Auditor Inclusion of Critical Audit Matters in Audit Opinion – Center for Audit Quality Release to Help Understanding

You might be aware that external auditors are required to include a discussion of critical audit matters in their audit opinion reports for large accelerated filers for audits of fiscal years ending on or after June 30, 2019, and for other public companies for audits of fiscal years ending on or after December 31, 2020. I believe that these discussions will in some instances present or cause contentions between the external auditor on the one hand, and the audit committee, board, and chief executive officers on the other hand.

A Critical Audit Matter or CAM is defined as:

Any matter arising from the audit of the financial statements that was communicated or required to be communicated to the audit committee: and that:

  1. Relates to accounts or disclosures that are material to the financial statements; and
  2. Involved especially challenging, subjective, or complex auditor judgment.

Thus, based on the above definition, simply determining whether a matter is a CAM could be a challenging issue.

For example, in any given audit situation consider:

-What matters were communicated, or were required to be communicated to the audit committee;

-Relating to accounts or disclosures that are material to the financial statements; and

-Involved especially challenging, subjective, or complex auditor judgment?

I will be discussing the good, the bad, the ugly, and the confusing as this upcoming new area of audit opinion report continues to develop. Auditors and audit committees will need to carefully evaluate what to communicate and what is required to be communicated, materiality (qualitative and quantitative), and whether a matter involves especially challenging, subjective, or complex audit judgment.

For additional help with these issues, the following is a link to a June 24, 2018, release by the Center for Audit Quality entitled Critical Audit Matters: Key Concepts and FAQs for Audit Committees, Investors, and other Users of Financial Statements – click on the following link https://www.thecaq.org/critical-audit-matters-key-concepts-and-faqs-audit-committees-investors-and-other-users-financial

Best to you, David Tate, Esq. (and California inactive CPA)

 

 

 

 

Can’t get fire insurance for homes in the California foothills? Owner and lender risk management and more . . .

I heard this today. I don’t know if it is true or not, but it sounds possible. People who own houses in the California foothills and related possible fire zones might be having trouble and might not be able to get fire insurance for their homes, or the premiums could be prohibitively expensive.

Considering the fires in both northern and southern California during the last 2-3 years, there could be a lot of fire zone areas.

If this is true, it raises a whole host of issues in addition to the owners simply wanting to insure one of their most valued assets. Other issues include, and this is not an exhaustive list, what if there is a mortgage on the house and the loan agreement requires the owner/borrower to have fire insurance – what are the lenders going to do in this circumstance; what areas will insurance companies classify as unusual fire zone or hazard areas that are subject to different fire insurance coverage or offerings; are any insurance companies at risk of insolvency or bankruptcy due to exposure for having to pay for damages arising from the fires; and what will the California government do and say about these issues (hint – I’m not hearing anything)? And I am sure that you can come up with a more comprehensive list.

Insurance typically is considered a risk management issue, but it is a personal issue for homeowners, and it would not surprise me if fire insurance coverage, and building in general, become political in this instance.

Back to work – a full day ahead working on pleadings, declarations, court filings, and meetings.

Best to you, David Tate, Esq. (California). My two primary blogs: trust, estate, elder and dependent adult abuse litigation, etc. – http://californiaestatetrust.com, and D&O, audit committees, governance, etc. – http://auditcommitteeupdate.com

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

 

Tate’s Excellent Audit Committee Guide (02172017) – posted here, and being update

Below I have provided a link to Tate’s Excellent Audit Committee Guide, which I last fully updated February 17, 2017. Since that time developments relating to various of the discussion topics have been posted to this blog. I am starting the process of fully updating the Guide. To be sure there have been changes and developments since February 17, 2017; however, I believe that you will still find the Guide useful.

Click on the following link to the February 17, 2017, Guide Tate’s Excellent Audit Committee Guide 02172017 with Appendix A-2

The following is a screenshot of the Guide’s cover:

 

 

 

Risk Management – We Really Haven’t Gotten As Far As I Would Have Thought – My Suggestion: Government, Nonprofits, Education, Healthcare, Etc., Should Be Leaders

Risk management or the need for a business to have and implement risk management processes is obvious, or at least in my view it is. Of course, each business is different and risk management will vary from business to business. Thus, a recent article in the Journal of Accountancy (see link below) was disappointing – assuming the article is correct, in terms of recognizing the need for and implementing risk management processes we really haven’t gotten nearly as far as I would have hoped, or expected, or thought. Perhaps that is so because, although the need for risk management processes is obvious or intuitive, or in my view it should be obvious or intuitive, you have to actually schedule and spend time to perform risk management – you have to make a conscious decision to evaluate, design and implement appropriate risk management processes – and I find that in business (including governmental entities, nonprofits, public companies, and private businesses), except for actions or tasks that must specifically and directly be performed to design, produce, and market a product or service, people generally only perform a task or take an action, especially when they do not view that task or action as being directly tied to the making or marketing and offering of the product or service:

(1) If required to do so by law, regulation, rule or similar requirement, or

(2) If required or expected to do so by the consumers, or important or influential stakeholders or organizations, or the community or public, or

(3) Pursuant to the personal values, beliefs, morals or expectations of the business itself or of the person performing the task or action.

