FASB, the US accounting standard setter, has long protected its brand name, including by asserting copyright over its US GAAP standards and selling them for profit. In contrast, IASB, its international counterpart, although also asserting copyright over its international financial reporting standards, gives its products away free to all persons within any country that recognizes IFRS as official. Why this strategy? One possibility is to promote adoption. If so, it has worked: some 100 countries already recognize IFRS.

But what effect does the give-away program have on the signaling value of adopting IFRS? For signaling to work, adoption must carry a cost higher than low-quality users would pay. But it is essentially costless for countries to adopt IFRS and let IASB bear all associated costs—the giveaway program makes it even more cost-effective. Other aspects of the debate on IFRS quality and enforceability aside, what effect will IASB’s marketing triumph have on the credibility of its ultimate product?

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            In proposing to let non-US companies report in IFRS (international financial reporting standards) without reconciling to US GAAP, and seeking comments on letting US companies choose which to use, the SEC made a tactical choice: it justifies both moves in the name of promoting global uniformity.  This is a curious decision. 

            Hardly any serious, informed person actually expects people in all the different parts of the world to answer hard accounting judgments the same way, even if all apply the same written standards.  So the SEC’s premise looks wrong as a practical matter. 

            In reality, the moves would open the possibility of head-to-head competition between FASB, the US standard-setter, and IASB, promulgator of IFRS.  That may be appealing, at least for devotees of regulatory competition.  Let more standard setters bloom.  Let companies choose from the resulting garden of standards. 

            Is the SEC calculating that it will garner more support for its proposals in the name of “global uniformity” than it would in the name of “global competition”?  How does this calculation square with the likelihood that discord, not harmony, is the more likely result?

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Wow.

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Accounting firms may face catastrophic liability if they certify the returns give unqualified audit opinions before another Enron-style collapse.  And yet we don't have many big accounting firms left, and perhaps we would prefer not to lose another.  What to do?  Cap auditor liability?  Insure?  Seek ex-post bailouts?  Larry Cunningham proposes that the accountancies issue catastrophe bonds in this paper, and debates the issue with Kevin LaCroix of the D&O Diary here (permalink apparently unavailable UPDATE: link also here).  A taste, and please excuse the occasional brackets where I added explanatory materials - all errors mine:

Cunningham:

Reducing [catastrophic] risk by putting legal caps on auditor damages is a hard political sell—Members of Congress find it difficult explaining to American investors why these firms should enjoy such a privilege and any choice of cap levels could seem arbitrary....

I consider cat bonds because they: (a) could add resources to meet claims that threaten to destroy audit firms or the industry; (b) avoid political obstacles facing both caps and financial statement insurance; and (c) highlight informational problems in the policy debate on caps....

[I]t is possible to see informational problems [about the nature of the risk for accountancies] as a sort of market failure supporting regulatory intervention. Yet the information is within firms’ control and they can decide whether to use it in the political arena, in markets, or not at all. Notably, using this data [necessary to assess the risks of significant auditor liability] in the political arena to support caps creates incentives to overstate risk whereas using it in the marketplace to sell cat bonds creates incentives to understate risk

LaCroix:

[T]he whole value of a capital market based solution [like cat bonds] is to avoid the cyclicality and volatility of the insurance marketplace, but the capital markets for these kinds of bonds could be subject to the own cyclicality. Indeed, during a time of significant losses, there may be little or no market interest in bonds of this kind, just as when insurer losses mount insurance can be scarce or unavailable. For that reason, I am uncertain whether the availability of this type of capital market alternative, even if the other barriers could overcome, would in the end remedy the concerns for which an alternative to the traditional insurance marketplace was sought.

As they say, both check it out and download it while it is hot.

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Sox has turned out to be a continuing cost item (bonanza), and not the one-off expense that listed companies (accounting firms) had hoped (feared).  Year on year audit fees for US-listed companies continue to rise, according to a report by Foley & Lardner, as described by the Financial Times.  The finding gives lie to the conventional expectation that SOX costs would largely be borne in the early years following enactment, as companies scrambled for 404 compliance.  As a result of rising audit fees, SOX restrictions on non-audit services have not harmed accounting firms as was feared.  Instead, total fees have risen since 2001, the year before SOX was enacted. 

The report also confirms the disproportionate impact of SOX on small firms that many, including my colleague Bill Carney, have previously detailed.  Fees paid to auditors nearly doubled on average between 2001 and 2005, and last year audit fees paid by small companies rose 22 percent.  For the biggest companies, by contrast, total fees climbed by only a percentage point.

