May 30, 2002

Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Attention: Mr. Jonathan G. Katz

Re: Proposed Acceleration of Periodic Report Filing Dates and Disclosure Concerning Website Access to Reports - File No. S7-08-02

Ladies and Gentlemen:

We submit this letter in response to the request of the United States Securities and Exchange Commission (the "Commission") in Release No. 33-8089 (April 12, 2002) (the "Release") for comments on proposals to accelerate the filing of periodic reports under the Securities Exchange Act of 1934 (the "Exchange Act") and to require disclosure concerning access to such reports on the registrant's website.


The signatories to this comment letter are representatives of ten leading law firms with offices in Silicon Valley and/or San Francisco and a member of the faculty of Stanford Law School. In addition, in-house lawyers of four public companies whose headquarters are located in Silicon Valley participated in the preparation of this comment letter, providing valuable insights from the companies' perspectives. The views as reflected in this letter constitute a consensus of our individual perspectives. They do not reflect the official positions of the law firms or other organizations with which we are affiliated, or the clients of any of our law firms. Because this is a consensus document, we individually reserve the right to express views that may not be fully reflected in this letter.

We have commented on numerous Commission proposals in the past, including the "aircraft carrier" proposal (Rel. No. 33-7606; Comment Letter dated October 8, 1999), the proposal to amend Form S-8 (Rel. No. 33-7506; Comment Letter dated April 23, 1998), and the executive compensation disclosure rules (Rel. No. 33-6940; Comment Letter dated August 24, 1992). We have also requested and received a number of interpretive letters, including three letters regarding the Section 16 rules (Interpretive Letters to Joseph A. Grundfest et al. dated April 25, 1991, August 19, 1991 and March 4, 1992). We are often referred to as the "Grundfest Group."

The law firms with which we are affiliated have, in the aggregate, been involved with well over half the capital formation activity in Silicon Valley. Each of our law firms represents a number of high-technology public companies and, as a group, we represent well over half of the market capitalization of publicly traded Silicon Valley issuers. We are individually familiar with the issues that arise in the preparation and filing of reports under the Exchange Act, and we believe that we have a broad insight into the workings of the public company reporting process in the high-technology industry, particularly as it has developed in Silicon Valley.


A. Concurrence with the ABA Letter

Except for the few instances in which this letter specifically suggests different views, we concur with the views set forth in the comment letter to be submitted by the Subcommittee on Disclosure and Continuous Reporting of the Federal Regulation of Securities Committee of the American Bar Association's Section of Business Law (the "ABA Letter"). As discussed at length in the ABA Letter, we believe that it is unclear whether the benefits of this proposal will outweigh the costs. In particular, we are concerned that accelerating the filing deadlines for Forms 10-K and 10-Q (and particularly the Forms 10-Q) may meaningfully diminish the quality of disclosure provided to investors, especially in light of the other significant substantive changes that the Commission has recently proposed to the Exchange Act reporting scheme, particularly with respect to Management's Discussion and Analysis of Financial Condition and Results of Operations ("MD&A").1 We also agree that the two alternatives suggested in the ABA Letter would be much preferable to the Commission's proposal. While we concur with the views set forth in the ABA Letter, we would like to raise several issues that are not raised in the ABA Letter or that differ somewhat from the views expressed in the ABA Letter.

B. If Adopted, Changes Should be Phased-In

If the Commission decides to accelerate the filing deadlines, we strongly urge the Commission to phase-in any changes and not to adopt the accelerated 60-day and 30-day filing deadlines immediately as proposed. As discussed in greater detail below, it is not clear that issuers will be able to comply with accelerated filing deadlines, particularly as issuers are simultaneously adjusting to the many other substantive changes that the Commission has recently proposed to the Exchange Act reporting scheme. We suggest that changes, if any, to the filing deadlines be phased-in in ten-day increments for Forms 10-K and five-day increments for Forms 10-Q, and that no change be made in the filing deadlines until registrants have had at least a year of experience with responding to the recently proposed changes to MD&A2 and to the Form 8-K triggers.3

We also recommend that at the end of each phase-in period the Commission review the costs and benefits of the accelerated filing deadlines that have been adopted and the likely costs and benefits of the next steps in the phase-in plan. If, at the end of each such review, the Commission determines that further acceleration of the filing deadlines is warranted, the Commission can proceed to do so. This phase-in approach is consistent with how the Commission has in the past made significant changes to the Exchange Act reporting scheme,4 and will help avoid unintended adverse consequences if the filing deadlines are accelerated and issuers are unable to comply with the new deadlines.

