In its highly anticipated decision in Salzberg v. Sciabacucchi, No. 346, 2019 (Del. Mar. 18, 2020), the Delaware Supreme Court confirmed the facial validity of a provision contained in certificates of incorporation of many companies requiring that claims under the Securities Act of 1933 (the Securities Act) be brought only in federal court and not in a state court. The decision reverses the Delaware Court of Chancery’s decision.
Category: Public Companies, Accounting, and Auditing
SEC Disgorgement: Looking to the Future
On March 3, 2020, the Supreme Court heard arguments in the case of Liu v. SEC, No. 18-1501. This article summarizes what transpired at the hearing, in which the arguments centered on a challenge to the ability of the U.S. Securities and Exchange Commission (“SEC”) to obtain disgorgement as an “equitable remedy” for securities law violations.
During the oral arguments, the Justices’ questions indicated that they appeared reluctant to entirely do away with disgorgement, but rather their queries focused on whether limitations should be placed on the SEC’s continuing use of disgorgement as an equitable remedy. Specifically, the Justices expressed interest in exploring parameters and limitations regarding how disgorgement is calculated and whether the SEC or defrauded investors are entitled to any disgorged funds.
In Enforcement Action, SEC Underscores Heightened Scrutiny of KPIs in MD&A Reporting
In February, the Securities and Exchange Commission (SEC) announced a settlement with Diageo plc, a London-based producer of liquor, wine and beer, for failure to make required disclosures of known trends and uncertainties, thereby rendering its required periodic filings materially misleading with respect to its financial results. The enforcement action provided immediate insight into how the Securities and Exchange Commission would act on its recent guidance related to disclosing key performance indicators and other metrics in MD&A reporting. The enforcement action makes it clear that public issuers should expect increased scrutiny of any metrics used to assess business performance and ensure they have appropriate disclosure controls and procedures in place.
Trump Budget Proposes Folding the PCAOB into the SEC by 2022
According to a White House budget issued on February 10, 2020, the White House is considering transferring the authority of the Public Company Accounting Oversight Board (PCAOB or Board) to the SEC by 2022 in order to eliminate duplication between the two regulators and to “reduce regulatory ambiguity.” See A Budget for America’s Future.
The Sarbanes-Oxley Act of 2002 established the PCAOB as a nonprofit corporation to oversee the audits of public companies in order to protect investors and the public interest by promoting informative, accurate, and independent audit reports. This was done in response to accounting scandals at major companies such as Enron and Worldcom. The SEC has oversight authority over the PCAOB, including the approval of the Board’s rules, standards, and budget. And, of course, the SEC has authority to broadly enforce the securities laws against, among others, auditors of public companies and registered broker-dealers. The PCAOB, however, rather than focusing on the entire range of securities law violations, typically focuses on violations of audit quality standards as embodied in its rules. For example, the PCAOB recently charged Pricewaterhouse Coopers’ Mexican affiliate firm with violating its Rule 3520, which requires a registered public accounting firm to be independent of the firm’s issuer audit clients. See In the Matter of Pricewaterhouse Coopers, S.A., PCAOB Release No. 105-2019-017 (Aug. 1, 2019). Moreover, many of the PCAOB staff members have public auditing experience, often with “Big Four” firms. Although the SEC also hires accountants, the agency would need to ramp up its hiring dramatically if it were to assume the PCAOB’s existing regulatory authority.
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SEC Gives Management’s Discussion and Analysis (MD&A) a Makeover
With the aim of eliminating certain duplicative disclosures, and modernizing and enhancing Management’s Discussion and Analysis (MD&A) disclosures for the benefit of investors while reducing the compliance burden on companies, the Securities and Exchange Commission (SEC) has proposed amendments to simplify and enhance certain financial disclosure requirements in Regulation S-K. The proposed amendments, released January 30, 2020, are part of an ongoing re-evaluation of the current disclosure regime per the SEC’s recommendation in the Report on Review of Disclosure Requirements in Regulation S-K, which was mandated by Section 108 of the JOBS Act, adopted in 2012.
The proposed amendments would eliminate Items 301 (Selected Financial Data), 302 (Supplementary Financial Information) and 303(a)(5) (Tabular Disclosure of Contractual Obligations in MD&A) of Regulation S-K, as well as revise a number of disclosure obligations under Item 303 (Management’s Discussion and Analysis of Financial Condition and Results of Operations).
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The SEC’s Most Detailed Cybersecurity Guidance to Date
The SEC, through its Office of Compliance Inspections and Examinations (“OCIE”), recently issued its most detailed cyber guidance to date. OCIE had previously issued several cybersecurity risk alerts over the past few years. This most recent release, however, offers much more than a risk alert. OCIE’s “Cybersecurity and Resiliency Observations” goes into significantly more detail than OCIE’s prior risk alerts in this area and is fashioned in a vastly different and more user-friendly format. Thus, it is required reading for SEC regulated entities because, rest assured, it will be closely followed and applied by OCIE staff conducting cyber examinations, as well as by the Division of Enforcement’s “Cyber Unit.”
