The EGC designation, established under the Jumpstart Our Business Startups (JOBS) Act of 2012, makes it easier for small and growing businesses — specifically those on track for an initial public offering — to attract investors and access capital by relaxing regulatory requirements and cutting some red tape. There are a number of benefits to a registrant being classified as an EGC – see Protiviti’s Guide to Public Company Transformation for what they are.
The original law established a revenue cap of $1 billion for a company to qualify as an EGC, but provided for that cap to be adjusted every five years for inflation. The Securities and Exchange Commission (SEC) made the first adjustment in April 2017, raising the revenue cap to $1.07 billion.
Another provision of the JOBS act was a mandate for the PCAOB to report via white papers, semiannually, on the extent to which EGCs actually benefitted from regulatory relief, and any unintended consequences stemming from the more permissive environment. The purpose of the PCAOB’s white papers is to provide general data about EGCs to inform the analysis contained in PCAOB rulemaking releases regarding the impact of applying new standards to the audits of EGCs.
The latest white paper, published in March 2017, found that of 1,951 companies reporting as EGCs in the 18 months prior to the reporting period, more than half (51 percent), received an explanatory paragraph in their most recent auditor’s report expressing substantial doubt about the company’s ability to continue as a going concern. Equally important, within that group of 1,951 EGC filers, 1,262 provided a management report on internal control over financial reporting in their most recent annual filing, and 47 percent – nearly one-half of all EGC filers – reported material weaknesses.
Protiviti explores the findings in the PCAOB’s March white paper at length in a recent Flash Report, but I wanted to highlight a few of the takeaways here.
First and foremost, while certain regulatory exemptions and benefits may be attractive, they do not mean that EGCs should accept or minimize issues surrounding potential findings of material weaknesses. These deficiencies in internal control over financial reporting may undermine a company’s reputation and reduce company value, to say the least.
The risk is real and should be addressed proactively. Protiviti has developed a financial reporting risk profile (FRRP) to identify financial reporting issues in advance and manage them to avoid potential financial restatements.
An effective FRRP focuses on six areas: accounting principle selection and application, estimation processes, related-party transactions, business transaction and data variability, sensitivity analysis, and measurement and planning. The underlying objective is to identify the most likely areas of potential misstatements and apply the appropriate oversight and control.
Second, EGCs should take the steps necessary to document key business processes so that these processes are well-defined and repeatable, reducing reliance on ad hoc activity by key employees. These processes may include a fair amount of financial reporting; related policies and activities, such as those that aid in the preparation of financial schedules for external auditors in the support of audits; filings; executive compensation; and employee benefits. Pre-public companies should design and implement a process for documenting conclusions on reporting and accounting matters.
Internal controls and documentation are critical because they minimize the risk of material weaknesses in the organization’s financial reporting. Consider the effects of just one material weakness: erosion of shareholder confidence, potential share price reduction, a fair amount of distraction throughout the organization, reduced brand quality, and significant remediation costs.
The high incidence of material weaknesses among EGCs is disappointing but, in many cases, generally preventable. It is important not to wait until the first auditor attestation to address potential issues. Many of the preventive measures – governance protocols, fraud controls, internal controls over financial reporting – should be in place prior to the company’s first public filing (e.g., 10Q filings, 302/906 certifications), and others should be in place prior to the initial management assertion on the effectiveness of internal control over financial reporting, as required by Sarbanes-Oxley Section 404(a). If these areas have not been addressed and the first public filing is upcoming, the organization should prepare itself by putting in place a robust remediation program. See the Protiviti Flash Report for additional points and information.