The Black & Decker Corporation
701 East Joppa Road
Towson, Maryland 21286
November 30, 1999
Mr. Jonathan G. Katz
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549-0609
Re: Audit Committee Disclosure; File No. S7-22-99
Dear Mr. Katz:
The Black & Decker Corporation welcomes the opportunity to comment on the proposed amendments regarding Audit Committee Disclosure. Our intention is to respond to selected portions of the proposed amendments. Silence as to portions of the proposed amendments should not be viewed as acquiescence, rather prioritization of our comments.
Part 240 - Disclosure of Audit Committee Charter and Safe Harbor Disclosures
Our Audit Committee ("Committee") long ago adopted a charter for its existence and responsibilities, establishing minimum guidelines by which the activities of the Committee are conducted. However, actual functional activities of the Committee are often broader and deeper into the financial controls framework than the Committee's charter may require. Under the proposed amendments, it may be likely that "boiler-plate" charters would be adopted, thus minimizing the scope to the agreed upon disclosures and possibly deteriorating from the control framework oversight mission of audit committees. We question the value of minimum disclosure requirements and the ability of such disclosures to add qualitative information to the investing community. We believe this language would add to the length and not be constructive to filed information.
Further, providing this information only once in every three years would only lend to the confusion and significance of the audit committee's responsibilities which correspond to each reported year. We suggest the SEC consider summary language describing the audit committee's role and responsibility, included with the proxy, as more informative and appropriate. As such, the role and responsibility of the committee would be acknowledged by each director in the filing of the annual report on Form 10-K. This may be particularly relevant in light of other proposals suggesting the Board of Directors is responsible for determination of financial literacy and independence of audit committee members.
Independence of Audit Committee Members
Disclosure over the lack of "independence" by an audit committee member may be of value; however, we believe the independence standard should be evaluated. While meritorious in concept, true "independence" may not be in the best interest of shareholders or the investing community. For instance, current proposals focus on independence matters such as family relationships, current and former employment and current business relationships. However, there is no mention of direct stock or other ownership by the director, which we suggest may affect independence but is generally desirable. The investing community encourages direct company ownership and challenges the lack thereof in regard to the Board of Directors. We question how independence is affected by direct ownership vs. business relationships.
On the other hand, current independence standards of the AICPA allow for auditor/consultant relationships but no direct investment by "independent auditors". It would seem current proposals may require a higher level of "independence" of audit committee members. Further, under the proposals each standard would be different as measured by each respective company's board of directors. This would lead to a lack of conformity in the disclosure and may be inappropriately interpreted by the investment community.
Part 229 - Audit Committee Report
We commend the general direction of the revised language in the SEC proposal. However, we question the value added to the financial reporting oversight process or investing community's analysis of the integrity of financial reporting through the proposed statement made by the audit committee. We believe the audit committee's role is not an attestation function, rather an overseer of the control framework of the corporation. This process orientation does not lead to an attestation, rather involvement in the activities that support the financial reporting process.
Current proposals require clear delineation of the committee's responsibilities as a subset of the Board of Directors to be outlined in the form of an audit committee charter. A lack of compliance noted during the conduct of their responsibility, such as knowledge of a material misstatement or non-GAAP accounting, would have ramifications calling for resolution prior to the filing and signing of Form 10-K. Therefore, only disclosures which contain positive affirmations would be provided. We question the value that would be added in making any such further disclosure. By virtue of the nature of any lack of compliance with current or proposed requirements, the investing community again is likely to see "boiler-plate" language.
The role of audit committee members as further delineated with increased responsibility placed upon it (as in an attestation statement) would presumably create a further possibility of associated litigation. With this in mind, we would highlight to the Commission the challenge that corporations may have, to attract the appropriate members to such roles.
Part 210 - Pre-Filing Review of Quarterly Financial Statements
While our Corporation has employed the timely review process by external auditors, we strongly believe the requirements for independent auditor review letters and their inclusion in Form 10-Q be scrutinized further by the SEC for evidence of actual demand for such services by corporate management or other relevant participants. The value added by timely quarterly reviews may promote constructive relationships for timely exchange of information with independent auditors: however, the issuance of a review report could be misleading to the investing community, as the reduced nature and scope of such reviews may be unclear.
In regard to the filing of a review letter, we question the quantitative value added to a registrant's established value through any premium, real or perceived, by "further comfort" of reported results accompanied by a review report. Rather, the inclusion of a report may, in certain instances, negatively affect the financial market's preference for timeliness in financial reporting.
Should any questions or comments arise in regard to the aforementioned comments, please do not hesitate to contact me.
Steven E. Howarth
Vice President & General Auditor