C. If Adopted, Select Affected Issuers By S&P 500 Status or Revenues

If the Commission decides to accelerate the filing deadlines for Forms 10-K and 10-Q, either as proposed or in some alternative manner, we recommend that the Commission adopt different criteria to determine which issuers would be subject to accelerated reporting. We suggest that the Commission define the term "accelerated filer" to mean companies that are included in the S&P 500 as of their prior fiscal year end. These companies make up the vast bulk-approximately 75% of the market value-of all public companies, and are generally companies with the size, experience and reporting infrastructure necessary to respond to increasingly complex and lengthy disclosure requirements in a shortened time frame.

Alternatively, annual revenues would provide a rational metric to determine accelerated filer status. We believe that revenue, rather than public float, provides a better measure of which issuers are sufficiently seasoned so as to be capable of dealing with accelerated reporting. Revenue also provides a better measure of the companies that have the ability to absorb the additional expense and overhead that will be necessary to comply with any accelerated filing deadlines and substantive changes to the Exchange Act reporting scheme. We propose $500 million in annual revenue, plus at least one year of public company reporting experience, as a reasonable threshold for making issuers subject to any accelerated filing deadlines.


Accelerating the deadlines for filing periodic reports, during a period when companies are implementing new disclosure requirements and adapting to the need to improve internal review processes for financial reporting and periodic disclosure, is likely to place an unreasonable burden on companies. Our strong preference and recommendation would be to leave the filing deadlines as they are. If, however, the Commission decides to proceed with shortening the deadlines to 60 days for Form 10-K and 30 days for Form 10-Q, we strongly urge it to implement the change in a manner that allows registrants to adjust to the new deadlines and allows the Commission to assess the implications of shorter filing deadlines.

We recommend that the Commission postpone changes to the filing deadlines until registrants have had at least a year to become accustomed to the various enhancements to the financial reporting process that the Commission has proposed during the past six months. We further recommend that the Commission thereafter implement the new deadlines through a phase-in process, with the deadline for Form 10-K and Form 10-Q being shortened in increments of 10 days and 5 days, respectively, in a given year. After at least a year of operation under each incrementally shortened deadline, we suggest that the Commission conduct a review to determine whether the benefits of the shortened deadlines and of further shortening the deadlines are likely to outweigh the costs, based on whether registrants have been able to meet the new filing deadlines consistently, whether they have been able to implement the processes and analyses necessary to improve the quality of financial reporting, whether there has been a significant decline in the quality of review and disclosure in periodic reports, and whether the additional burden on companies due to the acceleration of the filing deadlines is reasonable. We recognize that the most important of these costs - the risk of a decline in the quality of review and disclosure - may be difficult or impossible to measure accurately, particularly in the short term. Nonetheless, it is important to try to monitor that risk.

Past experience with fundamental changes in the disclosure process, such as the implementation of EDGAR, suggests that a phase-in period is useful to allow companies to understand how significant changes may affect them, make adequate preparations for these changes and become accustomed to their effects, as well as allowing the Commission to evaluate the effects of the changes. While we believe that there are significant drawbacks to any acceleration of the deadlines of the magnitude being proposed by the Commission, we believe that a phase-in would be a significant benefit to companies that undoubtedly will need to adopt new practices, reorder priorities and, in many cases, increase staffing levels in order to enable them to prepare their periodic reports in a compressed timeframe.

A. The Disclosure Process That Follows the Initial Release of Earnings Is Inherently Difficult to Accelerate

While advances in technology have to some extent enabled companies to prepare their quarterly and annual financial statements in less time than in the past, the preparation and review of MD&A and other disclosure sections continues to involve the same types of purely human activities, such as reading, analyzing, discussing, drafting and revising, as the process involved before the invention of the PC, the spreadsheet and the relational database. Although such tasks have benefited from innovations such as word processing and e-mail, we believe that these benefits have been more than offset by legal, accounting and regulatory developments that have expanded the amount of disclosure and have led companies to follow more rigorous internal procedures in the preparation of such disclosure than was required in the past.

