事件内容

1. 4月2日，瑞幸咖啡发布公告，承认虚假交易22亿元。瑞幸咖啡称，公司的独立特别委员会经调查发现，COO及其部分下属员工从2019年二季度起从事了某些不当行为，调查表明，与伪造交易相关的销售额约为22亿元人民币。而此前公司披露的财报数据显示2019年前三季度，公司收入29.29亿元。

   瑞幸咖啡称，公司正在评估不当行为对其财务报表的整体财务影响。因此，投资者不应再依赖公司以前的财务报表和截至9月30日的9个月的收益发布，2019年以及从2019年4月1日起至2019年9月30日止的两个季度，包括先前对2019年第四季度产品净收入的指导，以及与这些合并财务报表有关的其他信息。调查正在进行中，公司将继续评估其先前发布的财务状况和做出其他可能调整。

2. 4月7日，浑水表示，其协助做空机构狼群（Wolfpack Research）对爱奇艺进行了研究，随后做空了爱奇艺股票。狼群称，爱奇艺早在2018年IPO之前就存在欺诈行为，估计爱奇艺去年营收夸大约80-130亿元，将用户数量夸大约42%-60%。但爱奇艺很快发表声明否认造假，称做空报告包含大量错误、未经证实的陈述以及与爱奇艺有关的误导性结论和解释，上演了对做空者的搏击。

3. 4月8日早间，好未来教育发布公告称，在例行的内部审计过程中中发现了某些员工制造虚假合同，虚增上亿美元收入，击穿其40%的增长神话。一夜之间股价下跌17%，市值蒸发22亿美元。

4. 4月14日，做空机构香橼发布报告，跟谁学虚增营收70%，称其是2011年以来最大的中概股造假案。报告一发布，跟谁学股价迅速大跌10%，市值蒸发了近50亿元。

5. 美国证监会（SEC）4月21日发表主席Jay Clayton及美国公众公司会计监督委员会（PCAOB）主席William Duhnke等五位官员的声明，提醒美国境内投资者在投资总部位于新兴市场或在新兴市场有重大业务的公司时，注意财务报告及信息披露质量的风险。

Emerging Market Investments Entail Significant Disclosure, Financial Reporting and Other Risks; Remedies are Limited

SEC Chairman Jay Clayton PCAOB Chairman William D. Duhnke III SEC Chief Accountant Sagar Teotia SEC Division of Corporation Finance Director William Hinman SEC Division of Investment Management Director Dalia Blass

April 21, 2020

The PCAOB's Inability to Inspect Audit Work Papers in China Continues Introduction[1] Over the past several decades, the portfolios of U.S. investors have become increasingly exposed to companies that are based in emerging markets[2] or that otherwise have significant operations in emerging markets.[3] This exposure includes investments in both U.S. issuers and foreign private issuers (“FPIs”) that are based in emerging markets or have significant operations in emerging markets. During this time, China has grown to be the largest emerging market economy and the world’s second largest economy.[4]

The SEC’s mission is threefold: protect our investors, preserve market integrity and facilitate capital formation. Ensuring that investors and other market participants have access to high-quality, reliable disclosure, including financial reporting, is at the core of our efforts to promote each of those objectives. This commitment to high-quality disclosure standards—including meaningful, principled oversight and enforcement—has long been a focus of the SEC and, since its inception, the PCAOB.

Our ability to promote and enforce these standards in emerging markets is limited and is significantly dependent on the actions of local authorities—which, in turn, are constrained by national policy considerations in those countries. As a result, in many emerging markets, including China, there is substantially greater risk that disclosures will be incomplete or misleading and, in the event of investor harm, substantially less access to recourse, in comparison to U.S. domestic companies.[5]This significant asymmetry holds true even though disclosures, price quotes and other investor-oriented information often are presented in substantially the same form as for U.S. domestic companies. Immediately below, we summarize some of these risks and related considerations specific to issuers, auditors, index providers and financial professionals. In the body of this statement, these matters are discussed in more detail.

Emerging Market Risk Disclosures are Important. Companies that have operations in emerging markets, and investors in those companies, often face greater risks and uncertainties than in more established markets. Issuers reporting with the SEC should clearly disclose these matters to investors. Similarly, funds investing in emerging markets should ensure that their material risk disclosures are adequate and in compliance with federal securities laws. Many risks and uncertainties are industry- and jurisdiction-specific. Boilerplate disclosures generally are not useful or sufficient in these circumstances. Quality of Financial Information, Requirements and Standards Vary Greatly. Investors and financial professionals should carefully consider the nature and quality of financial information, including financial reporting and audit requirements, when making or recommending investments. Issuers should ensure that relevant financial reporting matters are discussed with their independent auditors and, where applicable, audit committees. The PCAOB’s Inability to Inspect Audit Work Papers in China Continues. Investors and financial professionals should consider the potential risks related to the PCAOB’s lack of access to inspect PCAOB-registered accounting firms in China. Issuers should clearly disclose the resulting material risks. Auditors should have appropriate quality controls in place related to executing quality audits. The Ability of U.S. Authorities to Bring Actions in Emerging Markets May Be Limited. Accountability, for issuers and gatekeepers, including individual accountability, is a key aspect of U.S. securities law. The SEC, U.S. Department of Justice (“DOJ”) and other authorities often have substantial difficulties in bringing and enforcing actions against non-U.S. companies and non-U.S. persons, including company directors and officers, in certain emerging markets, including China. Issuers should clearly disclose the related material risks. Shareholders Have Limited Rights and Few Practical Remedies in Emerging Markets. Shareholder claims that are common in the United States, including class action securities law and fraud claims, generally are difficult or impossible to pursue as a matter of law or practicality in many emerging markets. Issuers should clearly disclose any material limitations on shareholder rights. Passive Investing Strategies Do Not Take Account of These Risks. Investors should understand that an index fund tracking a specific emerging market index generally does not directly weight securities on the basis of investor protection limitations or differences in the quality of financial reporting and available oversight mechanisms. Investment Advisers, Broker-Dealers and Other Market Participants Should Consider Emerging Market Risks. Financial professionals generally should consider the limitations and other risks described above, when recommending investments in emerging markets. Investors should recognize that these considerations (1) often are significant, (2) vary from jurisdiction to jurisdiction and company to company, and (3) are just some of the factors that may contribute to effective investment decision making, including portfolio and index construction.

