Governance Center Blog

May
31
2011

Worth Reading … Final SEC Whistleblower Rules

As you all may well know by now, the SEC has adopted its final rules to create a whistleblower bounty program as part of the Dodd-Frank Act by a familiar 3-2 split vote. The rules, which go into effect 60 days after they are submitted to Congress or published in the Federal Register, has begun a second wave of client memos from some law firms.

Some of the early memos focus on the controversy over the possibility that the new $452 million SEC whistleblower bounty program could undermine the work of internal audit and compliance programs that were strengthened following the passage of the Sarbanes-Oxley Act in 2002. The fact that the SEC did not mandate employees must first go through those internal compliance programs led many to argue (including Commissioners Troy Paredes and Kathleen Casey) the bounty program would cause many whistleblowers to bypass their company programs. Their belief is that with the SEC now offering big monetary rewards for information leading to a successful enforcement of a securities violation and disgorgement of funds the agency will take the agency longer to investigate an alleged action than the company itself.

For a good description of the controversy on the SEC vote, check out the FEI blog post by Edith Orenstein. By the way, the SEC whistleblower rules have been very much on the minds of audit committee members of public companies, according to KPMG’s Audit Committee Institute. In a survey taken at its 2011 Audit Committee Issues Conference, ACI reported that 45 percent of those polled at the conference were very concerned about the impact of the expanded bounty program on the ability of the company to discover and address compliance issues. To see the full report, click here. Read the rest of this entry »

May
20
2011

Women Groups, SEC Commissioner Lead Charge for More Board Diversity

Maybe for change to take place on U.S. corporate boards, it may have to take the support of an influential person such as the President. But for now it seems a sitting SEC commissioner will do.

Earlier this month, SEC Commissioner Luis A. Aguilar had some strong words for corporate boardrooms about the lack of women and minority members on their boards. “Even though our nation has grown more diverse, the corporate boardroom is proving resistant to change. I find this status quo unacceptable and question why at a time when there are more qualified diverse board candidates, we have less diverse board members.”

Aguilar was responding to some dismal numbers that came out on May 2 from the Alliance for Board Diversity in its report, Missing Pieces: Women and Minorities on Fortune 500 Boards — 2010 Alliance for Board Diversity Census. That report found that in the Fortune 100, between 2004 and 2010, white men increased their share of board seats in corporate America from 71.2 percent to 72.9 percent. In fact, that report, which was done by Catalyst, also found that of the Fortune 500, in 2010 only 15 companies had members of each of the U.S. Census Bureau ethnicity and origin groups. Read the rest of this entry »

Jan
06
2011

Some More Top Issues Lists for 2011

With the first week of the New Year just about over, I have come upon three more top issues lists for directors and management in 2011. Consider this an addendum to my Dec. 21 post.

One list comes from the very prolific and opinionated Norman Marks of the Institute of Internal Auditors, a thought leader on internal audit, corporate governance, risk management and compliance who is responding to KPMG Audit Committee Institute’s Ten To-Do’s for Audit Committees in 2011 list. Another is the annual list of Top Challenges for Financial Executives by Marie N. Hollein, president and CEO of Financial Executives International. The other list, which I just received today, comes from Michael Rasmussen, president and owner of Corporate Integrity LLC, a corporate governance, risk management and compliance (GRC) think tank and advisor. Read the rest of this entry »

Jun
18
2010

Compensation Plans Provide Companies Chance to Rebuild Trust

Although executive compensation plans may not be as big a source of shareholder and public anger that they were last year in the heat of the financial crisis, they will become a sticking point for boards if and when Say on Pay becomes mandatory.

But there is a deeper reason public companies may want to address their compensation plans in the near future. There is a societal context to executive compensation as U.S. businesses try to regain the trust of the public and citizens feel some degree of common cause with those businesses. The financial crisis is the latest erosion of that trust, especially since American taxpayers were asked to bail out some of those large businesses. Read the rest of this entry »

Mar
31
2010

Beware: SEC Fishing for Repo’s in Company 10-Ks

Whether or not you’ve heard about the tricky accounting technique Lehman Brothers allegedly used to mask huge losses before filing for bankruptcy protection in 2008, you may want to read this.

It is a so-called “Dear CFO” letter from the SEC’s Division of Corporation Finance. It could be the first step the SEC may take in a deep dive into your financial statements to look at how your CFO accounted for repurchase agreements, securities lending transactions and other transactions involving the transfer of financial assets.

The letter, which went out in March to certain companies, is in response to an examiner’s report on the bankrupt Lehman Brothers. That bank allegedly used an accounting treatment called Repo 105 that has proved to be somewhat controversial. In an interview with CNBC this week reported on in CFO magazine, SEC Chair Mary Schapiro spells out the SEC’s strategy behind the letter. Read the rest of this entry »

Jan
05
2010

Worth Reading…IFRS

While many of my posts have focused on corporate governance reform and executive compensation, I thought it made sense in the new year to touch upon an issue all public U.S. companies will have to deal with sooner than later: international financial reporting standards.

A piece in the December edition of CFO magazine (IFRS: Convergence vs. Conversion, December 2009), points out that no matter what the SEC decides on mandating the switch from U.S. GAAP to IFRS, U.S. companies are going to move toward “overarching principles and away from more easily manipulated rules.” Quoting Financial Accounting Standards Board (FASB) Chair Robert Herz, the CFO article goes on to differentiate between convergence and conversion. For the most part, convergence allows some form of U.S. GAAP rules to exist in a hybrid form that is similar to IFRS. However, most of the convergence (FASB-IASB convergence project) is done on a rule by rule basis (i.e. lease accounting, fair value measurement). Conversion is the adoption of principles-based IFRS by companies using rules-based U.S. GAAP.

