The New Enforcement Manual: Document Productions –Part II

The last installment of this occasional series discussed document production procedures from the new SEC Enforcement Manual. Earlier installments considered the Wells process, cooperation and parallel proceedings.

Traditionally materials produced either voluntarily or pursuant to a subpoena were hard copy paper documents. Under the Manual however, the preference is for electronic production. If an electronic production is made, the material can be scanned collections, e-mail or native files. The Manual directs the staff not to take productions in other formats.

Electronic productions are to be organized by custodian and furnished to the staff along with a summary. That summary should describe the number of records, images, e-mails and attachments in the production. The description must contain sufficient detail to permit the staff to verify that the production is complete.

Any electronic production should be compatible with Concordance 8.2, which is the software used by the staff. The production can be delivered to the staff on a CD, DVD or a hard drive.

If a scanned collection is produced, the Manual specifies that it must contain four components: 1) an image file; 2) delimited text file; 3) optical character recognition text; and 4) option cross-reference file.

Finally, the preferred method for producing e-mail is to convert it into a central repository or database that is searchable with Concordance. The preferred format is delimited text with images and native attachments. Alternative formats that are acceptable are PST (Microsoft Office) and NSF (Lotus Notes).

While electronic productions are preferred, the Manual does provide that the “staff may allow a subpoenaed entity or individual to produce photocopies of the original documents …” The Manual goes on to provide guidelines for “acceptable productions” of copies. These include:

1) The copy must be identical to the original;

2) There must be an identifying notation on each page such as the initials of the person and it is to be followed by a number in a blank corner;

3) If the document contains a removable flag or post-it, a copy of the document with and without the flag or post should be produced;

4) In the case of multiple productions by the same source, it is suggested that a production date (month, date, year) be added; and

5) The producer must maintain the original of all copied documents.

Each of these guidelines should be followed when copies are produced.

The Market Crisis Spawns Accounting And Auditing Issues For Companies

As the market crisis continues to unfold, accounting and auditing issues have emerged as key concerns for companies, their management and their independent auditors. This is apparent from recent statements by the PCAOB and the SEC’s Office of Chief Accountant and comments by SEC Chairman Cox.

Earlier this month, The Public Company Accounting Oversight Board issued a Staff Audit Practice Alert on Audit Considerations in the Current Economic Environment. That Alert focuses on six areas of increased concern in view of the current market conditions. These include fair value measurements, accounting estimates, the adequacy of disclosures and considerations regarding the ability of an enterprise to continue as a going concern. There is little doubt that there will be increased focus on these and other areas in current audits.

Similarly, Marc Panucci, SEC Associate Chief Accountant, Office of the Chief Accountant, raised concerns for management and the auditor in view of the market crisis. In his remarks, Mr. Panucci focused on the impact of current market conditions on a company’s internal control over financial reporting and its disclosure controls and procedures noting: “Current market conditions have resulted in an increase focus on certain areas of financial reporting, such as valuation, impairment, and recoverability of certain assets; fair value measurements … .” These difficult market conditions may have impacted internal controls. In addition, difficult market conditions may create undo pressure to meet financial targets. Therefore “management and the auditor may also need to evaluate whether any changes to the fraud risk assessment are needed.” Remarks before the 2008 AICPA National Conference on Current SEC and PCAOB Developments. Accordingly, management and the audit committee would do well to focus on these areas in reviewing the company’s financial statements.

Finally, SEC Chairman Cox, in a speech before the same group as Mr. Panucci, commented on the SEC’s current study of mark-to-market accounting which has received a significant amount of attention in the current crisis. That study was mandated by the Emergency Economic Stabilization Act passed by Congress earlier this year as discussed here.

In his remarks, Chairman Cox discussed the status of the Commission’s study. Although the final report is not due until January 2, 2009 under the Act, Chairman Cox indicated that its current direction and a number of preliminary findings are in place. In this regard he identified three key points.

First, for many financial institutions, investments marked-to-market are a small portion of their investment portfolio. By far, the largest portion of those portfolios are investments in loans and available for sale securities that are not marked-to-market each period.

Second, most investors agree that fair value is a meaningful and transparent measure of an investment for financial reporting purposes. Financial reporting, the Chairman noted, is “intended to meet the needs of investors. While financial reporting may serve as a starting point for other users, such as prudential regulators, the information content provided to investors should not be compromised to meet the other needs.”

Finally, while accounting standards have served the capital markets well, “we must endeavor to continue to develop robust best practice guidance for auditors and preparers – particularly for fair value measurements of securities traded in inactive or illiquid markets.” The work the Commission has done to date suggests that while mark-to-market accounting improves transparency, better guidance is needed in inactive or illiquid markets according to the Chairman. In view of these remarks it seems clear that the Commission will recommend that mark-to-market accounting continue, but with additional guidance. In the meantime it is clear that management and company auditors will be giving increased scrutiny to accounting and auditing issues keyed to the market conditions.