This statement should not be viewed as an effort to restrict access to emerging market investments. Investor choice has long been a core component of our capital markets regulatory framework, and emerging market investments, including as a component of a diversified portfolio, have proven to be beneficial to many investors. The combination of (1) full and fair disclosure, (2) meaningful, principled oversight and enforcement and (3) broad investor choice, has made the U.S. capital markets the world’s deepest and most vibrant, benefiting investors, issuers and economic welfare domestically and globally. This statement reflects our commitment to preserving and promoting each component of that important and powerful combination.

Disclosure Requirements of Companies Reporting with the SEC—Importance of High-Quality, Reliable Audited Financial Statements—Emerging Market Disclosures Often are Different in Scope and Quality Despite Appearing Similar in Form Companies that have significant operations in emerging markets often face greater risks and uncertainties, including idiosyncratic risks, than in more established markets. Issuers reporting with the SEC should clearly disclose these matters to investors. Boilerplate disclosures generally are not useful or sufficient in these circumstances. For example, issuers should carefully consider the environment in which the company operates in assessing whether the company has sufficient controls, processes and personnel to address its accounting or financial reporting issues. These potentially unique operating considerations also should be considered and reflected in financial and operational disclosures more generally, including disclosures of material risks, trends, uncertainties, accounting judgments and other items that are material to an investor.

The bedrock of our globally interconnected capital market system has long been high-quality, reliable audited financial statements. Without high-quality, reliable financial information, capital markets do not function well, increasing capital costs and risks of misconduct, including the potential for investors to be defrauded.

Companies that file annual reports with the SEC, including FPIs (non-U.S. issuers that qualify as foreign private issuers under our rules), must file financial statements that have been audited by an independent, PCAOB-registered accounting firm. Management is responsible for the preparation of the financial statements, including responsibility for establishing and maintaining disclosure controls and procedures (“DCP”) and internal control over financial reporting (“ICFR”), and for maintaining accountability for the company’s assets, among other things.[6] The auditor is responsible to plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether caused by error or fraud.[7] Management for companies that file annual reports with the SEC, including FPIs, must determine that the financial statements, and other financial information included in the report filed with the SEC, fairly present in all material respects the financial condition, results of operations and cash flows of the company.[8]

In addition to annual reports with audited financial statements, companies subject to the periodic reporting requirements under the Securities Exchange Act of 1934 (“Exchange Act”), other than FPIs, must file quarterly reports[9] that include interim financial statements reviewed by an auditor and other disclosure items, and certifications by the principal executive and financial officers of the reporting company.[10] By contrast, FPIs subject to the periodic reporting requirements of the Exchange Act are not required to file quarterly reports or quarterly certifications by the principal executive and financial officers of the FPI, but rather are only required to furnish certain interim information in specified circumstances.[11]

While the form of disclosure may appear substantially the same as that provided by U.S. issuers and FPIs in many jurisdictions, it can often be quite different in scope and quality. Furthermore, that scope and quality of disclosure can significantly vary from company to company, industry to industry, and jurisdiction to jurisdiction.

Financial Reporting and Other Disclosure Risk in Emerging Markets Investors and financial professionals should carefully consider the nature and quality of financial information, including financial reporting and audit requirements, as well as other disclosure risk, when making investment decisions regarding companies that are based in, or have significant exposure to, emerging markets. These risks vary significantly depending on a variety of factors.

The frequency, availability and quality of financial information about potential investments in emerging markets may vary. For example, while a U.S. broker may be able to process an order for shares of a company that only trades on an emerging market securities exchange, these foreign-traded companies are not likely to file reports with the SEC. The information available about these companies, and its reliability, generally is significantly less than the information available about companies that file reports with the SEC, including because these companies generally are not subject to the same regulatory, accounting, auditing or auditor oversight requirements applicable to companies that file reports with the SEC.

In this regard, it is important to understand the critical role that issuers, audit committees, auditors and regulators each play in the U.S. financial reporting system. In other words, there are a series of checks and controls that work together to promote high-quality, reliable financial information. Similarly, investors and other stakeholders should clearly understand how any limitations on the scope of these roles have an impact on the information provided.

For example, audit committees of operating companies and funds reporting with the SEC play a vital role through their oversight of financial reporting, including ICFR and the external, independent audit process.[12] In 2002, the Sarbanes-Oxley Act[13] introduced a number of requirements to increase and strengthen the role of audit committees in financial reporting, including the independent audit committee requirement. We believe the measures related to audit committees have proven to be some of the most effective financial reporting enhancements included in the Sarbanes-Oxley Act.[14]However, not all jurisdictions mandate independent audit committees or have similar requirements. Investors should consider the impact of a company’s corporate governance structure, including the role of the audit committee or similar oversight, when making investment decisions in emerging markets.

In addition, while FPIs are generally subject to the SEC’s reporting and oversight regulations discussed above, not all those regulations apply. Further, as discussed in more detail below, the ability of U.S. authorities to bring actions for violations of those regulations may be limited in foreign jurisdictions and particularly limited in emerging markets, including in China, the world’s largest emerging market. Issuers should discuss these matters with their independent auditors (and where applicable, audit committees) and should disclose the related material risks.

