Since the collapse of Bailout 1.0, I've been wondering when critics would seize on mark-to-market accounting. It turns out that Newt Gingrich and Mark Cuban (never thought I'd use those two names in the same sentence) have been calling for a suspension of the rule. From Newt:
Mark-to-market accounting (also known as "fair value" accounting) means that companies must value the assets on their balance sheets based on the latest market indicators of the price that those assets could be sold for immediately. Under such a rule, declining housing prices don't just reduce the value of defaulting mortgages. They reduce the value of all mortgages and all mortgage-related securities because the housing collateral protecting them is worth less.
Moreover, when a company in financial distress begins fire sales of its assets to raise capital to meet regulatory requirements, the market-bottom prices it sells out for become the new standard for the valuation of all similar securities held by other companies under mark-to-market. This has begun a downward death spiral for financial companies large and small.
More foreclosures and home auctions continue to depress housing prices, further reducing the value of all mortgage-related securities. As capital values decline, firms must scramble to maintain the capital required by regulation. When they try to sell assets to raise that capital, the market values of those assets are driven down further. Under mark-to-market, the company must then mark down the value of all of its assets even more.
I'm not a tax gal. Anyone care to weigh in on this one? I know mark-to-market was the response to accounting hanky panky at Enron, WorldCom, et al. Was the cure worse than the disease?
Do you know that acronym? If not, you need to learn it. Moving the US toward the International Financial Reporting Standards will be a top priority of the new SEC commissioners -- including Troy Paredes -- once they are confirmed later this year. The Senate Committee on Banking held hearings on the new commissioners on Tuesday, and Chairman Dodd gave the right signals for confirmation: "I want to get people in place and start making decisions. Too much is at stake with this housing mortgage crisis, the economic crisis.... The SEC needs to function. We've got some huge issues out there."
The SEC hasn't abandoned its ever faltering mutual recognition efforts for foreign regulators and the markets they supervise. The last time it tried this seriously, the agency only got as far as Canada - sorta. But perhaps globalization - and the new impetus to harmonize accounting standards - will prove more inspiring this time. Here is the SEC's plan going forward:
The Commission contemplates taking the following actions:
- Exploring initial
agreements with one or more foreign regulatory counterparts, which
would be based upon a comparability assessment by the SEC and by the
foreign authority of one another's regulatory regimes.
- Considering adoption of a formal process for engaging other national regulators on the subject of mutual recognition. This process could be accomplished through rulemaking or other appropriate mechanisms, possibly informed by one or more initial agreements with other regulators.
- Developing a framework for mutual recognition discussions with
jurisdictions comprising multiple securities regulators tied together
by a common legal framework, including Canada (which has no national
securities regulator, but rather provincial regulators) and the
European Union (whose national securities regulators are subject to
supranational legislation and directives).
- Proposing reforms to Rule 15a-6 in order to improve the process by which U.S. investors have access to foreign broker-dealers.
Eat your heart out, Larry! I am sitting in a room filled with accountants at the BYU Accounting Research Symposium. The presenters are mostly doctoral students and new faculty, and one of the express purposes of the symposium is to provide feedback on early-stage work, so I won't blog about any particular projects.
Two quick observatons. First, though I was an accounting major as an undergraduate at BYU, this is my first academic accounting conference of any kind, and though the nature of this gathering is unusual because of its focus on work by newbies, I am pleasantly surprised by the level of audience participation. Lots of comments and questions. This must be a great help for the presenters.
Second, lots of law-talk in the papers and presentations. SOX, Reg FD, and other securities regulations of all kinds have a prominent place here. Very easy entry for an securities professor with some knowledge of accounting.
P.S. Former Conglomerate guest blogger Darren Roulstone is sitting nearby and is an active participant in the discussion. He is obviously a rock star here, no doubt because of his guest blogging.
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?
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?
A political storm is settling down over how much effort auditors should make when testing financial report reliability. Sarbanes-Oxley created the Public Company Accounting Oversight Board (PCAOB) and told it to have auditors test and report on a company's internal controls as a way to infer how reliable its financial statements are. Under PCAOB's first standard (2004), managers protested that auditors were asking too much at too great a cost. The SEC intervened to address this criticism by getting PCAOB to withdraw its original standard and replace it with a new one, which the SEC approved this summer. How do the two compare?
The original: (1) required auditors to do their own tests of controls, tell investors of any discovered problems, and explain their meaning for financial statement reliability; (2) said auditors had to disclose issues posing more than remote risks of misstatements; (3) let auditors choose what framework to use for the tests; (4) made both quantitative and qualitative problems relevant; and (5) told auditors how to evaluate audit committees.
The new version: (1) lets auditors rely on management for much of the testing and defer to management's report to investors about any problems; (2) gives investors only information about problems posing a "reasonable possibility" of misstatements; (3) lets management chooses what framework to use and requires auditors to follow management's choice; (4) scraps any notion of qualitative importance; and (5) throws out guidance on how to assess audit committees.
Proponents of the new version say it is more efficient by lowering costs of this exercise. Critics say audit quality, not efficiency, should guide evaluation of controls and financial statement reliability. Some defend the new standard by denying that it deviates from the original in substance, saying it is better because it uses "principles" not "rules." By this they mean it gives auditors and managers flexibility rather than spelling out what is required in detail.
The jury will be out on the merits for quite some time. We know that the original generated significant costs and can be fairly certain from the changes that the new version will cost less. Between the standards, the pendulum swung from one extreme toward the other. The unknown is whether it is now in the right place. We will only know that after the next wave of financial reporting fiascos occurs and is diagnosed. But you can be sure the diagnosis will focus on the quality of internal control.
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:
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
[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.
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.
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.
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.
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?"
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.
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.