I follow articles and posts written by several very experienced and influential risk management and enterprise risk management professionals and organizations. Thus, information in the recent article in the Journal of Accountancy about the status of risk management took me by surprise as it indicates or at least suggests that the development and implementation of risk management processes is across the board less than I had assumed. At this point, knowledge and implementation of risk management or enterprise risk management processes should be well-recognized, accepted, and implemented, not only at public companies, but also at governmental entities, nonprofits, and private businesses. Here is the link to the Journal of Accountancy article: https://www.journalofaccountancy.com/issues/2018/sep/risk-oversight-can-inform-audits.html

Below in this blog post I have inserted six snapshots of information from the article. Although the article is less detailed than I would have wished, in terms of risk management, I would have expected not only much greater implementation of risk management processes, but also I would have expected that accountant auditors already would be taking the entity’s risk management processes, or lack thereof, into consideration. I have to say that the lack of progress in this regard seems ridiculous. 

What actions are required to bring about or achieve increased or even universal acceptance of the need to evaluate, design and implement risk management processes? Only time will tell. One answer is more laws, regulations, or rules mandating more broad and specific risk management requirements. That might be one of the solutions, and I can certainly see the need for more specific mandated risk management requirements and processes in certain high-risk situations, or in certain situations where there is potential significant risk to an innocent third-party (such as a consumer or employee) and where that risk is controlled or can be controlled only by a third party such as a manufacturer or employer. 

The typical approach is to enact more laws, regulations, or rules mandating more broad and specific risk management requirements. Let me suggest another answer or solution. For the most part a business only has responsibilities to its shareholders (and sometimes to prospective shareholders), and, in appropriate circumstances, such as product liability or environmental contamination as examples, there can also be legal responsibilities to not cause harm to other people.

However, other entities exist which have responsibilities and perhaps influence that are broader, such as, for example, governmental and nonprofit entities and organizations. Let me suggest that although enacting more broad and specific risk management requirements on public companies is one approach to bring about increased risk management processes and activities, and perhaps that approach is necessary, a more or equally constructive approach is to educate the public at large and other stakeholders, and to lead by example, particularly in the context of governmental entities which enact and impose specific risk management requirements upon others.

Thus, I suggest that governmental entities lead by example, and that they not only evaluate, design and implement their own risk management processes, but then also report to the public what the governmental entity is doing in the context of risk management evaluation, design and implementation, thereby creating a heightened awareness and expectation level for all, including for governmental entities, public companies, nonprofits, and private businesses.

I referenced above governmental entities and nonprofits as having responsibilities and perhaps influence that are broader and that can exceed those of businesses in general. That is, both governmental entities and nonprofits have responsibilities that are for the broader public benefit.  And there are other institutions and industries or professions – for example, influential institutions or entities such as mid- and higher-level education, the media and the press, and medical or healthcare institutions and entities – each of which can and should be a leader, and can enhance or heighten the public’s awareness and expectations about risk management and risk management processes, in addition to evaluating, designing and implementing their own risk management processes. It seems to me that this is a clear win all around for everyone. We just need some influential people and organizations to run with it. Are there any that are willing and interested in doing so? The alternative might be increased mandatory requirements or lawsuits. Risk management processes also are worthwhile to reduce liability and legal damages exposure. 

The following are six snapshots from the Journal of Accountancy Article, several times the words “some” and “may” are used – it is time to get past the “some” and “may” and use words that indicate and evidence definite and universal expectation and acceptance of the evaluation, design and implementation of risk management processes for public companies, governmental entities, nonprofits, and private businesses:

Snapshot 1:

Journal of Accountancy Sept 1 2018 article snapshot 1 Snapshot 2:

Journal of Accountancy Sept 1 2018 article snapshot 2

Snapshot 3:

Journal of Accountancy Sept 1 2018 article snapshot 3

Snapshot 4:

Journal of Accountancy Sept 1 2018 article snapshot 4

Snapshot 5:

Journal of Accountancy Sept 1 2018 article snapshot 5

Snapshot 6:

Journal of Accountancy Sept 1 2018 article snapshot 6

Best to you, David Tate, Esq. (and California CPA (inactive)), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com),

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, trade secrets, IP, and other disputes and litigation; and investigations
  • Probate Court Litigation: trust; estate; power of attorney; elder, disability, and dependent adult abuse and protection; and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights, governance, and investigations

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles,

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

 

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

 

Patenting for Start-Ups and More – Forwarding by Robert Hayden

I have provided a link below to a worthwhile, i.e., useful, article by Robert Hayden of the Royse Law Firm about patenting for start-ups. Read it if you are an early-stage or small to mid-size business, or if you simply have not been in tune with protecting your intellectual property rights and value. If you are not up to speed on this, you should be.

Here is the article link: https://rroyselaw.com/intellectual-property/agtech/patenting-for-start-ups/

Contact Robert, or me, if you need help with IP issues.

