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  • Kirk Hartley

FASB and IASB Failing to Achieve Convergence – Possible Consequences of Stall and Delay

Stall and delay. It’s a time honored litigation technique for some defendants, but a technique that may not be wise, as evidenced by the many advocates of early case resolution and admitting fault when bad things have happened. In short, if the news is bad, it’s better to deal with it and move on, as has been highlighted in studies of the best ways to cope with medical malpractice. Others might argue, however, that delay will soften the blow because delay creates time to try to manage expectations of observers and perhaps to set aside more money to cover losses.

The stall and delay technique apparently also applies to changes to accounting standards. Specifically, the International Accounting Standards Board (IASB) and its US counterpart, the Financial Accounting Standards Board (FASB), have been talking for years about achieving "convergence" of their standards. Those talks are of concern to many actual or potential defendant banks because accounting standards could create recognition of more losses, and attendant consequences in terms of regulatory focus and litigation. The Financial Times pointedly highlighted this morning the failure of FASB and IASB to achieve convergence on the accounting standards applicable to banks with impaired assets (i.e. bad loans). The article highlights very pointed comments this week from IASB’s delegate to the FASB team, essentially saying FASB is stalling because its constituents don’t want the changes that would lessen their discretion in accounting for bad loans.

From various perspectives, one might debate whether it is "good or bad" that delays are occurring in the convergence of accounting standards for impaired assets. Certainly some bankers hope that delay will aid them if non-performing loans can become performing (or less under water) through the passage of time and the improvement of national economies. On the other hand, the delays ultimately may hurt the banks more deeply if delays end up with a larger rash of loan delinquencies that become so obvious they must be recognized en masse. Ultimately, the point here is that the stall and delay tactic is not without risk. Indeed, some defendants in asbestos litigation ultimately fell into bankruptcy because they refused to acknowledge growing realities of claims until they became so large that they had to be admitted under FAS 5, and then the large admission resulted in securities lawsuits (think Halliburton) or filing for chapter 11. Time will tell if stall and delay backfires for some banks.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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