To promote high-quality financial reporting and reliable audits for issuers reporting with the SEC, we continue to meet with those involved in the financial reporting system, including investors, preparers, audit committees and auditors to listen to stakeholder concerns, understand emerging issues and risks, answer questions and share views on current financial reporting matters. Investors, financial professionals and index providers should consider carefully that this type and level of engagement may not occur in emerging markets.

PCAOB’s Inability to Inspect Audit Work Papers in China Continues Investors and financial professionals should consider the potential risks related to the PCAOB’s lack of access to the work of PCAOB-registered accounting firms in China. Issuers should clearly disclose the resulting risks to investors.

The Chairman of the SEC and the Chairman of the PCAOB, as well as staff from the SEC and the PCAOB, have on various occasions reminded investors of the significant risks related to investments in China due to the inability of the PCAOB to inspect[15] audit work and practices of PCAOB-registered accounting firms in China (including Hong Kong, to the extent their audit clients have operations in China) with respect to their audit work of U.S. reporting companies.[16]

Investors should understand the potential impacts of the PCAOB’s lack of access when investing in companies whose auditor is based in China. Even when the auditor signing the audit report is not based in China, if the company has operations in China, investors should consider whether significant portions of the audit may have been performed by firms in China, and the potential impact of the PCAOB’s inability to access such audit work papers. Investors can access information about the PCAOB’s lack of access on the PCAOB’s website.[17]

Given the importance to investors of understanding the potential material risks related to the PCAOB’s lack of access related to PCAOB-registered accounting firms in China, issuers with operations in China should make clear disclosures regarding these risks, including highlighting these limitations as a risk factor.[18]

In connection with our ongoing efforts to address a number of issues related to the quality of financial reporting and auditing in emerging markets, we have been meeting with senior representatives of the six largest U.S. audit firms and representatives of their global networks. To be clear, these discussions with the audit firms are not intended to be a substitute for the PCAOB inspecting audit work and practices of PCAOB-registered accounting firms in China with respect to their audit work of U.S.-listed companies. These meetings have included discussions regarding audit quality across their global networks and the importance of effective and consistent oversight of member firms globally, including those operating in China and other emerging markets.[19] In each of these meetings, the audit firms have recognized their responsibilities as auditors and acknowledged the importance of consistent audit methodologies across their global networks. We were clear in sharing our expectations that they fulfill these responsibilities.

Enforcement Actions by the SEC, DOJ and Other U.S. Authorities May Be Limited Accountability for issuers and gatekeepers, including individual accountability, is a key aspect of U.S. securities law. The SEC, DOJ and other authorities often have substantial difficulties in bringing and enforcing actions against non-U.S. companies and non-U.S. persons, including company directors and officers, in certain emerging markets. Issuers should clearly disclose the related risks.

Investors, including individual investors, funds and companies, should understand potential limitations on enforcement actions when making investment decisions in emerging markets. Due to jurisdictional limitations, matters of comity and various other factors, the SEC, DOJ and other U.S. authorities may be limited in their ability to pursue bad actors, including in instances of fraud, in emerging markets. For example, in China, there are significant legal and other obstacles to obtaining information needed for investigations or litigation.[20]Similar limitations apply to the pursuit of actions against individuals, including officers, directors and individual gatekeepers, who may have engaged in fraud or other wrongdoing. In addition, local authorities often are constrained in their ability to assist U.S. authorities and overseas investors more generally. There are also legal or other obstacles to seeking access to funds in a foreign country. Issuers should clearly disclose the related material risks and financial professionals should consider these risks when making or recommending investment decisions.

Shareholder Rights; Shareholder Recourse Shareholder claims that are common in the U.S., including class action securities law and fraud claims, generally are difficult or impossible to pursue as a matter of law or practicality in many emerging markets. Issuers should clearly disclose any material limitations on shareholder rights.

Investors should understand legal and practical differences affecting their ability to protect their interests when making investment decisions in emerging markets. Where investors purchase a security can affect whether they have, and where they can pursue, legal remedies against the foreign company or any other foreign-based entities involved in a transaction. Investors in emerging markets may not have the ability to seek certain legal remedies in U.S. courts as private plaintiffs. Moreover, even if investors sue successfully in a U.S. court, they may not be able to collect on a U.S. judgment against a company, entity or person, including company directors and officers, in an emerging market, particularly when the company’s assets and those of its directors and officers are located in an emerging market. As a practical matter, investors may have to rely on domestic legal remedies that are available in the emerging market. These remedies often are limited and difficult for international investors to pursue.

Given the importance of a clear understanding of these risks to investors, management of companies based in jurisdictions where there may be significant limitations on an investor’s ability to seek redress should make clear disclosures regarding these risks, including highlighting these limitations as a risk factor.

Drafting and Presenting Risk Disclosure: Disclosure Should be Prominent and Clear; Boilerplate Disclosure is Not Sufficient In light of both the significance and company-specific nature of the risks discussed in this statement, we expect issuers to present these risks prominently, in plain English and discuss them with specificity.[21] Issuers based in emerging markets should consider providing a U.S. domestic investor-oriented comparative discussion of matters such as (1) how the company has met the applicable financial reporting and disclosure obligations, including those related to DCP and ICFR and (2) regulatory enforcement and investor-oriented remedies, including as a practical matter, in the event of a material disclosure violation or fraud or other financial misconduct more generally. Similarly, as discussed further below, registered funds, including those investing in emerging markets, must disclose the principal risks of investing in the securities they hold in their prospectuses and summary prospectuses; this should also be presented in plain English and with specificity as to the fund’s investments.[22]

Passive Investing; Index Construction Investors should understand that an index fund tracking a specific emerging market index generally does not consider or weigh investor protection considerations when investing in a particular security.