Since the height of the international financial crisis in late 2008, many U.S. companies (including the Big 4 accounting firms) have stopped exploring efforts to adopt IFRS for the time being. In fact, a survey of CFOs at oil and gas exploration and production companies by BDO Seidman released Tuesday found that 59 percent of respondents are “not thinking about IFRS at all” in 2010 and 33 percent intend not to do anything with IFRS until things become clearer or a changeover from U.S. GAAP is mandated. By the way, 3 percent are actively planning a transition to IFRS.

That doesn’t necessarily mean U.S. public companies shouldn’t be thinking about IFRS. The issue is among the Top Challenges for Financial Executives, according to Financial Executives International.

Here’s a sample of what I am reading on the topic of IFRS:

  • SEC: No IFRS Yet, Marie Leone, CFO.com, Dec. 9, 2009 http://www.cfo.com/article.cfm/14460972/c_14461841?f=home_todayinfinance. Key findings: The SEC’s chief accountant isn’t dropping any hints about whether the regulator favors a move to international reporting standards. SEC Chief Accountant James Kroeker said issuers will hear more from the SEC about international financial reporting standards in the near term. CFO.com took that to mean it will be early next year when the SEC will decide as promised whether to require U.S. public companies to file financial results using IFRS.
  • Abuse of Revised IFRS Standards ‘Inevitable,’ Laurie Carver, Life & Pensions magazine, Jan. 5, 2010. www.risk.net/life-and-pensions/news/1567422/abuse-revised-ifrs-standards-inevitable. Key findings: The new International Financial Reporting Standard (IFRS) 9 for financial instruments’ accounting will “inevitably lead to abuses and accounting arbitrage”, according to Jim Leisenring, a member of the International Accounting Standards Board (IASB). The new directive, approved at the end of 2009, would allow the valuation of financial products at amortised cost, rather than fair value, in management of businesses whose “objective…is to hold [it] to collect the contractual cash flows”, regardless of whether they sold it before term. Read the rest of this entry »
Nov
20
2009

Bureaucratic Roadblocks Holding Up Guidance on Fair Value, Financial Instrument Standards

Those of you who attended the Financial Executive International’s 28th annual Conference on Current Financial Reporting Issues (CFRI) in New York City on Monday and Tuesday got a glimpse of what is holding up clear guidance on accounting standards for financial instruments and fair value measurement. Those of you who didn’t have the opportunity to make it to the Marriott Marquis, you may want to read on.

It was evident during Monday’s Financial Accounting Standards Board/International Accounting Standards Board  update (featuring Robert Herz, FASB chair, Patrick Finnegan, IASB board member, Russell Golden, FASB technical director) that there is a lot more to do. That’s despite some recent actions by the IASB as well as a joint meeting between the two standard setters. It has been more than a year after the height of the financial crisis triggered by mortgage-backed securities brought down banks worldwide causing governmental bailouts, and yet still there is no clear guidance on fair value measurement of financial instruments.

While the FASB and IASB are being asked to come up with such guidance in a timely manner, the two standard setters are still trying to reconcile the many differences between existing standards. It’s the rules-based standards of FASB vs. the principles-based standards of the IASB. At the same time, a new Securities and Exchange Commission (SEC) is thinking about next steps for adopting International Financial Reporting Standards (IFRS). So it should be no surprise that both boards don’t expect to have final standards on both financial instruments and fair value measurement until late 2010.

“[SEC Chair] Mary Schapiro said, ‘I’m new, I’m not bound by the past SEC’s IFRS Roadmap,’” FASB Chair Robert Herz said at Monday’s CIFRA session. “Unfortunately, that was misinterpreted by some as pouring cold water on the whole thing. Both she and Jim Kroeker [SEC deputy chief accountant] say they are going to make clear by the end of the fall where they are going with IFRS. So I would expect an answer by 9 a.m. on Dec. 21.”

Regarding financial instruments (specifically mortgage- and asset-backed securities, collateralized debt obligations and derivatives), the IASB jumped ahead of the FASB by announcing Nov. 12 (read press release) it has approved a new standard, IFRS 9 Financial Instruments. Mandatory adoption of the standard would take effect Jan. 1, 2013, although early adoption is permitted for the 2009 year-end financial statements. The FASB expects to produce an exposure draft that addresses the classification and measurement, impairment technology and hedge accounting financial reporting requirements by the first quarter of 2010. Both boards plan to publish final standards by the fourth quarter of 2010.

In a joint statement Nov. 5 on their original memorandum of understanding, both boards wrote that they were “concerned that the difference in timetables is creating a risk that they will develop different requirements for some financial instruments. Such an outcome is inconsistent with the goal of providing investors with information that is both of high quality and comparable irrespective of whether the entity reporting is applying IFRS or US GAAP.”

On fair value, while the FASB has been looking to update FAS 157 Fair Value Measurements, the IASB published its first exposure draft on an IFRS for fair value measurement in May. In October 2009, both boards agreed in a joint meeting that their objective to ensure fair value has the same meaning in US GAAP and IFRS.

“We agreed to come together on hedging,” Russell Golden, FASB technical director, said at Monday’s session. “We are creating a joint operational panel in the next two weeks. …We plan to reconcile FAS 157 to IASB guidance.”

The IASB will continue to hold roundtables on fair value measurement in Asia, Europe and North America in conjunction with FASB, IASB plans to publish its final standard on fair value measurement and FASB will make amendments, if any, to US GAAP.

When all is said and done, urgent guidance action by the world’s two most influential accounting standard setters would have taken nearly two years to produce. In the meantime, what are all the public companies affected by such financial instruments to do.

To learn more about the specifics of FAS 157 and IFRS 9 by going to the FASB and IASB websites. To check more about CIFRA, go to the FEI blog.

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