As a result, although many of the companies that we represent inform us that they may be able to meet some sort of accelerated filing deadline, the deadlines that are currently being proposed may create an undue amount of tension between the need to maintain quality of disclosure and the need to attend to the numerous other business duties that are performed by personnel whose participation is essential to the disclosure process. Most of the time that elapses from the completion of financial results to the filing of a periodic report involves review of disclosure sections by various parties whose input is essential to the completeness and accuracy of the disclosures. These parties typically include the members of the finance and accounting staff who undertake the principal drafting role, members of the management team who provide substantive input required to ensure that the report accurately reflects the company's business operations, members of the company's legal counsel and outside auditors, and members of the company's board of directors.

A report will typically undergo three or more review and revision cycles, each involving a broader group of participants, starting with the internal finance and accounting staff and ultimately involving the management team, the outside auditors and the company's legal counsel. Each of these cycles may take up to one week, particularly during the later stage when the group of participants expands beyond the company's internal staff to include auditors and outside legal counsel. By necessity, the revision process is iterative, with each set of changes raising new questions from an expanding group of reviewers, who may raise different questions about the reasons for changes and the possible trends highlighted by those changes, as well as refining their understanding of the company's business. These dynamics are most complicated where there are offsetting trends or multiple explanations for period-to-period changes in results.

After the foregoing parties have provided their input, an additional week to 10 days may be needed to circulate the report to the audit committee or board of directors. Independent directors are taking an increasingly active role in the financial reporting process, and that role will be more difficult to fulfill if the time allocated to this stage of the process is compressed. Additional time is required to have the report and its exhibits EDGARized, check the EDGAR proof, and resolve last-minute issues regarding disclosures or exhibit filings. Based on the process described to us by several of our clients, we estimate that, beginning at the time of the earnings release, the minimum time needed to prepare and file periodic reports is approximately six to seven weeks in the case of the Form 10-K and two to three weeks in the case of the Form 10-Q; many registrants may require more time than these minimums.

Adopting shorter filing deadlines could require companies to make difficult choices. At a minimum, companies would need to reprioritize tasks, reassign staff and operate on parallel tracks for different tasks. A company might also need to eliminate one or more of the review cycles, which in most cases is likely to result in a decline in the quality of disclosure. While a company could complete some of its work prior to the closing of the books for the period, the company would risk having to redo the work after the close. A company could also follow a process similar to the preparation of an IPO prospectus, during which members of the company's management team abandon their principal management duties for a week or two to participate in an intensive drafting effort. This might preserve the quality of disclosure, but only at the expense of the company's business operations. Companies, particularly smaller ones, could perhaps accelerate the initial preparation of financial statements and MD&A by hiring additional finance, accounting and legal staff, but doing so would add significant costs to the public reporting process without doing much to shorten the time it takes to obtain input from senior managers, independent accountants, legal counsel and outside directors. Smaller companies may also find that their outside auditors are unable to provide them with additional resources earlier in the reporting cycle, when the auditors may be committing most of their resources to clients that historically have had the resources to complete their financial statements more quickly than smaller companies.

A gradual phase-in of shorter deadlines is necessary to allow companies to adapt to the compressed periods and develop new internal processes designed to preserve the quality of disclosure without undue disruption to their underlying business. It is also necessary to enable companies and their outside auditors to work out arrangements that enable the auditors to balance smaller companies' needs against those of larger companies. It would also provide the Commission with an opportunity to understand how each incremental change affects the disclosure process and to develop a more informed view as to what deadlines strike the best balance between the need to provide investors with timely information and the need to preserve the overall integrity of the disclosure process.

B. Available Data Suggests that the Proposed Deadlines Would Be Unreasonably Burdensome

Currently, there is little data to suggest that companies can meet the proposed shortened deadlines without a significant degradation in the quality of their disclosures. While the Release, as well as our own discussions with some of our clients, indicates that many companies would be able to prepare earnings reports and periodic filings on a cycle that is faster than the current rules require, even if one accepts the premise that 90 and 45 days are too long, there is no evidence currently available to demonstrate that 60 and 30 days are the appropriate filing deadlines.

