Mail Stop 0510
November 1, 2004
Via U.S. mail and facsimile
Mr. Richard W. Kunes
Senior Vice President and Chief Financial Officer
The Estee Lauder Companies Inc.
767 Fifth Avenue
New York, NY 10153
RE: Form 10-K for the fiscal year ended June 30, 2004
File No. 1-14962
Dear Mr. Kunes:
We have reviewed this filing and have the following
comments. If you disagree with a comment, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your disclosure.
After reviewing this information, we may or may not raise additional
comments.
Please understand that the purpose of our review process is to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing. We
look forward to working with you in these respects. We welcome any
questions you may have about our comments or on any other aspect of
our review. Feel free to call us at the telephone numbers listed at
the end of this letter.
FORM 10-K FOR THE YEAR ENDED JUNE 30, 2004
General
1. Where a comment below requests additional disclosures or other
revisions to be made, please show us in your supplemental response
what the revisions will look like. With the exception of the comments
below that specifically request an amendment, all other revisions may
be included in your future filings.
Item 7. Management`s Discussion and Analysis of Financial Condition
and Results of Operations
Critical Accounting Policies and Estimates, page 17
2. Please expand your discussion of critical accounting policies to
address the following:
* Types of assumptions underlying the most significant and subjective
estimates;
* Any known trends, demands, commitments, events or uncertainties that
are reasonably likely to occur and materially affect the methodology
or the assumptions described;
* A quantitative discussion of changes in overall financial
performance if you were to assume that the accounting estimate were
changed, either by using reasonably possible near-term changes in the
most material assumptions underlying the accounting estimate or by
using the reasonably possible range of the accounting estimate.
* A quantitative and qualitative discussion of any material changes
made to the accounting estimate in the past three years, the reasons
for the changes, and the effect on your overall financial performance;
Refer to SEC Releases 33-8098 and 33-8350.
Reconciliations of Financial Results, page 21
3. Your presentation of condensed statements of earnings described as
"Non-GAAP Results" gives too much prominence to amounts not calculated
and presented in accordance with GAAP. Given the guidance of Item
10(e)(1)(i)(A) of Regulation S-K, please remove the non-GAAP
statements of earnings. Naturally, you may present specific non-GAAP
measures, as long as the requirements in Item 10(e) of Regulation S-K
have been met.
4. You have presented the 2003 reconciliation as the special pre-tax
charge of $22.0 million in connection with the proposed settlement of
a class action lawsuit is significantly larger than similar charges
incurred individually or in the aggregate. It appears that costs of a
similar nature would have been incurred within the prior two years or
are likely to recur within the subsequent two years. Please tell us
how you considered the requirements in Item 10(e)(1)(ii)(B) of
Regulation S-K.
Fiscal 2004 as Compared with Fiscal 2003, page 23
5. Please quantify the impact of each factor when multiple factors
contribute to material fluctuations. For example, the decrease in
operating expenses as a percentage of net sales for the year ended
June 30, 2004 compared to the year ended June 30, 2003 was due to
higher growth in net sales, ongoing cost containment efforts,
partially offset by operating expenses related to BeautyBank, higher
operating costs associated with newly acquired brands, and expenses
related to compliance with regulatory requirements. Refer to Item
303(a)(3)(i) of Regulation S-K and Financial Reporting Codification
501.04.
Product Categories, page 26
6. Where there is more than one reason for a change between periods,
please revise your segment MD&A for the annual periods to quantify the
extent to which each reason contributed to the overall change in the
segment line item. For example, net sales of skin care products
increased due to the recent launches of certain products, full year of
the Darphin line of products, partially offset by lower net sales of
certain existing products. Refer to Item 303(a)(3) of Regulation S-K.
Liquidity and Capital Resources, page 28
7. Please disclose your material commitments for capital
expenditures, the general purpose of those commitments and the
anticipated source of funds needed to fulfill those commitments. See
Item 303(a)(2) of Regulation S-K.
Table of Contractual Obligations, page 31
8. Please consider revising your table of contractual cash
obligations to include the following:
(a) Estimated interest payments on your debt;
(b) Estimated payments under interest rate swap agreements; and
(c) Planned funding of pension and other postretirement benefit
obligations.
