Category Archives: Investor relations

New whitepaper: How to improve SEC disclosure

SEC disclosure requirements have prompted debate among key stakeholders about the right path forward.

The SEC launched its “disclosure effectiveness” project in 2013, and now the Commission set its sights on revising Regulation S-K and doing away with redundant information. What do experts think about the efforts?



When Congress created the modern corporate disclosure regime in 1933 with the passage of the Securities Act, the lawmakers likely could not fathom the scale to which financial reporting would grow 80 years later. And indeed, it has grown immensely. Yet with the exception of small periodic reforms, the Securities and Exchange Commission (SEC) has rarely made changes to corporate disclosure requirements since then.

But after the JOBS Act of 2012 forced the Commission to consider reporting requirements for “emerging growth companies” and mandated a study on Regulation S-K, their findings suggested a larger project. “The study basically said, ‘Gee, what we really want to do is a more comprehensive review and potential reform of our whole disclosure system,'” explained Robert Herz, a former chairman of the Financial Accounting Standards Board. In April 2016, the SEC voluntarily came out with a 341-page concept release reviewing the requirements for S-K.


As it turned out, people had a lot of opinions on this subject. Two months later, the SEC had received hundreds of comments from lawmakers, officials, academics, and corporate executives. They also received more than 25,000 copies of form letters, many of which asked for more sustainability information. In July 2016, the SEC made a separate proposal to eliminate overlapping provisions on disclosure forms as well.

People in the reporting community have strong and diverse opinions on the subject of disclosure reform. How important is materiality as an element of effective disclosure? Is “less” sometimes “more” when it comes to SEC filings? And should sustainability metrics be made mandatory?

We asked five leading experts to weigh in.


12 month at-a-glance calendar for Investor Relations departments

Working with a new client last week, the discussion went from a cheerfully kind “thank you for the 2017 SEC EDGAR filing calendar” (click here) to a subtle “hey… do you have a calendar for IR, too?”

We did not. But we do now!


Help your internal stakeholders understand the to-do of IR!

Never shrinking down from a client request, we immediately went to task – first asking during that meeting what are the key activities needed to be calendared. As you see, the result is a traditional IR to-do list. Also, except for the 10-K and 10-Qs, the events are driven by broad strokes, month by month, rather than exact dates.


  • Planning stages certainly vary and overlap i.e. earnings news releases and 10-Qs
  • Updating the IR website once a quarter refers to more holistic updates: text narratives, FAQs, and other non-automated feed
  • Best practices suggest two or three days each quarter for non-deal roadshows in targeted cities
  • Holding a formal Analyst Day in a target city, like NYC, generally aligns with non-deal meetings
  • The NIRI Annual Conference is in June

Happily, the client was grateful for the calendar – they will be sharing it internally as a directional illustration of IR’s year.

Click here to download a high resolution PDF.



Zen and the Art of 10-K Maintenance

Yah… I know. There’s nothing remotely zen-like about producing a 10-K.

That said, as you’ll read within our client “kudos” comments, our design, typesetting and production teams strive to make our role in the process as kumbaya as possible. For many issuers, (especially IPOs), the meetings often begin with an overall review of what is required in a 10-K.

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All public companies other than foreign private issuers must file an Annual Report on Form 10-K following the end of each fiscal year. The Form 10-K includes four parts, the items of which are described below.

Part I of Form 10-K provides a general description of the business of the company and its properties along with the risk factors that investors should consider when investing in the company.

Part I also includes:

  • a description of any material legal proceedings other than routine litigation incidental to the business to which the company or any of its subsidiaries is a party or to which any of its property is subject, and any such proceedings that were terminated in the fourth quarter of its fiscal year (along with a description of the outcome)
  • for accelerated filers and large accelerated filers, a description of any material unresolved comments from the SEC staff regarding the company’s periodic and current reports that were received 180 days or more before the end of the fiscal year and…
  • if applicable, a statement that the information concerning mine safety violations or other regulatory matters required by Section 1503(a) of the Dodd-Frank Act and Item 104 of Regulation S-K (which are discussed in more detail in section of this handbook entitled “The Dodd-Frank Act”) is included in an exhibit to the Form 10-K

Part II of Form 10-K includes a comparative presentation of selected financial data for the last five fiscal years, management’s discussion and analysis of the company’s operating results and its liquidity and capital resources, and the audited consolidated financial statements of the company (which may also be filed in Part IV), along with certain supplementary quarterly financial data.

