Corporate Governance of the Financial Reporting Process (Portfolio 5506)


Leonard Wang

Former Assistant Director

Division of Enforcement, SEC

At a glance

I. Focus, Scope and Objectives of Portfolio
II. State Law Principles of Corporate Governance
III. Federal Securities Laws Principles of Corporate Governance
Introductory Material
IV. Theories of Legal Liability
V. Planning Points: Measures for Fulfilling Federal Responsibilities
VI. Summary of Directorial Responsibilities and Planning Points


This Portfolio explains and analyzes federal corporate governance requirements for the financial reporting process. Separately from principles of corporate governance under state law, federal law has developed a set of corporate governance principles, largely through investigations of financial reporting irregularities by the Securities and Exchange Commission (“SEC”). By explaining how this substantial body of relevant federal law has developed, the Portfolio enhances corporate directors' understanding of their responsibilities in the financial reporting process. The Portfolio also suggests ways that corporate directors may avoid running afoul of applicable law.

The requirements on which this work focuses are found primarily in the federal securities laws. The Portfolio discusses the federal corporate governance requirements for disclosure, the traditional guiding principle of federal securities regulation; certain procedural requirements, such as audit committee oversight of external auditors; and responsibilities of accountants and attorneys to report financial reporting problems up the corporate chain of command. In addition, the Portfolio identifies pertinent structural requirements under the federal securities laws, such as rules requiring director and Audit Committee independence. The foregoing requirements are generally well known to public companies and directors.

Perhaps less well recognized is the evolution of federal standards of performance for directors overseeing the financial reporting process. These standards have become more comprehensive and demanding than directors' state law fiduciary duties. The SEC sanctions directors for deliberate misconduct, reckless disregard of impropriety by management, and negligence in their oversight of corporate financial reporting and disclosure. By imposing sanctions for negligence, the SEC in effect has prescribed a duty of reasonable care for directors overseeing the financial reporting process. This Portfolio describes and analyzes the evolution of these federal performance standards.

The Portfolio also discusses an SEC investigative report called the Seaboard 21(a) Report, which offers potential regulatory leniency if a company under SEC investigation voluntarily cooperates with the agency. The criteria for leniency set forth in the report encourage public companies, among other things, to maintain a culture of compliance, the proper tone at the top, and sound internal controls. If a company wishes to avail itself of the potential for leniency, it should implement these measures. Consequently, the report exerts a strong influence on the corporate governance process.

Readers should appreciate that this Portfolio is intended first and foremost to be a practical aide to the directors and management of public companies, and not a traditional legal treatise. Consequently, the Portfolio is written in the vernacular as much as possible, and prioritizes comprehensibility for the layperson over technical legal considerations. This Portfolio should be cited as Bloomberg Tax Portfolio 5506, Wang, Corporate Governance of the Financial Reporting Process (Accounting Policy and Practice Series).

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