Because the table is aimed at increasing transparency of cash flow, we
believe these payments should be included in the table. Please also
disclose any assumptions you made to derive these amounts.
Forward-Looking Information, page 34
9. Your statement that words such as "will" and "will continue" are
used to identify forward-looking statements is confusing, since these
terms generally imply more certainty. Please revise or advise.
Financial Statements
Note 2. Summary of Significant Accounting Policies
General
10. Please disclose the types of expenses that you include in the
cost of sales line item and the types of expenses that you include in
the selling, general and administrative expenses line item. Please
tell us whether you include inbound freight charges, purchasing and
receiving costs, inspection costs, warehousing costs, internal
transfer costs, and the other costs of your distribution network in
the cost of sales line item. With the exception of warehousing costs,
if you currently exclude a portion of these costs from cost of sales,
please disclose:
* in a footnote the line items that these excluded costs are included
in and the amounts included in each line item for each period
presented, and
* in MD&A that your gross margins may not be comparable to those of
other entities, since some entities include all of the costs related
to their distribution network in cost of sales and others like you
exclude a portion of them from gross margin, including them instead in
a line item, such as selling, general and administrative expenses.
Property, Plant and Equipment, page F-9
11. Please clarify which line item includes depreciation and
amortization of property, plant and equipment. In addition, refer to
the disclosure requirements of SAB Topic 11:B.
12. Please separately disclose the range of useful lives for each
category presented. For categories that still have very broad useful
lives, you should separately discuss the types of assets that fall in
each part of the range.
Goodwill and Other Intangible Assets, page F-9
13. Please disclose the estimated useful life of each class of
intangibles. Please also disclose the estimated aggregate
amortization expense for each of the next five years. Refer to
paragraph 45(a)(3) of SFAS 142.
Accumulated Other Comprehensive Income (Loss), page F-11
14. As discussed on page F-17, you closed your operations in
Argentina. Please present the reclassification adjustments related to
your foreign currency translation adjustments. See paragraph 19 of
SFAS 130.
Revenue Recognition, page F-11
15. You disclose that revenues are generally recorded when products
are shipped. Please disclose in your revenue recognition policy:
* Whether your stated shipping terms are FOB shipping point or FOB
destination pursuant to your sales agreements;
* Your customers` rights of inspection, acceptance, and return; and
* When title passes from you to your customer.
Unless obvious, please explain to us why sales recognition is
appropriate upon shipment, rather than upon delivery to and acceptance
by the customer. Note that even if your sales agreements state that
title passes upon shipment, customer acceptance provisions or a
history of your replacing goods damaged or lost in transit may make
the recognition of revenue upon delivery to and acceptance by the
customer GAAP. See the Interpretive Response to Question 3 of SAB
Topic 13:A.3.b.
16. You state that generally revenues from merchandise sales are
recorded at the time the product is shipped to the customer. Expand
your disclosure to state what you mean by "generally." For those
sales which you do not record sales at the time of shipment, state
when you do record these sales.
Advertising and Promotion, page F-12
17. Since you engage in co-op advertising arrangements, please
disclose your accounting policy for them, including the statement of
earnings line item in which they are included. If you pay slotting
fees, have buydown programs, and/or make other payments to resellers,
please provide similar disclosures regarding each of these types of
arrangements as well. For each expense line item that includes these
types of arrangements, please disclose the related amounts included in
that line item. For each type of arrangement treated as an expense,
rather than as a reduction of revenues, please tell us how the
arrangement meets the requirements of EITF 01-9. Please also discuss
in MD&A any significant estimates resulting from these arrangements.
Note 4. Acquisition and Divestiture of Businesses and License
Arrangements, page F-15
18. You have various license arrangements to develop and market
products under brand names such as Tommy Hilfiger, DKNY, Kate Spade,
and Michael Kors. Please disclose the basic terms and duration of
these and other license arrangements. Please disclose your
responsibilities under these arrangements including whether amounts
are owed during the term of the license agreements or whether all
required payments are made upon initiation of the contract. In
addition, please disclose how you account for these arrangements on an
ongoing basis. We note the intangible assets recorded.
