Provide a line graph comparing the yearly percentage change in the registrant’s cumulative total shareholder return on a class of common stock registered under section 12 of the Exchange Act (as measured by dividing the sum of the cumulative amount of dividends for the measurement period, assuming dividend reinvestment, and the difference between the registrant’s share price at the end and the beginning of the measurement period; by the share price at the beginning of the measurement period) with:
(i) The cumulative total return of a broad equity market index assuming reinvestment of dividends, that includes companies whose equity securities are traded on the same exchange or are of comparable market capitalization; provided, however, that if the registrant is a company within the Standard & Poor’s 500 Stock Index, the registrant must use that index; and
(ii) The cumulative total return, assuming reinvestment of dividends, of:
(A) A published industry or line-of-business index;
(B) Peer issuer(s) selected in good faith. If the registrant does not select its peer issuer(s) on an industry or line-of-business basis, the registrant shall disclose the basis for its selection; or
(C) Issuer(s) with similar market capitalization(s), but only if the registrant does not use a published industry or line-of-business index and does not believe it can reasonably identify a peer group. If the registrant uses this alternative, the graph shall be accompanied by a statement of the reasons for this selection.
For years we have been watching the FASB/IASB project on lease accounting. And many of us wonder whether or not this project will ever finish. Well, checkout what the FASB is saying about their meeting this Wednesday, May 13. Yes, they are working on the project, working on it carefully and diligently and are actually in the process of drafting a final standard!
Wednesday May 13. 2015:
FASB Board Meeting, 9:00 a.m. EDT
They have said they hope to issue the final standard before the end of this year!
You can learn more at:
www.fasb.org/jsp/FASB/Page/SectionPage&cid=1218220079452
As always, your thoughts and comments are welcome and appreciated!
For the 30th straight year our “Midyear SEC Reporting & FASB Forums” are being presented during May and June in Dallas, Chicago, New York, and San Francisco. These programs are always the best way to keep up-to-date with what is going on at the SEC and the FASB. You can see the detailed agenda and list of speakers and learn more at:
www.pli.edu/Content/30th_Midyear_SEC_Reporting_FASB_Forum/_/N-1z12892Z4k?ID=231680
Past participants are eligible for a discount. Please contact customer service at (888) 212-2010 or Secinstitute@pli.edu.
As always, your thoughts a comments are appreciated!
In our last post we explored the difference between the Annual Report to Shareholders (ARS) and the Form 10-K. The ARS, required by the proxy rules, is an example of a document that is “furnished” to shareholders and not actually “filed” with the SEC.
Just what does this mean?
Filed versus furnished is essentially a legal distinction. It does not impact how information appears on the EDGAR system (as they look the same) or other practical filing issues (as they are filed in EDGAR the same way). For example, an Item 2.02 Form 8-K is a “furnished” document, but an Item 2.01 Form 8-K is a “filed” document. To learn what is going on with this distinction, let’s explore:
Filed
When a document is “filed” it is formally “filed” with the SEC to meet the disclosure requirements under the laws the SEC administers, principally the 1933 and 1934 Acts. This means a “filed” document is subject to the liability provisions of the Acts, and is the principal difference between filed versus furnished.
Furnished
When a document is furnished, generally to shareholders, it is not actually filed with the SEC under one of the Acts, (even though it may be “filed” in the EDGAR system) so it is not subject to the liability provisions of the Acts.
This liability difference can be a substantial issue. For example, it is far easier to establish scienter in a 34 Act fraud case then in a non-34 Act fraud case. Generally in a non-34 Act action, to establish scienter it must be shown that the accused deliberately set out to cause harm. In a 34 Act action, gross negligence or reckless disregard can establish scienter, a much lower level of proof.
Another difference – if something is furnished rather than filed, it cannot be incorporated by reference into later filings. In the shelf registration process this is very important as furnished documents are not incorporated by reference into the S-3 on the shelf, and hence do not expose the company to the strict liability standards of the 33 Act! And, if you do later incorporate a furnished document into a filed document, it loses its furnished status, usually not a good thing!
So, how do you tell if something is filed or furnished? When they appear on the EDGAR system they look exactly the same! As discussed earlier, it is really a legal distinction, so you go back to the legal sources, in particular, the instructions to the forms.
Here is an excerpt from the Form 8-K instructions:
So, this legal distinction is actually spelled out in the instructions.
As a concluding thought, the most commonly encountered furnished documents are:
The Annual Report to Shareholders
Form 8-K Item 2.02
Form 8-K Item 7.01
There are others, so when in doubt, consult the instructions!
As a preview for our next topic in this discussion, check out the furnished versus filed status of the performance graph required by Regulation S-K Item 201(e). You may find that a surprise awaits!