In addition to a number of considerations when investing in any fund, investors in index funds and other passively-managed funds should understand the potential impact of the fund’s passive investing strategy on the investor’s exposure to risks in emerging markets. For example, an emerging market index fund may seek to track a specific emerging market index, and therefore may invest in all of the securities included in that index or only a sample of those securities. However, the composition of the emerging market index itself generally would not weigh individual securities by investor protection considerations. That is, in index construction, decisions are made on a jurisdiction-wide basis. For example, once a jurisdiction is included, individual securities from that jurisdiction are included in the index based on the index provider’s specific weighting methodology (e.g., based on market capitalization). The index may or may not weigh the jurisdiction as a whole on the basis of investor risk or other factors in addition to market capitalization.

Investors and financial professionals should consider these index construction decisions and the related risks when making or recommending investment decisions in such funds.

Considerations for Investment Advisers and Funds Financial professionals generally should consider limitations on the quality or availability of information, as well as the other risks described above, when recommending investments in emerging markets. Funds investing in emerging markets should consider whether they have adequate risk disclosure about the unique risks and uncertainties that companies with significant operations in emerging markets often face. Boilerplate disclosures generally are not useful or sufficient in these circumstances.

In addition to the general considerations for investors above, investment advisers and funds should be mindful of their obligations under the Investment Advisers Act of 1940 (“Advisers Act”) and Investment Company Act of 1940 with respect to investments in emerging markets.

Investment advisers, including advisers to funds, have a fiduciary duty to their clients under the Advisers Act, including a duty of loyalty and a duty of care.[23] The duty of care includes a duty to provide investment advice that is in the best interest of the client. In order to provide such advice, an adviser must have a reasonable belief that the advice is in the client’s best interest based on the client’s objectives. For example, an adviser should consider whether investments are recommended only to those clients who can and are willing to tolerate the risks, and should conduct a reasonable investigation into the investment sufficient not to base its advice on materially inaccurate or incomplete information. Accordingly, investment advisers that are recommending investments in emerging markets may want to consider, as part of their due diligence, whether there are limitations on the quality or availability of financial information with respect to these investments, as well as possible limitations on investors’ legal remedies along the lines of those discussed above. Investment advisers should also consider the effect of market closures on their clients’ investments and ability to gain access to their assets.

In addition, mutual funds, exchange-traded funds and other registered investment companies are required to disclose their principal risks in the fund’s prospectus and summary prospectus. These risks will depend on the fund’s investment objective(s), holdings, investment strategies and structure.[24] Private fund advisers also must state all material facts necessary to make the statements made to any investor or prospective investor in the fund not misleading.[25] If a fund invests or may consider investing a significant portion of its assets in emerging markets, it should disclose those principal risks related to the quality or availability of the financial information of such investments, impact of any potential market closures and other related risks.

Closing It is important that investors, funds, financial professionals and index providers consider carefully the issues, risks and uncertainties associated with investing in emerging markets, including China, the world’s largest emerging market and second largest economy. In particular, protections similar to certain key elements of the U.S. regulatory regime may not exist in these markets and, as both a legal and practical matter, applicable regulations are more limited from an investor protection perspective. It is imperative that companies based in or with significant operations in these emerging markets, as well as their audit committees (if applicable) and auditors, each fulfill their responsibilities to (1) prepare and provide high-quality, reliable financial information and other disclosures, including through considerations of the circumstances and environment in which these companies operate and (2) provide accurate and complete risk disclosure, including with regard to the limited rights and remedies of U.S. authorities and investors.

This statement should not be viewed as an effort to restrict access to emerging market investments. Investor choice has long been a core component of our capital markets regulatory framework, and emerging market investments, including as a component of a diversified portfolio, have proven to be beneficial to many investors. The combination of (1) full and fair disclosure, (2) meaningful, principled oversight and enforcement and (3) broad investor choice, has made the U.S. capital markets the world’s deepest and most vibrant, benefiting investors, issuers and economic welfare domestically and globally. This statement reflects our commitment to preserving and promoting each component of that important and powerful combination.

[1] This statement represents the views of the Chairman, Chief Accountant and Directors of the Divisions of Corporation Finance and Investment Management of the U.S. Securities and Exchange Commission (“SEC” or “Commission”). It is not a rule, regulation, or statement of the SEC. The Commission has neither approved nor disapproved its content. This statement does not alter or amend applicable law and has no legal force or effect. This statement creates no new or additional obligations for any person.

This statement also expresses the views of the Public Company Accounting Oversight Board (“PCAOB”) Chairman William D. Duhnke III and does not necessarily reflect the views of the PCAOB, other PCAOB Board members, or PCAOB staff.

[2] See, e.g., U.S. Department of the Treasury, Federal Reserve Bank of New York and Board of Governors of the Federal Reserve System, U.S. Portfolio Holdings of Foreign Securities as of December 31, 2018 (October 2019), available athttps://ticdata.treasury.gov/Publish/shca2018_report.pdf; Bureau of Economic Analysis, U.S. Department of Commerce, Direct Investment by Country and Industry, 2018 (July 2019), available athttps://www.bea.gov/system/files/2019-07/fdici0719.pdf; M. Szmigiera, Direct investment position of the United States abroad from 2000 to 2018 (September 2019) available athttps://www.statista.com/statistics/188571/united-states-direct-investments-abroad-since-2000/.

[3] See, e.g., McKinsey & Company, Global growth, local roots: The shift toward emerging markets (August 2017), available at https://www.mckinsey.com/business-functions/operations/our-insights/global-growth-local-roots-the-shift-toward-emerging-markets; McKinsey & Company, Manufacturing the future: The next era of global growth and innovation (November 2012), available at https://time.com/wp-content/uploads/2015/03/manufacturing-the-future.pdf.