Note 6. Income Taxes, page F-17
19. You provide tax reserves for federal, state and international
exposures relating to audit results, planning initiatives and
compliance responsibilities. If material, provide the disclosures
required by paragraph 9 and 10 of SFAS 5.
Note 8. Debt, page F-19
20. During fiscal 2004, you and the holders of the $6.50 Cumulative
Redeemable Preferred Stock exchanged all of the outstanding shares due
June 30, 2005 for a newly issued series of cumulative redeemable
preferred stock with a mandatory redemption date of June 30, 2015 with
a variable dividend rate. This exchange transaction was accounted for
as a modification of the terms of the cumulative redeemable preferred
stock, and accordingly, the effects of this transaction were limited
to the prospective change in dividend rates. Tell us how you
determined it was appropriate to treat this exchange transaction as a
modification based on the requirements of EITF 96-19 or other
applicable literature.
Note 15. Commitments and Contingencies, page F-30
21. Please expand your disclosure related to the consolidated class
action lawsuit to specifically address the following:
* Clarify whether you are still awaiting Court approval for the
settlement agreement.
* Clarify whether the $22 million charge recorded in 2003 is also the
total amount accrued as of the latest balance sheet date related to
this matter. If not, disclose the total amount accrued as of the
latest balance sheet date. In addition, if it is reasonably possible
that a material loss may have been incurred in excess of the amount
accrued, disclose an estimate of the possible loss or range of loss or
state that such an estimate cannot be made. Refer to paragraphs 9 and
10 of SFAS 5.
* Clarify whether the settlement agreement for which you recorded the
$22 million also relates to the Federal Action. If the Federal Action
is independent, provide the disclosures required by paragraphs 9 and
10 of SFAS 5.
22. With respect to the Blydenburgh landfill and the
Huntington/East Northport landfill, disclose whether the $16 million
and $20 million represent the estimated investigation and cleanup
costs for all potentially responsible parties or whether these are
your estimated liability amounts. In addition, disclose whether any
amounts have been accrued. If it is reasonably possible that a
material loss may have been incurred in excess of the amount accrued,
disclose an estimate of the possible loss or range of loss or state
that such an estimate cannot be made. Refer to paragraphs 9 and 10 of
SFAS 5.
Exhibits 31.1 and 31.2
23. Disclosure controls and procedures are now defined in Exchange
Act Rules 13a-15(e) and 15d-15(e). See SEC Release 33-8238, which
became effective August 14, 2003. Please file an amendment to your
Form 10-K to include certifications that conform to the format
provided in Item 601(b)(31) of Regulation S-K and refer to the
appropriate locations for the definitions. In doing so, please refile
the Form 10-K in its entirety.
* * * *
Please respond to these comments within 10 business days, or
tell us when you will provide us with a response. Please provide us
with a supplemental response letter that keys your responses to our
comments and provides any requested supplemental information.
Detailed letters greatly facilitate our review. Please file your
supplemental response on EDGAR as a correspondence file. Please
understand that we may have additional comments after reviewing your
responses to our comments.
We urge all persons who are responsible for the accuracy and adequacy
of the disclosure in the filings reviewed by the staff to be certain
that they have provided all information investors require for an
informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they are
responsible for the accuracy and adequacy of the disclosures they have
made.
In connection with responding to our comments, please provide, in
writing, a statement from the company acknowledging that:
* the company is responsible for the adequacy and accuracy of the
disclosure in their filings;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action with
respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the federal
securities laws of the United States.
In addition, please be advised that the Division of Enforcement
has access to all information you provide to the staff of the Division
of Corporation Finance in our review of your filing or in response to
our comments on your filing.
If you have any questions regarding these comments, please direct them
to Nudrat Salik, Staff Accountant, at (202) 942-7769 or, in her
absence, to the undersigned at (202) 942-1774.
Sincerely,
Rufus Decker
Accounting Branch Chief
Mr. Richard W. Kunes
November 1, 2004
Page 8 of 8
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0510
DIVISION OF
CORPORATION FINANCE