Facilitating Auditing’s New Early Warning System: Control Disclosure, Auditor Liability and Safe Harbors

This Article considers the interplay between new auditing standards governing audits of internal control over financial reporting and pre-existing legal standards governing auditor liability for audit failure. The interplay produces skewed liability incentives that, if unadjusted, threaten to impair the objective of this new control-audit regime. The regime’s objective is, in part, to provide an early warning to financial statement users when current financial statements are reliable but control weaknesses indicate material risk of a company’s future inability to produce reliable financial statements. To be meaningful, auditor disclosure of material weaknesses and potential effects is necessary. While liability rules under Section 11 of the Securities Act of 1933 will reinforce auditor incentives to provide this disclosure, liability rules under Section 10(b) of the Securities Exchange Act of 1934 will discourage auditors from providing disclosure because doing so likely makes them primary actors subject to liability rather than secondary actors not subject to liability. To address this skewed interplay between new auditing standards and pre-existing legal liability rules, the Article suggests developing a safe harbor system to protect from Section 10(b) liability auditor disclosure of forward-looking information necessary to give the early warning system meaning. The Article gives a comprehensive account of new auditing standards, noting interpretive questions, and showing a system entirely dependent on extensive auditor disclosure. It then explains how the new system expressly nullifies existing case law under Section 11 by substantially expanding required auditor disclosure of internal control conclusions and how it probably nullifies existing case law under Section 10(b), including the Supreme Court’s landmark 1994 case, Central Bank, that generally insulated auditors from Section 10(b) liability. These effects, remarkable on their own, pose limits on the early warning system’s promise and the Article suggests using safe harbors to overcome them. The Article also offers broader but brief criticism of current preoccupation with control effectiveness as the key to reliable financial reporting evident in auditing’s otherwise appealing new early warning system