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The SEC Lays Down a Bet in a Nevada Court
The college football bowl season is upon us, NFL teams are jockeying for playoff seeding, and with the college basketball season underway fans of that game are looking longingly towards March for how their brackets may look for the 2020 tournament. Thus, sports and the gambling associated with it are all around us. In recent years, this gambling has risen from the shadows and is now openly discussed throughout society. So this industry has evolved and continues to evolve, since the times when gamblers needed to travel to Las Vegas or Atlantic City to legally gamble. Over the years, state laws have expanded such that today numerous states allow gambling in some form. Further accelerating this expansion, in the spring of 2018, the U.S. Supreme Court struck down the Professional and Amateur Sports Protection Act.
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The SEC in 2019: Doing More With Less
Facing a 35-day government shutdown and new restrictions on the ability to recover disgorgement, it would be perfectly understandable if the SEC’s Division of Enforcement suffered a lackluster year. Nevertheless, according to their recently released Annual Report, the Division of Enforcement defied the odds and turned in an impressive year by most metrics. The full report is available here, but we address several key aspects of the report below.
In fiscal year 2019 (which runs from October to September), the SEC reported a total of 862 enforcement actions, including 526 “standalone” actions filed in either federal court or as administrative proceedings, which was its highest number of standalone actions since 2016. The SEC also filed 210 “follow-on” proceedings seeking the barring of individuals based on actions by other authorities or regulators. This number of “follow-on” proceedings matched the prior year’s total, and was about 10% higher than the number of such actions filed in 2016 or 2017. Though the Report laments the handcuffs placed on the Enforcement Division by the Supreme Court’s ruling in Kokesh v. SEC, which tied recoverable disgorgement to the five-year statute of limitations, the SEC nevertheless secured $3.248 billion in disgorgement – a five-year high. In addition, while 2019’s $1.101 billion in penalties was more than $300 million lower than what was ordered in 2018, it nonetheless surpassed the 2017 numbers, and contributed to a total amount of money ordered paid in 2019 (between disgorgement and penalties) that represented another five-year high for the SEC. Despite these metrics revealing a very solid year for the Enforcement Division, the Report made it a point to highlight that the SEC estimates that it has had to forgo more than $1.1 billion in disgorgement in filed cases as a result of Kokesh.
The strong financial results for 2019 were buoyed by several major actions settled in 2019. Indeed, in separate actions initiated against Mylan, Fiat Chrysler, Hertz, and two other major corporations, the SEC secured more than $200 million in penalties alone. In addition, in actions over the past two years against a variety of financial institutions relating to the early release of the American Depository Receipts, the SEC actions resulted in orders for more than $425 million in disgorgement and penalties. While these large actions contributed to the substantial financial achievements of the SEC in 2019, the report noted that in actions in which money was ordered to be paid the median amount of such total payments rose from $362,858 last year to $554,003 this year.
The SEC’s overall numbers were undoubtedly bolstered by successful implementation and conclusion of its Share Class Selection Disclosure Initiative. The Initiative, which permitted investment advisory firms to self-report failures to disclose conflicts of interest associated with the selection of fee-paying share classes as opposed to low-fee or no-fee share classes, allowed self-reporters to obtain standardized (and relatively favorable) settlement terms. The Initiative generated settlements against 79 advisers in March 2019, and another 16 advisers settled in September 2019. In total, the 95 advisory firms agreed to return more than $135 million to affected investors.
In addition to emphasizing all of these key metrics, the Report reiterated several themes that have been hallmarks of the SEC under Chairman Clayton. At the top of the list is “protecting main street investors,” as evidenced by the Share Class Initiative mentioned above, as well as the continued operation of the SEC’s Retail Strategy Task Force as a source for both providing education and generating new investigations. The Report also highlighted the continuing emphasis that the SEC would be placing on holding individuals accountable for wrongdoing, and highlighted several cases from the past year in which C-level executives were charged in both settled and litigated fraud actions. Digital assets, cryptocurrency, and other distributed ledger technology cases also played a prominent role in the report, as the SEC acknowledged that its enforcement actions in this space “matured and expanded” over the past year. Finally, the Enforcement Division also explained that it was working diligently to accelerate the pace of its investigations. Not only would this faster pace decrease the chance of encountering Kokesh problems when seeking disgorgement, but it also helps speed the pace at which harmed individuals and investors can recover their losses.
In a year in which it lost more than a month due to the government shutdown and just recently regained the ability to hire new staff, the Enforcement Division appeared to work both harder and smarter to generate results that met or exceeded its recent historical benchmarks. Going forward, it will be interesting to see whether the SEC can replicate or improve on these results with the benefit of additional time and a more complete complement of attorneys and other professionals.