[4] China has the second largest economy in the world, with a reported gross domestic product of 4.3 trillion in 2019. See, e.g., Elvis Picardo, Why Wall Street Is a Key Player in the World's Economy (Feb. 5, 2020), available athttps://www.investopedia.com/articles/investing/100814/wall-streets-enduring-impact-economy.asp.

[5] See, e.g., SEC Office of Investor Education and Advocacy, Investor Bulletin: International Investing, available at https://www.sec.gov/reportspubs/investor-publications/investorpubsininvesthtm.html.

[6] Rules 13a-15(a) and 15d-15(a) of the Securities Exchange Act of 1934 (“Exchange Act”) (17 CFR 240.13a-15(a) and 17 CFR 240.15d-15(a), respectively) and Section 13(b)(2) of the Exchange Act (15 USC 78m(b)(2)).

[7] Paragraph .02 of AS No. 1001, Responsibilities and Functions of the Independent Auditor.

[8] Management responsibilities with respect to the financial statements of a registered investment company are similar, reflective of the different requirements for financial statement presentation and internal accounting controls. See Section 30(g) of the Investment Company Act of 1940 [15 USC 80a-29(g)].

[9] Rule 13a-13 of the Exchange Act (17 CFR 240.13a-13) and Rule 15d-13 of the Exchange Act (17 CFR 240.15d-13).

[10] Rule 13a-14 of the Exchange Act (17 CFR 240.13a-14) and Rule 15d-14 of the Exchange Act (17 CFR 240.15d-14). These rules require the certifying officers make certain certifications regarding disclosure controls and procedures and ICFR, and to also certify, among other things, that they have reviewed the Form 10-Q and that based on their knowledge: (i) the 10-Q does not contain any untrue statement of a material fact or omit to state a material fact necessary to make any statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by the 10-Q; and (ii) the financial statements, and other financial information included in the 10-Q, fairly present in all material respects the financial condition, results of operations, changes in net assets and cash flows of the company as of, and for, the periods presented in the 10-Q.

[11] Form 6-K under the Exchange Act (17 CFR 249.306).

[12] See, e.g.,SEC Chairman Jay Clayton,Statement on SEC Approval of the PCAOB’s New Auditor’s Reporting Standard(October 23, 2017),available athttps://www.sec.gov/news/public-statement/clayton-statement-pcaob-new-auditor-reporting-standard; SEC Chairman Jay Clayton, SEC Chief Accountant Sagar Teotia and SEC Division of Corporation Finance Director William Hinman, Statement on Role of Audit Committees in Financial Reporting and Key Reminders Regarding Oversight Responsibilities (December 30, 2019), available at https://www.sec.gov/news/public-statement/statement-role-audit-committees-financial-reporting.

[13] Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (2002).

[14] See, e.g.,SEC Chairman Jay Clayton,Statement at Open Meeting on Proposed Amendments to Sarbanes-Oxley 404(b) Accelerated Filer Definition (May 9, 2019), available athttps://www.sec.gov/news/public-statement/statement-clayton-050919; SEC Chairman Jay Clayton, Statement on SEC Approval of the PCAOB’s New Auditor’s Reporting Standard(October 23, 2017), available at https://www.sec.gov/news/public-statement/clayton-statement-pcaob-new-auditor-reporting-standard; SEC Chief Accountant Sagar Teotia, Statement in Connection with the 2019 AICPA Conference on Current SEC and PCAOB Developments(December 9, 2019),available athttps://www.sec.gov/news/speech/teotia-speech-2019-aicpa-conference.

[15] To further strengthen our financial reporting system, the PCAOB oversees the audits of U.S.-listed companies, registered investment companies and SEC-registered brokers and dealers with a mission of protecting investors and furthering the public interest in the preparation of informative, accurate and independent audit reports. PCAOB inspections are a key component of our regulatory efforts to enhance the quality of financial reporting and promote audit quality. See PCAOB, Mission, Vision, and Values, available athttps://pcaobus.org/About/History/Pages/mission-vision-values.aspx.

[16] See, e.g., Statement on the Vital Role of Audit Quality and Regulatory Access to Audit and Other Information Internationally—Discussion of Current Information Access Challenges with Respect to U.S.-listed Companies with Significant Operations in China(December 7, 2018),available athttps://www.sec.gov/news/public-statement/statement-vital-role-audit-quality-and-regulatory-access-audit-and-other.

[17] See PCAOB, International Oversight and Cross-Border Cooperation, available at https://pcaobus.org/International; PCAOB, Public Companies that are Audit Clients of PCAOB-Registered Firms from Non-U.S. Jurisdictions where the PCAOB is Denied Access to Conduct Inspections, available athttps://pcaobus.org/International/Inspections/Pages/IssuerClientsWithoutAccess.aspx; PCAOB, China-based Referred Work, available athttps://pcaobus.org/International/Pages/China-Referred-Work.aspx.

[18] See Item 105 of Regulation S-K (17 CFR 229.105) (requiring “a discussion of the most significant factors that make an investment in the registrant or offering speculative or risky”).

[19] SeePress Release,SEC Chairman Clayton, PCAOB Chairman Duhnke, and Members of SEC Staff Meet With Auditing Firm Representatives to Discuss Audit Quality in Emerging Economies and Markets(November 4, 2019),available at https://www.sec.gov/news/press-release/2019-228; SEC Chairman Jay Clayton, SEC Division of Corporation Finance Director Bill Hinman, SEC Chief Accountant Sagar Teotia, and PCAOB Chairman William D. Duhnke III,Statement on Continued Dialogue with Audit Firm Representatives on Audit Quality in China and Other Emerging Markets; Coronavirus—Reporting Considerations and Potential Relief(February 19, 2020), available at https://www.sec.gov/news/public-statement/statement-audit-quality-china-2020-02-19; SEC Chief Accountant Sagar Teotia, Statement on the Importance of High-Quality Financial Reporting in Light of the Significant Impacts of COVID-19 (April 3, 2020) available at https://www.sec.gov/news/public-statement/statement-teotia-financial-reporting-covid-19-2020-04-03.