Part II also includes:

  • information relating to the company’s common stock, including the trading market, historical high and low sales prices, the number of registered holders, the payment of cash dividends, unregistered sales of securities, and company repurchases of its common stock during the fourth fiscal quarter
  • quantitative and qualitative disclosures relating to market sensitive instruments held by the company and other primary market risk exposures (smaller reporting companies do not need to provide the information required by this item)
  • if there has been a change in the principal accountants of the company, disclosure of:  1.) any disagreements with the accountants that the accountants would have been required to disclose; or  2.) any “reportable event” that had occurred, which was material and accounted for or disclosed in a manner different from what the former accountants would have apparently concluded was required (which disclosure is required with respect to disagreements or reportable events that occurred during the year in which the change in accountants took place or during the subsequent year)
  • the conclusion of the company’s principal executive and financial officers regarding the effectiveness of the company’s disclosure controls and procedures (which are discussed in more detail below in the “Disclosure Controls and Procedures” part of this section and in the section of this handbook entitled “The Sarbanes-Oxley Act”)
  • management’s assessment of the effectiveness of the company’s internal control over financial reporting, including disclosure of any material weakness in its internal controls
  • an attestation report of the independent auditors on the company’s control over financial reporting
  • any changes in the company’s internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, such internal controls and…
  • any information required to be reported in a Form 8-K during the fourth quarter that was not reported

Companies need not comply with disclosure requirements relating to disclosure controls and procedures and internal control over financial reporting until after they have filed an Annual Report on Form 10-K for a prior fiscal year. In addition, as codified in Section 989G of the Dodd-Frank Act, smaller reporting companies and non-accelerated filers are exempt from the requirement to include the attestation report of the independent auditors on the company’s internal control over financial reporting.

benchmark your budget (and creative design) via an audit of last year’s
annual report.

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2015 annual report PDF here.

Part III of the Form 10-K includes disclosures relating to directors, executive officers, corporate governance, executive compensation, the beneficial ownership of management and certain large shareholders, related person transactions, director independence and accountant fees and services. Part III items may only be incorporated by reference if such proxy statement is filed within 120 days of the company’s fiscal year end. If the proxy statement is not filed within such 120-day period, the company must file an amendment to its Form 10-K prior to the end of such period that includes the Part III information.

Companies should list under Part IV of the Form 10-K their financial statements and the schedules required to be filed in Part II, along with all exhibits required to be filed by Item 601 of Regulation S-K.

The exhibits to the Form 10-K will generally include:

  1. all material contracts
  2. the company’s organizational documents
  3. all instruments defining the rights of security holders
  4. a list of the company’s significant subsidiaries
  5. any applicable consents of experts and counsel (namely, the consent of the independent auditors where the financial statements are incorporated by reference in one or more registration statements)
  6. certifications under the Sarbanes-Oxley Act, which are described in more detail below and…
  7. interactive data files with the company’s financial statements in XBRL. Most exhibits can be incorporated by reference to a previously filed document. Management contracts and compensatory plans and arrangements must be specifically identified.

Summary of Selected Items

Risk Factors. Item 503(c) of Regulation S-K requires public companies to disclose under the caption “Risk Factors” a discussion of the most significant factors that make investing in the securities of the company risky or speculative. The factors should be those risks that are specific to the company and should not include risks that apply to every public company. As a general rule, any fact or circumstance that could pose a risk to the company’s financial condition, results of operations or potential growth, or which could otherwise materially affect the performance of the company’s securities, may be a risk factor. In addition to identifying the risk factors, the company must discuss how each factor could affect the company or its securities. Companies should not include mitigating language in their risk factor disclosures.