In sort of a lighthearted way this week’s Tip is a “versus” tip. With big boxing matches coming up next week, or perhaps just remembering old movies with aliens and monsters, the issue of how the Form 10-K works versus how the Annual Report to Shareholders (ARS) works seems appropriate.
This question frequently comes up in our workshops, and many folks don’t know whether or not the ARS is actually required or where to find the ARS requirements. The ARS is actually a very distinct and separate document from the Form 10-K.
The Form 10-K is the Annual Report to the SEC. It is required by the rules of the SEC and is filed with the SEC. As such, it is not a document furnished directly to shareholders, although they clearly have an opportunity to use the information as it is publicly accessible.
The ARS is actually required by the proxy rules. Rule 14a-3, which deals with information that must be furnished to shareholders in the proxy solicitation process says:
“(b) If the solicitation is made on behalf of the registrant, other than an investment company registered under the Investment Company Act of 1940, and relates to an annual (or special meeting in lieu of the annual) meeting of security holders, or written consent in lieu of such meeting, at which directors are to be elected, each proxy statement furnished pursuant to paragraph (a) of this section shall be accompanied or preceded by an annual report to security holders …….”
When a company is having its annual meeting and will elect directors at this meeting, it must furnish each shareholder with the proxy statement containing information about the election and officers and directors, and also must furnish each shareholder the ARS.
The next logical question is what must be included in the ARS? Rule 14a-3 enumerates the requirements and they include, among lots of other information:
Financial statements
MD&A
Selected financial data
“a brief description of the business done by the registrant and its subsidiaries during the most recent fiscal year which will, in the opinion of management, indicate the general nature and scope of the business of the registrant and its subsidiaries”
For a complete list of all the required information in the ARS check out Rule 14a-3. It is on page 890 of our 2015 SEC Handbook and you can also find it here:
Way back many years ago most companies did a separate ARS which was mailed in paper form to all shareholders along with the proxy statement. To see an example of this kind of traditional ARS check out this one from American Woodmark, a cabinet manufacturer:
The above link is to the ARS American Woodmark prepared for 2013, and it has wonderful photography and nicely typeset financial statements and MD&A. It is almost elegant in its presentation of information about the company. It is also a very expensive document to produce!
Because this kind of ARS is so expensive, many companies use a more cost effective ARS called the “10-K wrap”. This version of the ARS is actually a cover and perhaps a few pages of financial and company background “wrapped” around the Form 10-K. This approach works well because all the information required by rule 14a-3 that must be furnished to shareholders is in the Form 10-K.
American Woodmark switched to the 10-K wrap approach in 2014. You can find their 2014 ARS at:
It would be interesting to know how much money American Woodmark saved going from the “pretty picture” ARS to the “10-K wrap” ARS!
To summarize, the Form 10-K is the formal annual report filed with the SEC as part of complying with the 34 Act, while the ARS is not filed with the SEC, it is actually furnished to shareholders.
(The proxy rules do require that copies of the ARS be sent to the SEC, one of the few paper filings companies still have to make.)
Lastly, if you are focusing on the words filed versus furnished in the above sentence, yes, they are very important and mean very different things! We will discuss that difference in our next post!
As always, your comments and thoughts are welcome and appreciated!
Whistleblowers are much in the news. With stories ranging from Jim Marchese of “Real Housewives of New Jersey” fame collecting his second whistleblower legal settlement, to the SEC announcing a $1 million dollar whistleblower payout to a compliance officer, the volume of whistleblower activity is clearly increasing.
(The SEC Release is at:
www.sec.gov/news/pressrelease/2015-73.html )
Whistleblowers clearly play a key role in the detection of fraud. The SEC’s Office of the Whistleblower says: “Assistance and information from a whistleblower who knows of possible securities law violations can be among the most powerful weapons in the law enforcement arsenal of the Securities and Exchange Commission”.
If you would like to get to the story of how blowing the whistle affected one person’s life and career, skip to the links at the end of this entry. But first, here is some background about how regulators have tried to create paths for whistleblowers.
Congress has built ways for whistleblowers to do what their label says, blow the whistle when they find something that is wrong, a major focus in the efforts to combat fraud.
The Sarbanes-Oxley act created a whistleblower’s hotline to the audit committee and required that whistleblowers be able to blow the whistle anonymously. The Dodd-Frank Act created a separate incentivized hotline directly to the SEC. A whistleblower using the Dodd-Frank hotline can also remain anonymous and may even be entitled to cash rewards if the matter about which they blow the whistle results in penalties against the company.