[20] See Article 177 of the 2020 Revised Chinese Securities Law, which provides, among other things, that without the approval of its securities regulator and various components of the Chinese government, no entity or individual in China may provide documents and information relating to securities business activities to overseas regulators.

[21] See Item 105 of Regulation S-K (17 CFR 229.105). See also Rule 408 of the Securities Act of 1933 (17 CFR 230.408), Rule 421 of the Securities Act of 1933 (17 CFR 230.421) and Rule 12b-20 of the Exchange Act (17 CFR 240.12b-20).

[22] See, e.g., Form N-1A, Gen’l. Instr. B.4.(c)., Items 4(b) and 9(c); Rule 421 under the Securities Act (17 CFR 230.421).

[23] Commission Interpretation Regarding Standard of Conduct for Investment Advisers, Investment Advisers Act Release No. 5248 (June 5, 2019).

[24] Accounting and Disclosure Information No. 2019-08, Improving Principal Risks Disclosure, available athttps://www.sec.gov/investment/accounting-and-disclosure-information/principal-risks/adi-2019-08-improving-principal-risks-disclosure.

[25] Rule 206(4)-8(a)(1) of the Advisers Act (17 CFR 275.206(4)-8(a)(1)).

媒体报道

1. 瑞幸咖啡造假后，无论哪个中国公司看起来都像骗子

来自吴晓波频道 2020-04-10 https://mp.weixin.qq.com/s/LUrGbPG9GrPGuEEwQLFYkw

瑞幸咖啡财务造假的火，又烧到了其他中概股公司的身上。

（1）4月7日，做空机构浑水在推特上公布了一份狼群研究（Wolfpack Research）针对爱奇艺的看空报告。这份报告称爱奇艺早在2018年IPO之前便存在欺诈行为，且涉嫌财务造假。

狼群研究认为，爱奇艺通过夸大42%-60%的用户数量虚增了2019年的营业收入，规模达到80亿-130亿元人民币。

他们根据两家可以进入爱奇艺后台的广告公司的数据，分析了2019年9月某一周里爱奇艺在19个一线、新一线城市的平均日活跃用户数，并与爱奇艺官方披露的数据对比，推断爱奇艺用户数存在泡沫。

小巴觉得，狼群的指责虽狠，但和做空瑞幸的团队比起来，这次做空存在一些问题——首先是样本太小。

狼群研究统计的时间为一周里的3个工作日和1个休息日，共4天。而此前瑞幸咖啡的做空报告里调查了1832家门店。

小巴第二个认为说服力不够的，是狼群对于爱奇艺联合会员收入的质疑。

爱奇艺近年来先后与京东、知乎等多个平台开展合作，推出了联合会员。因为购买联合会员的价格比单独购买两个平台的会员更优惠，所以两年内爱奇艺的付费会员数从6010万人激增至1.07亿人。

但与外部平台的合作也会带来一个问题：收入应该怎么算？

以用户在爱奇艺平台上购买爱奇艺与京东的199元联合会员为例，假设会员费平分，爱奇艺的会计处理是这样的：

199元全部确认为自己的收入（其中一部分为递延收入——用户开通爱奇艺年度会员，爱奇艺在财报中只能确认财报季对应那3个月的收入，剩下9个月的会员费归为递延收入，将在接下来按季度转成正常收入），将99.5元计作销售费用支付给京东。

这番操作后，爱奇艺的收入大大增加，但账目上其实并没有“独吞”这笔钱。毕竟，该给京东的钱，还是给了京东，算净收入的话，就是会员订阅99.5元没变。

那爱奇艺财务造假了吗？算不上。这种会计处理方式是被允许的。

但狼群研究诟病的正是这一点。他们以此认为爱奇艺夸大了会员订阅收入。

如果非要分析爱奇艺推出联合会员的不利影响，大概会是这样：假设原先有10亿用户，其中1亿用户付费199元，9亿是普通用户；推出联合会员后，付费用户变成3亿，但付费金额下降至99元，普通用户减少至7亿。

从收入角度来说，由于增加的付费用户只需要支付99元/人，所以这笔账算下来，最后是这样的：

针对这个操作，分歧也出现了：爱奇艺以及看好联合会员的人相信，可以先利用联合会员将普通用户转化为付费用户，后续慢慢涨价；而不看好的人如狼群研究则认为，推出联合会员后，单个用户的价值被削减了，属于寅吃卯粮，爱奇艺的市值应该下跌。

两者的差别是：投资者信其有，而空头信其无。

问题是，瑞幸被做空在前，这时候大部分投资者的心理也悄然发生改变，相信的人越来越少，质疑的人越来越多。

此外，报告中还质疑了爱奇艺虚增视频版权交易的收入（独播剧授权给其他平台的收入，类似转播费）、视频播放热度在人口稀疏的内蒙古出现异常(人口集中的东部地区应该是观看视频最多的地方)、上报国内工商部门的收入与上报美国证监会的收入不同以及对外投资失误等问题。

对于这些疑点，小巴并非相关专业人士，不能简单下结论，处于将信将疑的状态。但基于指责用户数注水的理由不够充分（还忽略了热播剧对平台用户活跃度的影响），小巴更倾向于认为做空证据不足。