We note that the American Society of Corporate Secretaries has submitted a comment letter reporting the results of a survey of its member companies regarding the filing deadlines proposed in the Release.5 According to the letter, fewer than half of the respondents stated that they would be able to meet the proposed deadlines, with the remainder being divided roughly equally between companies that believe they could not meet the proposed deadlines and companies that are not sure whether they can meet the proposed deadlines. More than two-thirds of the respondents indicated that they expect the proposed deadlines to result in a reduction in the precision of reported information; this group includes a number of the respondents that indicated that they would be able to meet the proposed deadlines.

Data cited by the Commission in its recent releases also indicates that the proposed deadlines are too short. The Release itself reports that, according to data collected by the Office of Economic Analysis, over the past 10 years, registrants on average issued their year-end earnings announcements approximately 43 days after the fiscal year end and their quarterly earnings announcements approximately 27 days after the end of the quarter.6 If the deadlines were shortened as proposed, the average issuer would have 17 days to prepare and file its Form 10-K and only three days to prepare and file its Form 10-Q following the release of earnings for each period. Furthermore, in Release No. 33-8098, the Commission has proposed changes to the MD&A requirements that will add substantially to the reporting burden. According to that release, the Commission estimates that the new disclosure requirements will result in six pages of additional text and, for each filing, will consume 56 hours of labor by company personnel and an unspecified number of hours by auditors, outside counsel and audit committee members. We believe that these estimates may be very conservative, particularly during the first few years when these new disclosure requirements are in effect, and particularly as applied to complex enterprises.

Although these data are not precise indicators regarding the ability of registrants to meet the proposed deadlines, they highlight the need for the Commission to phase in the deadlines so it can evaluate which deadlines offer the best balance between the desire for more timely disclosure and the realities that public companies face.

C. Many Types of Issuers Will Have a Particularly Difficult Time Meeting the Shorter Deadlines

We believe that it is difficult to draw a bright line, based on public float or similar measures, that will reliably identify those companies that should be able to comply with the accelerated deadlines without an unreasonable burden. Smaller companies, many of which may have public floats far exceeding $75 million, have fewer resources to devote to the financial reporting process. They lack extensive finance and accounting staffs, they may not be given the highest priority by their outside auditors, and they rely on outside counsel to handle much of the responsibility that a larger company would assign to in-house counsel. They may also lack the information technology systems that enable larger companies to close their books a short time after the end of a quarter. Obtaining the additional resources that may be necessary to comply with accelerated filing deadlines could appear unreasonably expensive when viewed in proportion to such companies' annual revenues or earnings. For this reason, as discussed in Section IV of this letter, we are suggesting that the test for selecting accelerated filers be based on S&P 500 status or revenues rather than public float, and that the revenue threshold be significantly higher than the proposed public float threshold.

At the same time, larger companies may have greater resources, but they are also likely to have more complex structures and a higher proportion of operations that take place outside the U.S. Many of such companies have wide distribution networks and are required to gather point-of-sale data from large numbers of distributors, many of which may be overseas. Such companies are likely to encounter unavoidable delays in closing their books and completing their annual audits. Their businesses, results of operations and financial condition tend to be more difficult to explain clearly in MD&A and other disclosure sections, and the preparation of their disclosure documents require input from a wider array of personnel.

A phase-in of deadline acceleration would help different types of issuers identify and address the difficulties they are likely to face during the reporting process and better enable them to adjust their internal procedures in order to meet the new deadlines.

D. Present Circumstances Make it Particularly Difficult for Companies to Adjust to Accelerated Filing Deadlines

Over the past several years, particularly in the wake of the matters that have come to light following the collapse of Enron, companies have been properly placing increasing emphasis on internal controls and subjecting their financial disclosures to more rigorous review by their internal staff, audit committees, legal counsel and outside auditors. They are paying closer attention to providing meaningful financial disclosure that more clearly explains the relationship between the financial statements and the underlying business. In addition, the Commission is seeking more detailed disclosure by issuers, with less reliance on boilerplate, and has recently issued several releases that call for additional disclosure, such as additional information regarding liquidity, related party transactions and critical accounting policies and estimates. For many of the same reasons, following the experience of Arthur Andersen, auditors are engaging in enhanced review procedures, particularly for companies with relatively complex reporting attributes - the very issuers that will have an inherently difficult time in meeting accelerated filing deadlines. These developments should benefit the investing public, but they have the unavoidable effect of lengthening the time that companies require to complete their financial disclosures.