In addition, the discussion of risk factors must be written in plain English. Smaller reporting companies are not required to provide the information required under this item. Many smaller reporting companies, however, will include risk factors in their Annual Reports to take advantage of a safe harbor defense for forward-looking statements.

Section 21E of the Exchange Act provides a safe harbor defense for companies in securities litigation for forward-looking statements that are made by the company in its Exchange Act reports. This defense is similar to the defense in Section 27A of the Securities Act and the “bespeaks caution” defense developed in securities case law. Forward-looking statements, which are commonly found in a company’s MD&A (defined below), are statements not of historical fact but of the expectations of the company with respect to its future performance or other predictions or expectations regarding future events.

To qualify for the safe harbor, companies must identify the forward-looking statements in the report with sufficient particularity and accompany the statements by cautionary language that identifies the significant factors that could cause actual results to materially differ from those contained in the forward-looking statements. The risk factors identified in the Form 10-K and other filings can provide the meaningful cautionary language required by the safe harbor.

Management’s Discussion and Analysis (MD&A) of Financial Condition and Results of Operations.

Item 303 of Regulation S-K requires a discussion and analysis of the company’s operating results and its liquidity and capital resources. As articulated by the SEC, the purpose of this disclosure is to present the company’s financial condition and results of operations “through the eyes of management” and to provide the context for analysis of the financial information presented in the periodic report. A critical requirement of the Management’s Discussion and Analysis of Financial Condition and Results of Operations (better known as the MD&A) is to disclose any known trends, commitments, events or uncertainties that have had or are reasonably likely to have a material effect (positive or negative) on the company’s operating results or liquidity.

The MD&A should identify and discuss the principal drivers that have impacted and will continue to impact the company’s operating results and financial condition, as well as key performance measures, including non-financial performance indicators, which are used by management and which would be material to investors, particularly where management refers to these measures in its earnings releases. In general, the MD&A should emphasize material information and de-emphasize or omit immaterial or duplicative information.

Among other material items, the MD&A should include an analysis of the following matters relating to the company:

  • changes in cash flows
  • debt instruments and certain related covenants, including covenants:  1.) the company has breached or is reasonably likely to breach; or  2.) that materially restrict the company’s ability to incur additional debt or to undertake an equity financing
  • critical accounting policies and estimates that require subjective judgments to account for uncertain matters or matters subject to change
  • any material tax contingencies or trends or uncertainties that could affect the company’s tax obligations or effective tax rate
  • commitments for capital expenditures
  • material contingencies arising from pending litigation and regulatory matters
  • commitments for environmental expenditures and…
  • any off-balance sheet arrangements

The MD&A should include a liquidity and capital resources section that provides a clear picture of the company’s ability to generate cash and to meet existing and known or likely future cash requirements. The discussion should focus on material changes and trends in operating, investing and financing cash flows and the reasons underlying those changes. The MD&A also must include quantitative tabular disclosure regarding the company’s contractual obligations.

Sarbanes-Oxley Certifications

The Sarbanes-Oxley Act created two certification requirements for the principal executive and principal financial officers of public companies. Section 302 of the Sarbanes-Oxley Act requires a certification that is filed with each quarterly and annual report and which states that the reports are accurate and complete and that the company has in place adequate disclosure controls and procedures and internal control over financial reporting. Section 906 of the Sarbanes-Oxley Act requires a certification that is furnished with any report containing financial statements and which states that the report fully complies with Section 13(a) or 15(d) of the Exchange Act and fairly presents, in all material respects, the financial condition and results of operations of the company. Although paragraph 3 of the Section 302 certification may be omitted in certain circumstances, and plural references to “certifying officers” in paragraphs 4 and 5 can be made singular, the certifications must otherwise strictly follow the language provided in SEC rules.The SEC has said that it will not accept an altered certification even if the alteration would appear to be inconsequential. If a filed certification is not correct and complete, the accompanying report may be considered by the SEC to be materially incomplete and deemed not filed (thus potentially affecting Form S-3 eligibility, among other things).