从爱奇艺当日盘中下跌10%、收盘时反而上涨3.22%的股价表现来看，市场上大多数投资者也是这么认为的。

（2）饱受瑞幸事件次生灾害的，也不止爱奇艺一个。

在爱奇艺被做空后的次日，好未来发布公告，自曝内部员工与供应商合谋，通过伪造合同虚增了“轻课”业务的销售数据。公告马上引发好未来股价闪崩，盘后一度跌约30%。

*好未来的轻课业务是与电视节目代理商合作，利用电视机大屏幕在客厅播送教学内容。

对于好未来自曝造假，市场上同样有两种观点。质疑者认为厨房里不会只有一只蟑螂，员工伪造业务合同只是造假的冰山一角。

而相信好未来的人则认为：轻课整个业务规模不到1亿美元，占好未来2020财年总营收的3%到4%，而员工虚增的收入占比就更小了，好未来公司主观上没有造假意图，顶多是内控不严。

历史维度看，任何公司都会面临企业管理上的“黑天鹅”——2012年，泸州老窖的经销商与当地某银行行长勾结，伪造银行存款单骗取了泸州老窖1.5亿存款。

但无论如何，负面消息总会在一段时间里影响一部分人的投资决策，以前影响的人少，瑞幸事件后或许会变多。

股价被带崩的还有另一家在线教育公司跟谁学。4月7日与4月8日两天时间，跟谁学股价下跌12%。

2月25日，做空机构灰熊研究（Grizzly Research）发布做空报告，认为跟谁学涉嫌夸大财务数据、大批量刷单、通过关联公司粉饰财报等等。

如果以2月25日跟谁学收盘价44.09美元计算，截至4月8日，跟谁学的股价因做空下跌了33%。

在支持者看来，跟谁学因财报数据过于靓丽被做空是因为外国机构不懂中国人学习英语的热情。

而在做空机构看来，过高的毛利率就是不正常，肯定存在问题。以此为起点找出各种或真或假的财务漏洞，就能做空它。

（3）从瑞幸咖啡到跟谁学再到爱奇艺，不管在海外上市的中国公司从事什么业务，在美国投资者眼中，他们都有一个共同的名字，叫做“中概股”，一荣俱荣，一损俱损。

上一轮中概股大规模被针对是在2011年前后，在浑水、香橼等做空机构狙击下，绿诺科技、中国高速频道、东南融通等多只中国概念股因造假被停牌或退市，随后打击面扩大至所有中国公司，网秦因股价跌破1美元惨遭退市，360私有化回A股……

据安永《全球IPO最新信息》披露，2010年全年在美国上市的中国企业高达42家，退市的仅有3家；到了2011年，上市企业减少至14家，退市的企业数量激增到41家。而在2012年上半年退市的中概股公司数量便达到19家，全年仅唯品会和欢聚时代两家公司赴美IPO。

所以，不难理解理想汽车创始人李想在微博上对瑞幸事件的评价。由瑞幸咖啡造假引发的猜疑，对正筹划上市的理想汽车来说无疑是当头一棒。

信任就像一张纸，一旦被揉皱，就再也不能恢复完美了。

但钱是投资者自己的，投资最忌讳人云亦云，当我们仔细推敲分析了每一份做空报告，再对照上市公司的一些思路，往往呈现的是公说公有理婆说婆有理的局面，于是判断权最终又回到了投资者自己的手里。

看好，就买入持有，认同做空的理由，就跟着做空。市场先生大部分时间都很情绪化，但似乎很多次被证明，唯有最理性的那波人，更有可能笑到最后。

2. 瑞幸风暴殃及中概股，“做空中国”的历史惊人相似

2020-04-27 https://news.newseed.cn/p/1362787

如果把目光拉回十年前，同样是中概股造假被做空暴发信任危机，引发中概股私有化的连锁反应。 瑞幸咖啡自曝推倒了中概股的多米诺骨牌。

当地时间4月22日，美国证券交易委员会（SEC）主席杰伊•克莱顿直接警告，“因为信息披露的问题，投资者近期在调整仓位时，不要将资金投入在美国上市的中国公司股票。”直指中概股公司“比看起来更危险”，并强调并非为了“阻断投资者的道路”。

就在前一天（4月21日），SEC官网发表7名高管联名的重磅声明，指出新兴市场上市公司存在信息不对称、披露不充分、无法获取审计底稿等问题，特别是美国公众公司会计监督委员会（PCAOB）无法有效审查中国公司审计稿中的风险，存在重大投资风险。其中，中国作为最大的新兴市场国家被提及29次，预警意味十分强烈。

福布斯报道称，中概股公司实际上并没有遵守《萨班斯·奥克斯利法案》进行信息披露，如同黑箱，就连百度和阿里也难辞其咎，因此美国证监会对中概股的监管感到十分“沮丧”。

PCAOB还在官网列出了目前在年报审计过程中遭遇审计障碍公司的详细清单，共计224余家，其中213家为中国公司。

如果把目光拉回十年前，同样是中概股造假被做空暴发信任危机，引发中概股私有化的连锁反应。如今，新一轮私有化潮流或将开启，历史再现惊人的相似场景。

“造假比例居高不下”，

中概股频频暴雷

**4月2日晚间，明星公司瑞幸咖啡自曝财务造假，一石惊起千层浪。**公司公告称，其COO刘剑以及部分员工伪造交易价值大约22亿元人民币。

此后，瑞幸股价一路暴跌，次日盘前暴跌85%，开盘20分钟内三次熔断，目前已跌至4.39美元/股。这家全球最快IPO的独角兽，坠落的速度也毫不含糊，从上市首日的48亿美元市值，已经跌至11亿美元。