Best to you, David Tate, Esq. (and California CPA (inactive)), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, trade secrets, IP, and other disputes and litigation; and investigations
  • Probate Court Litigation: trust; estate; power of attorney; elder, disability, and dependent adult abuse and protection; and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights, governance, and investigations

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

Is Elon Musk needling the SEC – if so, is it actionable, unwise?

I have provided below links to two articles from yesterday, about new comments by Elon Musk in which he possibly needles the SEC or the recent claims against him. The articles assert that there was also a drop in Tesla stock price.

Is there a correlation between the comments and the Tesla stock price? There could be, but that question requires additional evaluation and evidence.

Are the comments actionable, i.e., unlawful? At this point I would say, most likely, no they are not directly actionable.

Are the comments indirectly actionable or could they cause an action to be brought in an indirect manner? Perhaps – consider that the board has a responsibility to take actions that are for the benefit of the company and its shareholders – There already is a red flag that Mr. Musk is prone to making public comments some of which can reflect negatively upon himself, or upon Tesla, or upon the Tesla stock price. At law the board, and probably one or more committees of the board possibly including the audit committee, have a responsibility, and a risk management responsibility, to take action to address, prevent, and remedy significant risks in certain circumstances. It is my understanding that the SEC also noted lapses by the Tesla board. Could an action, or a new action be brought against Tesla and its board for failure of oversight and action? I would say, yes, quite possibly so.

Are the comments unwise? In my view, I would say yes, definitely. Ask, what is to be gained by the comments that will benefit Tesla or its shareholders? Nothing that I can see. Additionally, the settlement with the SEC is not yet Court approved. The comments certainly don’t help the settlement approval process – the comments don’t help with the Court or with the SEC.

The Tesla board really needs to take action and get on top of this. Is the board willing to do this? Is the board sufficiently independent? Are any board members going to resign out of frustration or the board’s inaction? Is the board going to speak up, and possibly address these issues publicly? My view is that Mr. Musk needs to be helped with this. 

Below are the links to the two articles:

https://www.yahoo.com/news/teslas-musk-mocks-sec-judge-demands-justify-fraud-010454646–finance.html

https://techcrunch.com/2018/10/04/elon-musk-is-trolling-the-sec-on-twitter/?yptr=yahoo

Best to you, David Tate, Esq. (and inactive California CPA), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, and other disputes and litigation; and investigations
  • Probate Court Litigation: trust; estate; power of attorney; elder, disability, and dependent adult abuse and protection; and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights, governance, and investigations

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

Board understanding of culture and mood are pretty low – per NACD materials

Below I have provided a snapshot from NACD promotional materials that I received – the materials are Benchmark Your Board, with which I tend to agree, if the benchmark evaluation is done with meaningful detail, evaluation, and recommendations, and if the board then takes action to improve the board, and all levels of the organization. I find all of the statistics from the materials (see below) of interest; however, for the purpose of this blog post I am focused on the corporate culture section – earlier this year corporate or business or nonprofit or organization culture was heavily in the news, but these things tend to pass.

I don’t hear as much about culture now. But in my view, culture and values need to stay in the news as they are one of the keys to how the entity (i.e., the people in the entity) act or behave, and perform.

Notice, according to the materials, 87% of directors say that their boards have a high understanding of the tone at the top, but is that true and what does that really mean; only 35% of directors say that their boards understand the mood in the middle, whatever that means, but nevertheless, the percentage is very low; and only 18% have a high understanding of the buzz at the bottom, again whatever that means, but the percentage is very low. These seem like failing grades, evidencing, in addition to other things, that board members need get out and visit and mingle at the facilities more.

NACD Benchmark Your Board promotion stat. page

And here are additional materials from prior posts:

Organization Culture Compass Circle

OVERVIEW OF A RISK MANAGEMENT PROCESS THAT YOU CAN USE 03162018

Audit Committee 5 Lines of Success, Diligence, and Defense - David Tate, Esq, 05052018

COSO Enterprise Risk Management Framework ERM Components and Principles

Best to you, David Tate, Esq. (and inactive California CPA), Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.  My blogs: trust, estate, elder abuse and conservatorship litigation http://californiaestatetrust.com, D&O, boards, audit committees, governance, etc. http://auditcommitteeupdate.com, workplace http://workplacelawreport.com

David Tate, Esq., Overview of My Practice Areas (Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com)

  • Civil Litigation: business, commercial, real estate, D&O, board and committee, founder, owner, investor, creditor, shareholder, M&A, and other disputes and litigation; and investigations
  • Probate Court Litigation: trust, estate, elder abuse, and conservatorship disputes and litigation
  • Administration: trust and estate administration and contentious administrations representing fiduciaries and beneficiaries
  • Workplace (including discrimination) litigation and consulting
  • Board, director, committee and audit committee, and executive officer responsibilities and rights; and investigations

Royse Law Firm – Overview of Firm Practice Areas – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation as this is my primary area of practice)
  •             Business & Commercial
  •             IP – Patent, Trademark, Copyright, Trade Secret, NDA
  •             Accountings, Fraud, Lost Income/Royalties, Etc.
  •             Internet Privacy, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, D&O, Board/Committee, Shareholder
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions, Including AgTech and HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.