Latest updates

New statement on key reminders for audit committees
Cooley LLP
  • Corporate & Commercial
  • USA
  • 10 February 2020

While company managements have long engaged with shareholders at annual meetings and investor presentations, the notion of director engagement with shareholders is a more recent development. But why is shareholder engagement increasingly being added to corporate director job descriptions? This article posits several theories for the trend and identifies the most common engagement topics, provides data on the frequency of engagement and highlights emerging practices relating to director engagement.

How will companies and CEOs meet corporate social responsibility challenges?
Cooley LLP
  • Corporate & Commercial
  • USA
  • 03 February 2020

A recent discussion on the Business Roundtable's adoption of a new statement on the purpose of a corporation concluded by observing (rhetorically) that the question raised by the statement was what all of the signatories would actually do to fulfil their corporate social responsibility commitments. Apparently, some non-governmental organisations are now asking that question for real and, ironically, one of the first recipients is a well-known leader of the pack on commitments to all stakeholders.

Jackson advocates transparency in political spending by corporations and institutional investors
Cooley LLP
  • Corporate & Commercial
  • USA
  • 27 January 2020

In July 2019 Representative Carolyn Maloney contacted Securities and Exchange Commission Commissioner Robert Jackson to solicit his views on legislation that would require public companies to disclose their corporate political spending. In his recent response, Jackson declared that the absence of transparency about political spending has led to a lack of accountability, allowing executives to spend shareholder money on politics in a way that serves the interests of insiders, not investors.

How does public view executive compensation?
Cooley LLP
  • Corporate & Commercial
  • USA
  • 20 January 2020

A recent Rock Centre for Corporate Governance paper suggests that the disconnect between observed pay levels and the public's view of executive compensation is stark. The paper was based on a survey conducted in October 2019 of 3,078 individuals – nationally representative by gender, age, race, political affiliation, household income and state residence – to understand the views that US citizens have on executive compensation.

Does appointment of former partner of client's audit firm to client's audit committee impair audit quality?
Cooley LLP
  • Corporate & Commercial
  • USA
  • 09 December 2019

Studies of former partners of audit firms who have assumed management positions at audit clients have raised concerns, at least pre the Sarbanes-Oxley Act, about potentially lower audit quality, perhaps reflecting audit firms' reluctance to challenge aggressive accounting decisions made by their former partners. But what happens when a former partner joins the audit client's audit committee?

Corp Fin issues SLB 14K – it's 'ordinary business' again
Cooley LLP
  • Corporate & Commercial
  • USA
  • 18 November 2019

Division of Corporate Finance staff recently issued a new Staff Legal Bulletin 14K on shareholder proposals and the 'ordinary business' exclusion. The new bulletin contains an enhanced reminder that it has not been approved by the Securities and Exchange Commission and, like all staff guidance, has no legal force or effect, does not alter or amend applicable law and creates no new or additional obligations for any person.

How have companies adapted to CAMs?
Cooley LLP
  • Corporate & Commercial
  • USA
  • 21 October 2019

In a recent report, Intelligize examined data from a survey of 171 compliance specialists at public companies to examine how public company compliance officials are adapting their own corporate disclosure and processes to comply with this new regime. Among the issues considered were the impact of 'dry runs', changes to company disclosures and changes in controls.

EY discusses voluntary audit committee disclosures
Cooley LLP
  • Corporate & Commercial
  • USA
  • 07 October 2019

Audit reports for most public companies will soon be required to disclose critical audit matters, which are intended to make the audit report more informative for investors. However, over the past several years, companies and their audit committees have gone a long way towards increasing the amount of audit-related information that they provide to investors voluntarily. While year to year the changes appear largely incremental, the change over the entire period is considerable.

Corp Fin changes approach to responding to no-action requests to exclude shareholder proposals
Cooley LLP
  • Corporate & Commercial
  • USA
  • 30 September 2019

The Securities and Exchange Commission (SEC) Division of Corporation Finance recently announced that it is revisiting its approach to responding to no-action requests to exclude shareholder proposals. In essence, the SEC may respond to some requests orally rather than in writing and, in some cases, may decline to state a view altogether, leaving the company to make its own determination.

Deloitte looks at first round of CAMs
Cooley LLP
  • Corporate & Commercial
  • USA
  • 23 September 2019

AS 3101, the new auditing standard for the auditor's report that requires disclosure of critical audit matters (CAMs), is effective for audits of large accelerated filers for fiscal years ending on or after 30 June 2019. Deloitte has reported that an average of 1.8 CAMs were disclosed per audit report and that the most commonly disclosed related to goodwill and intangible assets.