在中美两国证监会对瑞幸密切调查的同时，4月24日，独立董事托马斯·迈耶(Thomas Meier)已提交辞呈。

这起恶劣的事件还只是一个引子。很快，好未来、爱奇艺、跟谁学也相继陷入造假丑闻。

4月7日，浑水表示，其协助做空机构狼群（Wolfpack Research）对爱奇艺进行了研究，随后做空了爱奇艺股票。狼群称，爱奇艺早在2018年IPO之前就存在欺诈行为，估计爱奇艺去年营收夸大约80-130亿元，将用户数量夸大约42%-60%。但爱奇艺很快发表声明否认造假，称做空报告包含大量错误、未经证实的陈述以及与爱奇艺有关的误导性结论和解释，上演了对做空者的搏击。

4月8日早间，好未来教育发布公告称，在例行的内部审计过程中中发现了某些员工制造虚假合同，虚增上亿美元收入，击穿其40%的增长神话。一夜之间股价下跌17%，市值蒸发22亿美元。

4月14日，做空机构香橼发布报告，跟谁学虚增营收70%，称其是2011年以来最大的中概股造假案。报告一发布，跟谁学股价迅速大跌10%，市值蒸发了近50亿元。

4月23日，中概股集体跳水，哔哩哔哩大跌7.25%，拼多多大跌5.71%，唯品会大跌7.64%，寺库大跌10.59%，阿里巴巴、京东、百度等中概股也未能幸免。

谈及瑞幸造假风波，浑水创始人Carson Block 4月21日接受腾讯新闻采访时表示：“我认为（瑞幸）比自曝的还要严重，我不信就是那一个人造的假。如果这家公司的管理层都在造假，这家公司的价值就为0。”

他认为，爱奇艺并不是彻底的骗局，但造假幅度远高于之前30%。并指出，“我不觉得坏公司的比例大幅度降低了，中概股中造假的比例仍然很高，尽管造假程度不像10年前那么夸张。”

信任危机之下，

私有化回归加速？

做空潮之下，中概股或将迎来回A热潮。

曾操刀过360等中概股回A的华泰联合证券董事总经理劳志明表示，“我觉得中概股正遭遇的信任危机是一个契机，会加速中概股回归的进程，一些有意向的已经在跟我们沟通了。”

目前在美国上市的中概股有248多家，总市值超过1.5万亿美元，但其中超过70%从上市至今股价已经跌破发行价。

截至2019年底，从美国三大交易所摘牌的中概股共达107只，占中概股之比为31%。2010年至今，已有49家美国上市的中概股公司董事会收到一或多买方的私有化要约。大量赴美上市中概股选择退市回归。

随着中概股信任危机愈演愈烈，不少问题公司面临出局。目前，一批互联网金融中概股已濒临退市边缘，多只股票在1美元区间的谷底徘徊。

事实上，2020年第一家中概股公司退市已经出现了。

4月15日上午9点半，昔日电商明星聚美优品宣布完成私有化，成为母公司 Super ROI 的全资子公司。同时，聚美优品已请求暂停在纽交所的ADS交易。上市6年后，彻底告别了美国纽交所的舞台。

与此同时，畅游也从纳斯达克私有化退市，这意味着中概股游戏公司已全部撤离美股。

据海通证券研报，截至2019年底，从美国三大交易所摘牌的中概股共107只，摘牌比例达到30.8%。自2010年以来，已有49家中概股公司董事会收到私有化要约。

但回A并不轻松，耗时耗力。中概企业从私有化退市到拆除VIE架构，再到国内上市需要至少三年时间，而三年后A股的行情依然充满不确定。按照目前全球经济下行的大环境，有融资和现金流问题的中概股很可能撑不到再上市。

时隔10年，历史惊人相似

瑞幸的财务造假事件，掀起了一轮对所有在美上市的中概股的集体信任拷问。事实上，这也正是做空者乘胜追击的最佳时机。

时隔10年，历史正在上演相同的戏码。

从2010年11月开始，彼时还名不见经传的浑水与香橼连续发布做空报告质疑在美上市的中国公司。随后，东方纸业、绿诺科技、多元环球水务、中国高速等公司，股价大跌，中概股也纷纷沦陷。

2008年金融危机前后，中国公司的异军突起吸引了逐利资本猎杀的眼光，众多美国的中小投行、律师和会计团队涌入中国市场。当年这波公司，也和如今的中概股一样，业务模式新颖，让身在局外的美国人并不是那么能看懂，但同样顶着高成长性的光环。

2008、2009年，中国概念股的市盈率达到了前所未有的高位，泡沫也被吹到最大。然而，这些中介机构对于企业赴美上市存在的问题和风险却是“报喜不报忧”，使得中国概念股的估值被推向历史最高点。

即便这些中国公司身上有着显而易见的、不可回避的缺陷，这拨机构仍然放大声量为其背书，而等到中国公司徜徉在溢价的幻觉里，浑水们又无情地做空、收割战利品。这是一个拥有完美闭环的资本食物链。

那么，除了做空机构，还有谁是真正的获利者？正是那些在中国企业赴美上市潮中，推动企业上市，赚到盘满钵满后又迅速离场的中介机构。从准备上市到退市，瑞信、花旗、美银美林到摩根士丹利等，都从中国企业的身上分得了一杯羹。

彼时，在接受《中国企业家》采访时，布洛克指出，“这是一个把中国公司带到美国去的机制。对这些银行、律师和律所来说，他们可以赚大笔的钱。我花了几个月时间去理解这个环境，我知道美方这边有多么腐败。他们通过卖一些炙手可热的金融产品来挣钱。这个炙手可热的金融产品就是中国。”

而讽刺的是，直到今天，浑水的布洛克也一如既往，正在寻找在市场上被低估的中国公司股票。

不难想象，只要还有逐利的空间，这场游戏就不会停止。