Conducting a Regulation FD & Regulation G compliant earnings call

One never knows where a conversation will meander when working a “service provider’s table” at a National Investor Relations Institute (NIRI) chapter event.

Boston’s “Sponsorpalooza” event this past Wednesday was no exception.

PHONE1111

The discussion started simply…”is there anything new with earnings calls?” From there, the discussion went towards the point that, except for a couple isolated (and perhaps self-serving) examples like Twitter, the practical earnings call has not changed since the adoption of RegFD in October 2000. The conversation then evolved into a more philosophical point: we may have upgraded phones but can true transparency be upgraded? Right about here is when the bar opened.

The tactile task I did walk way with was to send the future client (hopefully!!) this list. This outlines the procedures that an issuer should follow when holding a quarterly conference call to discuss an earnings release. It’s a pretty timeless to-do list.

  • Provide public notice. The company should provide public notice a reasonable period of time in advance of the call. For regular quarterly earnings calls, the SEC has stated that notice of several days would be reasonable. The notice, which can be delivered in a press release, corporate website, social media or Form 8-K. The notice must include:
    • The date, time, subject matter and means for listening to the call (e.g., the dial-in number or location of a webcast)
    • If any financial, statistical or Regulation G information is required to be posted to the company’s website in connection with the call (see Item 4 below), the address for that website and the location where the information can be found (e.g., in the investor relations section of the website)
    • Whether, and for how long, the public can access a replay or transcript of the call on the company’s website (see Item 6 below)
  • Notify stock exchanges. Both NYSE and NASDAQ require advance notice of earnings releases by listed companies, as described below:
    • If a NYSE listed company intends to issue an earnings release before or during market hours (7:00 a.m. to 5:00 p.m., New York time), it must notify its NYSE representative by telephone and provide the NYSE with the text of the earnings release by e-mail, in each case at least 10 minutes prior to the release of the announcement.
    • If a NASDAQ listed company intends to issue an earnings release during NASDAQ market hours (presently 7:00 a.m. to 8:00 p.m. ET), it must notify NASDAQ’s MarketWatch Department through its electronic disclosure submission system. If the company intends to issue the release outside of NASDAQ market hours, it must notify MarketWatch of the release prior to 6:50 a.m. ET on the day of release (in the case of releases made in the early morning) or the day after release (in the case of releases made after hours on the prior night).  In each case, the notification to MarketWatch may be made through its electronic disclosure submission system.
  • File the earnings release with a Form 8-K. The earnings release should be included under Item 2.02 of a Form 8-K that is furnished to the SEC in advance of the earnings call. The timing is important. If the Form 8-K is furnished to the SEC no more than 48 hours prior to the earnings call, there will be no need to furnish another Item 2.02 Form 8-K with any earnings information that is discussed during the call (assuming proper advance notice of the call has been given, as described above).
  • Post financial, statistical and Regulation G information onto IR website. Any financial and statistical information that will be used during the earnings call should be posted to the company’s website prior to the call. If any non-GAAP financial measures will be used during the call, the disclosure required under Regulation G should also be posted to the website. The SEC encourages, but does not require, that such information remain available on a company’s website for a minimum of 12 months.
  • Conduct earnings call. The company should conduct its earnings call within 48 hours after the Item 2.02 Form 8-K has been furnished to the SEC. Public access to the call should be provided through a dial-in number, a webcast or similar method of broadcast. Members of the public that are provided with a dial-in number can be given “listen-only” access and do not need to be provided with the ability to ask questions. Prior to commencing the call, it is recommended that a company spokesperson or senior official:
    • Disclose the location on the company’s website of any financial or statistical information that will be used during the call, as well as any information required by Regulation G
    • Recite and/or identify the location of the company’s disclaimer for forward-looking statements, to ensure that any forward-looking information discussed during the call is afforded the protection of the safe harbor under the Private Securities Litigation Reform Act of 1995
  • Post replay or transcript of call to IR website. Promptly after the earnings call, the company should post an audio replay or transcript of the call to the company’s website. By doing so (and assuming the public was provided with proper advance notice of where and when the replay or transcript would be available), any material nonpublic information that was discussed during the call will be deemed to have been publicly disseminated for purposes of Regulation FD.

As a last (and perhaps self-serving) practical comment, please note that we conveniently offer all the services mentioned above for clients, worldwide: telephony conference call, webcast, news release distribution, IR website, 8-K EDGAR file and the follow-up XBRL.

Besides giving out great advice at Sponsorpalooza, we also gave out nice pens.

One response to “Conducting a Regulation FD & Regulation G compliant earnings call

  1. I savor, lead to I discovered exactly what I used to be having a look
    for. You’ve ended my four day long hunt!
    God Bless you man. Have a nice day. Bye

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