In the immediate future, companies may also encounter delays in the reporting process as a result of the difficulties currently faced by Andersen. Many of Andersen's clients are currently in the process of changing auditors, as will all of Andersen's remaining clients if the firm is unable to remain in operation. A company's new auditors will need time to familiarize themselves with the company's business and accounting practices; this process may proceed more slowly when a large number of former Andersen clients are being absorbed by the other accounting firms.


We support the Commission's desire to exclude some companies from the proposed new reporting scheme, but we believe that the Commission's proposed definition of "accelerated filer" is over-inclusive. While it includes companies "that are least likely to find the change overly burdensome," as the Commission intended, it also includes many companies for which the burden of accelerated filing would be excessive. If accelerated filing is required of companies that cannot readily comply, the quality of their disclosure may suffer, they may incur additional costs and they may miss more filing deadlines. We believe that these predictable side effects of an overbroad definition should be avoided, and that the Commission should adopt an alternative definition of accelerated filer if it proceeds with its proposal.

In defining accelerated filers, the Commission should seek a measure that appropriately balances the costs and benefits of making accelerated filings. The Commission's currently proposed definition borrows concepts from the Form S-3 eligibility requirements, which were set with different principles in mind. A $75 million public float and timely filings for the prior 12 months are useful indicators that a company is well known in the marketplace and should be allowed to incorporate material by reference into a prospectus if it chooses to issue securities under a registration statement. However, among companies that are eligible to use Form S-3, the benefits and costs of accelerated filing of periodic reports vary widely. The public benefits of accelerated filing are greatest when it is applied to large, mature companies. These companies are usually widely held and represent a large portion of the total market capitalization of all U.S. publicly traded companies. In addition, the costs of accelerated filing compliance by these companies are relatively low, because they are the companies most likely to have experienced and sophisticated in-house legal, audit and compliance teams in place. By contrast, smaller, less mature companies represent in the aggregate a small portion of the total market capitalization of all U.S. publicly traded companies, while the costs of accelerated filing compliance for these companies will be much more significant. To focus the definition of "accelerated filer" on achieving the maximum benefit to investors with the minimum adverse impact to public companies, we recommend that a different standard be used for determining who should be an "accelerated filer."

There are a number of alternative measures that could be used to achieve the objectives of the proposed rules in an efficient, cost-effective manner. We recommend that "accelerated filers" should be those companies that have been included in the S&P 500 Index. These filers represent approximately 75% of the aggregate market capitalization of all U.S. publicly traded companies and cover a diversity of industries. They are also the companies best suited to file on an accelerated basis because they are mature organizations with seasoned personnel and compliance systems. We propose that a company would first become an accelerated filer at the beginning of the first fiscal year after its selection for inclusion in the index, and would remain an accelerated filer until it ceased to be a reporting company, became a small business issuer or otherwise successfully petitioned the Commission to change its status.

As an alternative to using the S&P 500 Index or another index that consists of mature companies that represent a significant percentage of U.S. publicly traded companies, the Commission could consider a definition of accelerated filer based on annual revenue. While using the S&P 500 Index would be our recommendation, we believe that, in the alternative, revenue is a better measure of a company's maturity than market capitalization, and it is less volatile. Typically, a company that attains a high level of revenue has done so over a considerable time, in which it must also have developed mature financial and reporting systems and experienced legal, accounting and compliance personnel. Such a company is more likely to be in a position to file periodic reports with the Commission on an accelerated basis than are companies with lower annual revenues. Companies with relatively low levels of revenues, even if they are mature companies, should not be required to make accelerated filings because they are unlikely to have the resources to devote to a new challenge of this sort. Accordingly, we believe that an alternative definition of accelerated filer would be any company that recognized revenue of $500 million or more in the immediately preceding fiscal year and has been a reporting person for more than a year.


We urge the Commission not to accelerate the filing deadlines for periodic reports. If, however, the Commission feels that it must make a change in the periodic reporting system, we generally support the alternatives proposed in the ABA Letter.

