November 26, 2002
Mr. Jonathan Katz
Re: Proposed Rule: Disclosure Required by Sections 404, 406 and 407 of the Sarbanes-Oxley Act of 2002 (Release No. 33-8138; File No. S7-40-02)
Dear Mr. Katz:
In response to the Commission's request for comment as to whether a "financial expert" should have direct experience preparing or auditing the financial statements of reporting companies, or whether experience reviewing and analyzing such statements should be sufficient, FedEx Corporation respectfully submits the following.
A public company's audit committee oversees the internal preparation and outside audit of that company's financial statements. The audit committee itself neither prepares nor audits the financial statements. The Commission must consider the significant set of persons whose education and experience make them expert in the role required of an audit committee member, but who nevertheless have never prepared or audited financial statements.
For example, a recently retired Chief Financial Officer of a reporting company, whose career had advanced through the ranks of corporate finance, nevertheless may not be deemed a "financial expert" because he or she had no direct experience "preparing or auditing" financial statements. Likewise, a person who had served for a decade as the Audit Committee Chairman of a reporting company, and who was also the CEO of a large, respected public company, could be disqualified by a definition of "financial expert" that requires experience auditing or preparing financial statements. The foregoing examples could remain true even if the persons in question had spent years overseeing the preparation and audit of financial statements-precisely the responsibilities of an audit committee member-and possessed all the other required attributes.
We strongly urge the Commission to modify attribute "c" in the instructions to the proposed Item 309 of Regulations S-K and S-B so that persons with experience reviewing and analyzing financial statements can qualify as a financial expert. Accordingly, we recommend that attribute "c" read as follows:
This change is necessary to avoid unduly excluding otherwise qualified individuals simply for lack of narrowly defined occupational experience. This change is consistent with the Commission's approach of listing factors to be considered in the aggregate by a board of directors in making a determination of expert status. It is appropriate, in making such a determination, that a board evaluate the totality of an individual's educational and work-related credentials. We strongly support the Commission's recognition in the discussion section of the proposal that there are persons possessing the "requisite attributes and mix of knowledge and experience to qualify as financial experts, even though they may not have served in one of the specifically identified positions."
FedEx Corporation endorses and strongly supports the goals embodied in Section 407 of the Sarbanes-Oxley Act of 2002. It is important that audit committees of public companies possess the understanding necessary to monitor effectively the preparation and auditing of financial statements. We believe the change to the proposed definition of "financial expert" we recommend is consistent with the Commission's mandate under the Sarbanes-Oxley Act.