Importantly, companies are not allowed to try and restrict employees in blowing the whistle. This is an important enough issue that the SEC has enforced against companies and levied fines when companies try to limit how employees can contact the SEC. A very recent example is against KBR’s use of a confidentiality agreement containing overly restrictive language, summarized at:
www.sec.gov/news/pressrelease/2015-54.html#.VRw2AzbD_cs
You can learn more about the Dodd-Frank hotline and the SEC’s Office of the Whistleblower at:
One would think with all this legislative and SEC support being a whistleblower is becoming an easier path to walk. However, it is still true that few events in a persons professional career are more stressful and disruptive than blowing the whistle.
Marketplace and Propublica have put together an interesting study of how one whistleblower’s path unfolded. It is a great example with lots of gray issues, a prolonged period of uncertainty, and many other complications. You can read and hear about it at:
www.marketplace.org/topics/business/whistleblowers-tale-how-accountant-took-halliburton
www.propublica.org/article/the-whistleblowers-tale-how-an-accountant-took-on-halliburton
One of the most challenging disclosures we discuss in our workshops is the required forward-looking MD&A requirement to disclose “known trends”. (As a heads-up, this post contains some pretty long comments, but they raise some very important issues!)
This forward-looking information requirement is rooted in the overall objective of MD&A as articulated in FR 72. The relevant section of the release states that part of the objective of MD&A is:
“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” (emphasis added)
And, of course, this is done “through the eyes of management”.
You can find the whole release at:
www.sec.gov/rules/interp/33-8350.htm
From this objective it is clear that if management knows about something that means past performance is not going to be predictive of future performance and the information is material, it should be disclosed in MD&A. This is made clear 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. (emphasis added)
The SEC is watchful for companies that surprise the markets with disclosure of bad news, potentially driving down their stock price, where the companies have not said anything about the bad news issue in previous filings.
In many cases the Staff’s presumption is that the bad news did not surprise management, and that in fact they knew about the problem well before they disclosed it to investors. In that situation, management likely failed to meet the disclosure requirements in MD&A and S-K Item 303(a) (3) (ii) specifically.
In our workshops we discuss some of the classic enforcement actions where this has happened, including the “groundbreaking” cases against Caterpillar and Sony. The staff continues to search for problems in this area, and frequently starts with the comment letter process.
Here are example comments that were written to a grocery store chain that had decided to exit one of its “banners”. In this industry a “banner” is a brand name for the supermarket chain. Notice the subtle interaction of these comments from the initial letter:
The first comment above puts the trend disclosure on the table. This next comment goes a bit further, clearly articulating the “does the past predicts the future?” requirement:
The following comment directly quotes S-K 303(a)(3)(ii), asking some very challenging questions:
After the company’s responses to the above comments, the staff wrote this follow-on comment in the second round of comments. Note the depth of the analysis asked for in the comment and the depth of the SEC’s review into material that was not even included in a 10-K or 10-Q!
We have read your November 2014 “Company’s Investor Presentation” and note the strong growth in the Chicago Market with the ChicagoBanner’s format. Further, you highlight several differences between your Wisconsin and Illinois markets. For example, on slide five you point out the Chicago market has “2x the productivity of your Wisconsin stores.” The information presented on slide six indicates that your ChicagoBanner’s banner is a “highly differentiated food shopping experience.” You further indicate on slide seven the ChicagoBanner’s banner has 1) two times the average Wisconsin retail sales volume, 2) lower EBITDA margin and higher gross profit dollars, and 3) strong store-level ROIC. We also note on slide sixteen that ChicagoBanner’s represents a significant growth opportunity for the Company. It also appears from the disclosures in your filings and your response to our comments that your Wisconsin and Illinois markets were behaving differently during 2013 and 2014, leading you to “[shift] focus to stabilizing [your] Wisconsin market” in contrast to “growing [your] ChicagoBanner’s banner.” We further note a general trend of highly differentiated grocery stores having higher profit margins than value-oriented grocery stores. Based on this information, we continue to believe that your Wisconsin and Illinois markets likely have different current or future trends in per-store revenue and per-store profitability, and that the mix of stores between these two markets will therefore impact your consolidated results. Please explain to us in significantly more detail why the apparent differences between these types of stores were not addressed in your most recent Form 10-Q, either as part of your analysis of results of operations or as part of your discussion of trends and uncertainties, and also tell us how these matters will be addressed in your upcoming Form 10-K.
So, the moral of this story, if you know of something that is reasonably likely to have a material impact on future results, don’t keep it secret! Even if you hope it will not be a problem, these MD&A requirements need to be carefully reviewed to determine when to share the information with investors!
As always, your thoughts and comments are welcome!