The Form 10-K must be signed on behalf of the company by a duly authorized officer as well as by its principal executive officer(s), its principal financial officer(s), its controller or principal accounting officer, and by at least a majority of the members of the board of directors. When the form is filed by a limited partnership, it must be signed by at least a majority of the members of the board of directors of any corporate general partner that signs the report.

Tips for presenting your non-deal roadshow to an online audience

Since 2010, I’ve hosted hundreds of CEOs at, our monthly “digital roadshow platform,” connecting these CEOs and their senior executives directly to a pool of over 40,000 institutional and individual investors.

~~~FYI: Our next conference is a special two-day event, Oct 4 – 5, partnered with the OTC Markets. (check this out here)  ~~~otc-blog


Watching all these presentations, I have witnessed, first-hand, the best and the worst online presentations. From that, I have pulled together the key thoughts and strategies to place your company in the best ONLINE light.

That word – ONLINE – is the point of this discussion. Although, per RegFD, the material content that you present to a physical audience is no different than what you will present at a virtual audience, how you present is very different.

  • Your virtual audience will leave the very moment they lose interest – it’s a web-mentality
  • Your virtual audience is surrounded by distraction
  • Your virtual audience have small screens
  • Your virtual audience is immune to your CEO’s “in-room presence”

Here are a few points that may guide your success. To be exact, virtual presentations are live, audio and slide webcasts with “presenter controlled” slide advancement. Online audience members can type and submit questions.

1.) Get a PROFESSIONAL photographer to make a head shot of you / CEO / presenting executives.

All virtual investor conferences (not just ours) request a speaker photo. Don’t use a cropped snapshot. Don’t use an iPhone and “go stand next to that wall.”

Spend the short money. Go to Sears. Go to JC Penny’s. You must do this.

0b5aqqqqq50eBe cognizant that this is the only image of your presenter the audience will have. Ask yourself, “is that the face of trust?” The face people will give their money to?

2.) Unless your speakerphone is very, very expensive (or you do not have opposable thumbs) pick up and use the phone’s handset. 

Objectively, it always assures the sound quality. Subjectively, it allows the presenter to relax and just “talk normal” and your INVESTORS. DO. NOT. HAVE. TO. LISTEN. TO. THAT. ANNOYING. SPEAKERPHONE. SHOUTING. TONE.

3.) The competition is not a peer in your sector; it’s that cute cat video on YouTube.

Get to the point quickly with a concise, 15 minute presentation. At a physical event, companies have the luxury of trapping investors in a room… not so with a virtual event. Also, use plain English.

4.) Simplify your slides’ visuals.

All webcast platforms shrink your slides down – plus we now have the scale of mobile tablets to think about. Nothing smaller than 24pt font size. Detailed photos, like aerials maps, will be illegible. Crop in to the key point you want to make. No snazzy slide transitions.

5.) Speak sloooooooowly. 

Although you are on the phone, try to keep the pace of a live presentation. We all tend to talk fast on the phone.

6.) For retail investors, deliver the most important message first. 

“Yes, we offer dividends.” Asking about dividends is the #1 question asked at

7.) You may need to seed the Q&A with a couple of your own questions. Live or online, getting over that first question hump is important. Don’t, however, throw a softball – use a real question from your recent earnings call. The goal is not to “fool anyone,” just to get the dialog going.


8.) Rehearse the presentation on your company’s WebEx type account to non-technical and non-financial people. This will amplify the pros and cons from the points above.


PS: For VERY detailed insight into the minds of your investors, request our “How do investors consume investor relations content” study. Free here.


PR departments work with financial journalists almost 2:1 over IR

Last month, with the release of our fifth annual Social Journalism Study, we provided an in-depth look at journalists’ perspectives on social media – globally –  and how their understanding and usage of social media has evolved. You can get the report here.

Many key findings were disclosed, including:

  • Journalists believe social media is most important for publishing and promoting content and interacting with audiences
  • Facebook and Twitter are the top platforms, but most journalists use a variety of social media
  • About half of U.S. journalists feel they could not carry out their work without social media
  • Most journalists feel they are more engaged with their audiences because of social media
  • A majority of journalists have a good relationship with their PR contacts, though less than half consider them to be reliable sources