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SEC Chairman Chris Cox announced the process for selecting a new chairman of the Public Company Accounting Oversight Board (W$J):

Each commissioner will recommend as many as three individuals, and the agency will solicit names from outside the SEC. The commissioners will have five days to indicate their preferences, and any candidate without support from at least three commissioners will be dropped. A shorter list of nominees then will be circulated among the commissioners, who will be given one day to select the person they want to run the PCAOB. Finalists will be subjected to a 30-day background check, interviews and other formalities.

So far Cox has been deliberate in his tenure as SEC Chairman, but his cautious approach is winning fans, including me. This process for selecting PCAOB members will serve the commission well, as will Cox's attempt to develop standards for corporate fines.

So far, so good.

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I'm not picking on David in the slightest here -- I just happen to be riffing on his latest post.  And in his latest post, David asks, "how like accountants ought lawyers be?"  He means with respect to certain fiduciary obligations, but I want to jump up on my hobbyhorse and take this further.

I have long thought that we really make too much of accountants (and accounting) in our corporate regulatory regime.  We expect these folks a) to generate and interpret economically-meaningful numbers out of non-economic data, and b) to do so against the backdrop of vague accounting standards and significant client pressure.  Why, again, do we take these numbers seriously?  Why do we rest securities regulation and antitrust regulation, to take just two important examples, on these numbers?

It's too easy (and insufficient) to say it's because, bad thought they are, accounting numbers are the best we can do.  At some point (if it's true) we should acknowledge that a fatally-flawed regulatory regime is worse than no regulatory regime (and I'm not just saying that because I really think that an effective regulatory regime would be even worse). 

Likewise it is insufficient to suggest that these numbers can't be so bad, else why do corporations expend so much time and money generating and using them?  In part they do so because they are crude but effective tools for laying out corporate organization and for making purchasing, production and other internal, structural decisions.  But this does not make them necessarily useful for investors or regulators to determine the economic consequences of such decisions.  And in large part, I suspect that many of these numbers wouldn't be generated and wouldn't be used if they weren't required in the first instance under our securities laws.

Here is George Benston on the subject.  This is from a dialogue between George and, among others, F.M. Scherer, reproduced in Harvey J. Goldschmid, Business Disclosure: The Government's Need to Know (1979) at pages 124-140.  The entire dialogue is fascinating, and almost every one of George's comments is a spot-on zinger.  The following quote comes from page 130:

As to cost accounting data, as an accountant, I believe I am capable of proving anything I want with cost accounting data. If I can't, I will turn in my CPA. Because I have available to me a whole set of arbitrary allocation rules, any one of which is acceptable by authorities, I can make the numbers come out within some range. And anyone who looks at my data and thinks he knows something is a fool. But market prices are different. You have to sell something and buy something.

I haven't asked George if he still hews to this strong statement (and I note that the discussion comes in the context of his criticism of "segmental financial reporting," like the FTC's failed line of business reporting program), but I bet he does.

So we're left with rules requiring the disclosure of a bunch of questionable data (questionable, at least, for the purpose it's being put to) and a regulatory regime that turns, essentially, on whether or not this useless information is produced at the appointed time, under the prescribed conditions, and with prison sentences -- prison sentences! -- being meted out for folks who fail to dot their i's and cross their t's. We fetishize and sanctify this data to a degree staggeringly out of line with its real substance and then we penalize corporate managers and directors for failing to genuflect deeply enough. And this makes sense to whom?

By the way -- I make this point (well, I don't make it quite so forcefully or colorfully), among others, in the antitrust context in an article forthcoming in the Arizona Law Review (co-authored with Marc Williamson, my former colleague at Latham & Watkins), entitled Hot Docs and Cold Economics: The Use and Misuse of Business Documents in Antitrust Enforcement and Adjudication.

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My fellow guest blogger, David Zaring, asks, "Should 'proactive' duties on be imposed on lawyers to investigate the financial statements of their clients?"  The short answer is, "no."  The longer answer is, "no -- and will we ever quit trying to saddle every person who comes into even the slightest contact with corporations with new responsibilities and/or fiduciary duties to protect us from these nefarious beasts?  What's next -- a duty that janitors root through corporate waste bins to ferret out securities fraud?"

I won't rehash the arguments, but there's some good stuff here and especially (it is his bete noir, after all) here.

