Legal Alert: Roadmap to the SEC s New Rules Regarding Earnings Releases
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1 Legal Alert: Roadmap to the SEC s New Rules Regarding Earnings Releases I. Introduction April 2003 As of March 28, 2003, U.S. companies that issue an earnings release will have to comply with a myriad of new SEC disclosure requirements. First, companies will be required to furnish on Form 8-K the text of an earnings release or public announcement that discloses material nonpublic information regarding their results of operations or financial condition for a completed annual or quarterly fiscal period. Second, companies will be required to provide additional disclosure regarding any non-gaap financial measure disclosed in the earnings release or public announcement. The SEC release adopting the new rules is available at rules/final/ htm. 1 Companies should establish procedures to ensure that any earnings release for the first quarter of 2003 is furnished to the SEC on Form 8-K within five business days of public dissemination. More importantly, if a company plans on hosting an earnings call (whether a webcast or conference call) regarding its financial results for the first quarter of 2003, the earnings release must be publicly disseminated and furnished to the SEC on Form 8-K within 48 hours before such earnings call, or the company will be required to furnish the SEC with an additional Form 8-K regarding such earnings call. It is important to emphasize that there are a number of open interpretative issues with respect to the operation of the SEC s new rules relating to the furnishing of earnings releases on Form 8-K and the use of non-gaap financial measures. The SEC has stated that it intends to issue a Frequently Asked Questions publication to clarify these open interpretative issues. As a result, the roadmap contained in this Legal Alert may be superseded by such SEC publication. In 1 Please see our Legal Alerts entitled The SEC Proposes Rules Governing the Use of Non-GAAP Financial Measures and The SEC Adopts Final Rules under the Sarbanes-Oxley Act of 2002, available on our website at for a more detailed discussion of the rules discussed herein. This article is for informational purposes and is not intended to constitute legal advise. 1
2 addition, because of these open interpretative issues, our suggested roadmap should not be considered the exclusive manner in which a company can comply with the SEC s new rules. II. Discussion The following is a roadmap of the procedures that a company can follow to comply with the SEC s new disclosure requirements in connection with the release of its first quarter 2003 earnings results: Step 1: The company should issue a press release announcing: the date and time the earnings release will be issued; the customary information regarding any earnings call, including the date and time of the earnings call, the web address or call-in telephone number, and any required passwords or access numbers; the specific location on the company s web site where an audio archive of the earnings call will be posted after the completion of the earnings call; and a statement that the audio archive of the earnings call will be available on the web site for a period of at least 12 months. Step 2: If the earnings release includes a material non-gaap financial measure, the SEC s new Regulation G will require that the earnings release include: a presentation, with equal or greater prominence, of the most directly comparable GAAP financial measure; and a reconciliation between the non-gaap and comparable GAAP financial measures, in the form of a schedule or other clearly understandable method. Step 3: The company should issue the earnings release and immediately furnish the text of the earnings release to the SEC pursuant to Item 12 of Form 8-K. If the earnings release contains a non-gaap financial measure, the company would be required to disclose the following in the body of the Item 12 Form 8-K: the reasons why the company believes that presentation of the non-gaap financial measure provides useful information to investors regarding the company s financial condition and results of operations; and This article is for informational purposes and is not intended to constitute legal advise. 2
3 to the extent material, a statement disclosing the additional purposes, if any, for which the company s management uses the non-gaap financial measure. 2 Step 4: The company should review the script for the earnings call to determine if any non-gaap financial measure will be communicated to persons participating in the earnings call. If so, the company will need to provide the following information on the company s web site before the earnings call begins in order to comply with the SEC s new Regulation G: a presentation, with equal or greater prominence, of the most directly comparable GAAP financial measure; and a reconciliation between the non-gaap and comparable GAAP measures, in the form of a schedule or other clearly understandable method. Step 5: The company should hold its earnings call within 48 hours after the public dissemination and furnishing to the SEC on Form 8-K of its earnings release. The earnings call must be broadly accessible to the public. If, during the earnings call, the company discloses any material non-gaap financial measure, the company will be required to disclose to the participants of the earnings call the specific location on its web site where the most directly comparable GAAP measure and GAAP reconciliation is available. It is important to note that it is not clear how the SEC s requirement that the comparable GAAP financial measure and GAAP reconciliation must be posted on the company s website at the time of the disclosure of a non-gaap financial measure would apply if the non-gaap financial measure were disclosed inadvertently or in response to a question during the earnings call. We believe that any of the three following alternatives would be appropriate in handling this situation: provide the non-gaap financial measure and state that the comparable non-gaap financial measure and GAAP reconciliation will be posted on the company s web site shortly after the earnings call; provide only the GAAP financial measure and state that the non-gaap financial measure and related reconciliation will be posted on the company s web site shortly after the earnings call; or 2 Alternatively, the company could elect to provide these disclosures in the earnings release or in the company s most recent annual report filed with the SEC (or a more recent filing). If the company elects to provide the disclosure in its most recent annual report filed with the SEC, it must update those statements, as necessary, no later than the time the Item 12 Form 8-K is furnished to the SEC. This article is for informational purposes and is not intended to constitute legal advise. 3
4 decline to provide any information during the earnings call and state that the information will be provided on the company s web site shortly after the call. Step 6: Immediately after the completion of the earnings call, the company should post an audio archive of the earnings call on its website. 3 The company should maintain the audio archive on its web site for a period of at least 12 months. 4 Step 7: If (1) the earnings call is more than 48 hours after the public dissemination of the earnings release, (2) the Item 12 Form 8-K is not furnished to the SEC within 48 hours of the commencement of the earnings call, (3) the financial and statistical information contained in the earnings call is not provided on the company s web site immediately after the completion of the earnings call, or (4) the earnings call contains material non-public information regarding the company s results of operations or financial condition for a completed annual or quarterly fiscal that is not complementary to information included in the earnings release, the company must furnish an additional Item 12 Form 8-K containing the text of the earnings call. 3 In order to avoid furnishing an additional Item 12 Form 8-K containing the text of the earnings call, the SEC s rules require that the financial and other statistical information contained in the [earnings call] is provided on the registrant s web site. Unlike the SEC s rules regarding the use of non-gaap financial measures, Item 12 of Form 8-K does not specify that such disclosure must be on the website at the time of the presentation. In fact, in the SEC s proposing release regarding Item 12 of Form 8-K, the SEC specifically questioned whether it should require the financial and other statistical information contained in the earnings call to be posted on the company s website at the same time as the earnings call, but the SEC did not adopt such a requirement in its final rules. Moreover, the SEC rules do not specifically state the method by which such information is [to be] provided on the registrant s web site. We believe that it is reasonable for a company to post an audio archive of the earnings call to satisfy the requirement that the financial and other statistical information contained in the [earnings call] is provided on the registrant s web site. 4 See Final Rule: Conditions for Use of Non-GAAP Financial Measures (January 22, 2003) at footnote 61 for the SEC s recommendation that companies maintain ongoing website access to the financial and other statisical information contained in the presentation for at least 12 months. This article is for informational purposes and is not intended to constitute legal advise. 4
5 III. Further Information This publication has been prepared solely for informational purposes and is not intended as legal advice. For more information about the matters discussed in this Legal Alert, please contact the Sutherland Asbill & Brennan LLP attorney with whom you work, or any of the attorneys listed below. B. Knox Dobbins Wade H. Stribling Patrick J. Whelchel This article is for informational purposes and is not intended to constitute legal advise. 5
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