Board gender diversity reaches new milestone
Cooley LLP
  • Corporate & Commercial
  • USA
  • 26 August 2019

A new milestone has finally been reached for board gender diversity: there are no longer any companies in the S&P 500 with all-male boards. According to a publication on US Board Diversity Trends in 2019, 45% of new board positions among the Russell 3000 were filled by women in 2019. This is up from 34% in 2018 and a substantial improvement compared with only 12% in 2008. Under the new law, public companies will be required to have at least one woman on their board of directors by the end of 2019.

FASB tentatively decides on new staggered approach to effective dates for major standards
Cooley LLP
  • Corporate & Commercial
  • USA
  • 19 August 2019

The Financial Accounting Standards Board recently signalled its intent to adopt a new two-bucket approach to stagger the effective dates for new major accounting standards. Under the new approach, the new standards' effective dates would be delayed for entities in bucket two (ie, smaller reporting and private companies, employee benefit plans and not-for-profit organisations) for at least two years after the effective dates for entities in bucket one (ie, other Securities and Exchange Commission filers).

Delaware Supreme Court allows Caremark duty of loyalty claims against directors to survive dismissal motion
Cooley LLP
  • Corporate & Commercial
  • USA
  • 12 August 2019

What does it take to plead a Caremark case that can survive a motion to dismiss? A recent case illustrates that a board can help establish one if it simply leaves compliance and risk oversight entirely to the prerogatives of management. However, the case is also a warning that directors should be proactive in conducting risk oversight and could face liability if they fail to make a good-faith effort to implement an oversight system and then monitor it.

FASB to consider delaying required adoption dates of new standards for some companies
Cooley LLP
  • Corporate & Commercial
  • USA
  • 29 July 2019

The Financial Accounting Standards Board will consider whether the adoption dates for new accounting standards should be delayed for small public companies and privately held businesses. Small business finance professionals at a recent Financial Accounting Standards Advisory Council meeting indicated that, while they may be comfortable following the same rules, smaller companies do not have the same resources as large public companies and need extra time to implement significant new accounting rules.

Spot survey shows use of ESG metrics in incentive compensation plans
Cooley LLP
  • Corporate & Commercial
  • USA
  • 22 July 2019

A compensation consultant recently conducted a spot survey of 135 companies which looked at the prevalence and type of environment, social and governance (ESG) metrics used in incentive compensation plans, including metrics relating to the environment, employee engagement and culture and diversity and inclusion. Efforts to link ESG factors to executive compensation have been a common thread in numerous shareholder proposals.

ISS takes early look at 2019 proxy season
Cooley LLP
  • Corporate & Commercial
  • USA
  • 15 July 2019

With 70% of the Russell 3000 annual meetings completed, Institutional Shareholder Services (ISS) has taken an early look at the 2019 proxy season. ISS found increases in opposition to director elections and say-on-pay proposals, as well as increases in the number of and withdrawal rates for environmental and social (E&S) proposals relative to governance proposals. In addition, the disparity between the levels of support for E&S proposals and the historically more popular governance proposals has narrowed dramatically.

Is there a business case for environmental social governance?
Cooley LLP
  • Corporate & Commercial
  • USA
  • 08 July 2019

Do companies that ignore long-term environmental or social costs in the pursuit of near-term profits pay another price in foregoing potentially long-term sustainable profit opportunities? A recent business case for environmental social governance from Stanford University's Rock Centre for Corporate Governance suggests that, properly analysed, sustainability can not only affect externalities, but also benefit businesses.

New PCAOB guidance on auditor communications regarding CAMs
Cooley LLP
  • Corporate & Commercial
  • USA
  • 01 July 2019

The Public Company Accounting Oversight Board recently published new guidance on auditors' communication of critical audit matters (CAMs) in auditors' reports. The guidance includes new frequently asked questions relating to how auditors should describe their principal considerations in determining CAMs, the relationship between CAMs and company disclosures and the treatment of recurring CAMs.

Is 'stale' a reason for 'male and pale' boards?
Cooley LLP
  • Corporate & Commercial
  • USA
  • 20 May 2019

California's new board gender diversity mandate is expected to fuel a greater effort towards board gender diversity. Under the new law, public companies will be required to have at least one woman on their board of directors by the close of 2019. That minimum increases to two women by 31 December 2021 if the company has five directors and to three women if it has six or more directors. While the first of its kind in the United States, this mandate may not be the last.

Help is here for audit committees – CAQ offers updated auditor assessment tool
Cooley LLP
  • Corporate & Commercial
  • USA
  • 22 April 2019

To fulfil their oversight responsibilities, audit committees typically evaluate external auditors at least annually to determine, in part, whether they should be engaged for the subsequent fiscal year. The Centre for Audit Quality (CAQ) recently published an updated External Auditor Assessment Tool. Like many other helpful CAQ tools, this one provides a number of sample questions to help audit committees satisfy their oversight obligations with regard to external auditors.

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