As to David's other question -- how would such a duty affect lawyers' fees? -- I assume the question was rhetorical.   Of course such a duty would be a boon to lawyers.  The thing is, despite the phrasing of the question ("duties imposed on lawyers"), it's not the lawyers who would be saddled with a costly burden; it's the corporations.

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Should “proactive” duties on be imposed on lawyers to investigate the financial statements of their clients? After the collapse of Enron, due in part to dodgy securitization deals that had been reviewed by lawyers at Vinson & Elkins, a number of academics have voiced support for something like a “duty to investigate” their clients. Your guest blogger is on an Enron kick, so I thought I’d be remiss in relating at least part of the state of play, as seen by this only vaguely informed observer.

I recently attended a stimulating lunch talk by Steven Schwarcz, in which he weighed the merits of a proactive paradigm against a “reactive” approach, which could trigger duties for further inquiry by lawyers, but only once a specified – and limited – series of conditions were met. I won’t try to characterize Steven’s views – his paper will be available soon, and this piece touches on similar issues – but it strikes me that there are functional differences between accountants, who often have on-site teams working with their corporate clients, and lawyers, who are – perhaps – more likely to be hired for discrete matters, like the review of a series of securitization deals.

So would efforts to make lawyers do more investigating change the traditional relationship they have with their clients? And if so, how – getting right to the point – would it affect fees? Perhaps Enron’s collapse will in fact be a beautiful thing for corporate lawyers.

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For William McDonough, I assume that (relative) anonymity is a sign of success. He was appointed to chair the Public Company Accounting Oversight Board (PCAOB) in the wake of the SEC's mishandled appointment of William Webster. While the PCAOB has not run without controversy, that controversy has swirled around an honest and healthy debate about the proper regulation of auditing firms, not about the integrity of the regulator. That is as it should be. Now McDonough is resigning, and the SEC will appoint a successor. The glare of public attention has mostly faded, but I will be watching.

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That is the breaking news on the W$J.

We have been following this case here, here, here, here, and here.

The executive summary: the collapse of KPMG would be a bad thing, and even though KPMG is hypocritical (for firing the head of its tax-services division and two partner/board members), this whole controversy over fraudulent tax shelters is overblown.

The settlement was reportedly reached yesterday and will be announced publicly on Monday.

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Here is an interesting study of the publication records of 212 faculty who were promoted from assistant professor to associate professor or from associate professor to full professor at the top 75 accounting research programs from 1995-2003. The study was motivated by the observation that "accounting scholars have relatively fewer publication outlets and fewer publications than colleagues in other business disciplines." (Why is that?)

Some of the results ...

* The promotion track for accounting professors is substantially longer than for law professors. "On average, professors included in the study took 6.29 (std. dev. = 1.2, median = 6.0) and 11.78 (std. dev. = 1.65, median = 12.0) years to achieve rank advancements to associate and to full, respectively." Although law schools vary, I would guess that those numbers are 4 years and 7-8 years, respectively, with the tenure decision coming after 6-7 years.

* Professors at top schools placed more articles in top accounting journals, but published fewer total articles than their peers at lower-ranked schools. The authors observe, "Consistent with commonly-accepted anecdotal evidence, these results suggest that professors at top schools focus their efforts on publishing articles in academic journals considered the highest quality rather than publishing a greater number of articles in professional or other academic journals."

* No matter how many articles you publish, you had better get some of them in top journals if you want to be promoted. "At the time of full promotion, every professor in the study had published at least one article in a journal ranked in a top 15 or top business journal and only about 5 percent of the promoted full professors in the study did not have a top 3 or top business publication at the time of promotion. At the high end of the spectrum, more than 15 percent of the promoted full professors had published 10 or more articles in top 3 accounting or top business journals and almost 30 percent had published 10 or more articles in a top 6 accounting or top business journal at the time of promotion."

One of the biggest differences between publishing legal scholarship and publishing business scholarship is that law journals do not have the same well-recognized hierarchy as other disciplines. As I explained here, we tend to think of the journals as falling into relatively rough prestige groupings that are highly correlated with the prestige of the sponsoring institutions. Also, we tend not to make strong inferences about the quality of scholarship based on its placement within the hierarchy because students are making the publication decisions without reference to well-accepted methodological standards. Of course, all of this strikes our colleagues in other university departments as insane, but there it is.

I was interested in the authors' observation that accounting scholars tend to have fewer publications than other business scholars. (Associate professors at top schools have roughly 6-11 publications and full professors have 15-21 publications.) These numbers seem high relative to law professors, who do not have a tradition of publishing co-authored articles (though that is becoming more common) and whose articles tend to be ridiculously long.