Further, if the deadlines are accelerated, either pursuant to the Commission's proposal or an alternative, we strongly urge the Commission to postpone implementing the new deadlines until such time as registrants have had at least one year following adoption of the Commission's proposed changes to MD&A and the Form 8-K triggers to become familiar with, and adjust to, the new substantive disclosure requirements. Following that one-year moratorium, it is critical that the Commission then phase-in the shortened deadlines incrementally and evaluate the effect of each incremental change before further reducing the time period within which periodic reports must be prepared and filed.

Finally, we suggest that the definition of "accelerated filer" be revised to use inclusion in the S&P 500 Index as the metric, rather than having a public float that meets the S-3 eligibility requirements. Alternatively, the definition could be based on annual revenues of $500 million or more and more than a year as a reporting company.

* * *

Thank you for your consideration of the foregoing.

Respectfully yours,

/s/ Joseph A. Grundfest

Joseph A. Grundfest
William A. Franke Professor of Law and Business
Stanford Law School
Stanford, CA 94305

By: /s/ Ann Yvonne Walker
Ann Yvonne Walker
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300

By: /s/ Paul A. Blumenstein
Paul A. Blumenstein
400 Hamilton Avenue
Palo Alto, CA 94301
(650) 328-6561

By: /s/ Horace L. Nash
Horace L. Nash
Two Palo Alto Square, 8th Floor
Palo Alto, CA 94306
(650) 494-0600

By: /s/ S. James DiBernardo
S. James DiBernardo
2000 University Avenue
East Palo Alto, CA 94303
(650) 331-8000

By: /s/ Nancy Wojtas
Nancy Wojtas
Five Palo Alto Square
Palo Alto, CA 94306
(650) 843-5000

By: /s/ Andrea Vachss
Andrea Vachss
One Front Street
San Francisco, CA 94111
(415) 591-6000

By: /s/ William D. Sherman
William D. Sherman
755 Page Mill Road
Palo Alto, CA 94304
(650) 813-5600

By: /s/ Simon M. Lorne
Simon M. Lorne
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071
(213) 683-9100

By: /s/ Lowell Ness
Lowell Ness
1020 Marsh Road
Menlo Park, CA 94025
(650) 614-7400

By: /s/ Linda M. DeMelis
Linda M. DeMelis
2800 Sand Hill Road
Menlo Park, CA 94025
(415) 854-4488

Additional Drafting Committee Members
James C. Creigh
Heike E. Fischer
Diane Holt Frankle
Michael J. Halloran
Sharon J. Hendricks
Marie Oh Huber
Henry Lesser
Katharine A. Martin
Jean McLoughlin
James L. Morrone
Eileen Duffy Robinett
Scott P. Spector

1 See, e.g., "Disclosure in Management's Discussion and Analysis about the Application of Critical Accounting Policies," Release No. 33-8098 (May 10, 2002). See also, e.g., "Commission Statement about Management's Discussion and Analysis of Financial Condition and Results of Operations," Release No. 33-8056 (Jan. 22, 2002); "Cautionary Advice Regarding Disclosure About Critical Accounting Policies," Release No. 33-8040 (Dec. 12, 2001); "Cautionary Advice Regarding the Use of `Pro Forma' Financial Information in Earnings Releases," Release No. 33-8039 (Dec. 4, 2001); "SEC to Propose New Corporate Disclosure Rules", SEC Press Release No. 2002-22 (Feb. 13, 2002) (announcing SEC's intention to, among other things, propose amendments for insider transaction reporting, propose amendments for mandated secondary market reporting, require issuers to publish periodic reports on their corporate websites, require issuers to add disclosure in MD&A about their critical accounting policies, and add 15 categories of transactions that are reportable on Form 8-K).
2 Id.
3 See SEC Press Release No. 2002-22 (Feb. 13, 2002) and "Form 8-K Disclosure of Certain Management Transactions," Release No. 33-8090 (Apr. 12, 2002).
4 See, e.g., phase-in of the EDGAR system. See also, e.g., Release No. 33-6231 (Sept. 2, 1980) (adopting revised requirements for MD&A) and Release No. 33-6349 (Sept. 28, 1981) (interpretive release on first-year's experience with revised MD&A).
5 Comment Letter from the American Society of Corporate Secretaries dated May __, 2002.
6 Footnote 27 to the Release.