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A common question following the revelation of accounting frauds (such as those at WorldCom and Enron) is how such frauds developed within the complex U.S. system of accounting regulation.  One answer is that accounting rules themselves are the problem; or rather, the reliance on a rules-based system contributes to complicated schemes designed to get around the rules. 

A nice discussion of this idea is found in the  congressional testimony of Roderick M. Hills   (Chairman of the SEC from 1975-1977) in a hearing on "Accounting and Investor Protection Issues Raised by Enron and Other Public Companies."  Hills argues that today's regulatory environment lays out precise rules that simply provide executives with guidance on what they can get away with.  Hills quotes Paul Brown of New York University's accounting department: "It's the old adage of a F.A.S.B. rule.  It takes four years to write it, and it takes four minutes for an astute investment banker to get around it."

And given the existence of the rules, getting around them is seen as acceptable: "The system has been so precise so many times in saying what cannot be done that it has created an implication that whatever is not prohibited is permitted.  In law school this phenomena has long been known as: 'Expressio unius exclusio alterius.' "

Hills also cites my colleague Roman Weil, who has made similar arguments: "Weil, Professor of Accounting at the Graduate School of Business of the University of Chicago...has pointed out that today auditors, confronted with a somewhat different transaction, ask either FASB or the Emerging Issues Task Force (created by FASB and the SEC) for a new rule.  Instead of making their own judgement drawn from a conceptual framework, they seek the comfort of specificity..."   

Hills states: "The sad truth is that the profession has lost sight of the significance of the signature line of the opinions they give to all their clients.  That line reads: 'In our opinion, the financial statements [prepared by management] fairly present, in all material respects, the financial position of the company.'  Today that broad statement means only: 'We have looked but have found no material violation of applicable rules and regulations.'  Auditors should be more willing to qualify their opinion by saying: 'The company has satisfied all the rules but its financial statements do not fairly present its financial position.' "

Hills goes on to discuss the role of audit committees in preventing fraud as well as possible solutions to the problem of "too many rules."  One cautionary note: Although I mentioned WorldCom at the start of this post, it is not a good example of this problem.  WorldCom concerned a blatant mis-application of accounting rules.  Enron, in contrast, involved (among other things) complicated structures designed to satisfy the rules even though they mis-represented the company's financial position.  Roman Weil described this contrast wonderfully: "Enron is complicated; WorldCom is something we teach in week one."

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One of the potentially big innovations in SOX was the creation of the Public Company Accounting Oversight Board (PCAOB), which has been relatively quiet (except for the bit about internal controls) since the kerfuffle surrounding the appointment of William Webster as the Board's first chair. Things may be about to get more interesting, as the SEC inadvertantly disclosed a PCAOB investigation of Deloitte & Touche in connection with the audit of Navistar. This is the latest in a string of bad news stories for Deloitte, which include a big fine in the Adelphia case and an adverse ruling in the Parmalat litigation.

In addition to creating additional questions about Deloitte, this action raises questions about the effect of PCAOB sanctions on accounting firms. If the PCAOB imposes sanctions here, it will be the first such action against one of the Big Four. (The PCAOB's first disciplinary action is discussed here.) How will Deloitte's clients react? It seems to me that the PCAOB needs to find a means of enforcing the accounting standards without making one firm seem much worse than the others ... unless, of course, that one firm is much worse than the others. Interesting that Deloitte is the only Big Four firm that did not change its business model after Enron to split consulting and auditing. Is that relevant here?

Thanks to the White Collar Crime Prof Blog for the tip.

By the way, my friend Donna Nagy just published an article entitle Playing Peekaboo With Constitutional Law: The PCAOB and its Public/Private Status, in which she writes:

In creating the PCAOB, Congress provided the Board with a guaranteed source of funding, the means for subpoening documents, official immunity from civil liability, privileges from third party discovery, and a comprehensive system of oversight by the Securities and Exchange Commission (SEC or Commission)....

Notwithstanding its governmental creation, its governmental objectives, its governmental powers and privileges, and its governmentally appointed Board members, Congress established the PCAOB as a private, not-for-profit corporation. Congress’s determination to situate the PCAOB in the private sector could not have been clearer. In a section entitled “status,” the Act provides that “the Board shall not be an agency or establishment of the United States government and that “[n]o member or person employed by, or agent for, the Board shall be deemed to be an officer or employee or agent for the Federal Government by reason of such service.” The PCAOB’s public/private status renders its sardonic nickname “peekaboo” more than a bit profound.

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