  • Email continues to be the preferred form of contact between journalists and PR professionals, but social media follows closely behind

From this, the discussion moved from PR to IR and their interactions with journalists. It occurred to me that I had never read a report on the interactions IR actually have with financial journalists. So we asked our IR Room clients and  other IROs. We received 236 responses.


As you see, we have a reverse bell curve, with close to 2:1 for IR departments not interacting with financial journalists.

“[When] possible I bring key financial journalists to the attention of PR and advocate for proactive interaction with them.”

“We used to have a communication manager that maintained contact with media, but with the energy downturn this role has been pushed to IR. With that said, IR responds to incoming requests but does not actively foster relationships with the media.”

The other interesting point is that the IR departments that are proactive (“yes’) towards targeting journalists are all small cap and below, and the largest parentage of “no” are large and above.

Lastly, reviewing these two findings again…

  • About half of U.S. journalists feel they could not carry out their work without social media
  • Most journalists feel they are more engaged with their audiences because of social media

… illustrates that social media is absolutely both a source and an audience that investor relations, albeit kicking and screaming, need to listen to.


Investor relations and content credibility

Investor Relations Officers – and their support network – have been deep into content marketing long before content marketers were into content marketing. The lessons that IR can share with marketing are  1.) truth, 2.) transparency and 3.) building content credibility.


That sounds pedestrian, however, the ramifications for a public company and its’ influencers’ content exaggeration has serious consequences via the SEC.

Washington D.C., Sept. 6, 2016 — 

The Securities and Exchange Commission today charged the CEO of a sexual health products retailer and a paid promoter with orchestrating fraudulent promotional campaigns to tout the company’s stock.

The SEC alleges that Scott S. Fraser, who also was a major shareholder in Las Vegas-based Empowered Products Inc., separately ran a newsletter publishing business and hired Nathan Yeung to secretly help him promote Empowered Products through online newsletter articles purportedly authored by independent writers. But Fraser and Yeung actually authored, authorized, and distributed the rosy articles about Empowered Products themselves, working under such pseudonyms as “Charlie Buck” and then hiring other promoters to disseminate the promotions to their respective subscriber lists in exchange for fees. Meanwhile the promotions failed to disclose that Empowered Products and Fraser approved and paid for the advertisements.

Washington D.C., Sept. 16, 2016 — 

The Securities and Exchange Commission today announced fraud charges in a scheme involving illegal stock sales and false financial filings of a company that makes containers for growing marijuana.

An SEC investigation found that William J. Sears orchestrated the scheme along with his brother-in-law Scott M. Dittman, who was the CEO and sole officer at Fusion Pharm Inc. while Sears concealed his control from behind the scenes. Sears and Dittman hired Cliffe R. Bodden to help them create fraudulent corporate documents that enabled Fusion Pharm to issue common stock to three other companies controlled by Sears, who then illegally sold the restricted stock into the market for $12.2 million in profits while hiding the companies’ connection to Fusion Pharm.

Washington D.C., Sept. 13, 2016 — 

The Securities and Exchange Commission today announced that a self-proclaimed “stock trading whiz kid” and his stock newsletter company in Los Angeles have agreed to pay nearly $1.5 million to settle charges that they defrauded subscribers through false statements and misrepresentations.

You get the point.  Per the SEC, painting a “rosy” picture is punishable.

Fraudulent “advertising” has always been with us – however in the hot buzz of content marketing, it’s detrimental. Exaggerative content marketing of your services may not have the legal gravitas of equity markets’ pump-n-dump, however its important to recognize the ease of fact-checking by prospects is instantaneous. Your content credibility is instantaneous. Building trust (to drive an audience further along the buyer’s journey) is instantaneous.

Two examples:

  • The current presidential environment – fact checking is a real-time action during live speeches.

Most all of content marketing discussions focus on the creation of quality work ie whitepapers, blogs, infographics, webinars. IR departments, unlike marketing, don’t have the same freedom to “create” content – so content credibility is paramount. The mantra we express to clients…

“Shareholder communications builds shareholder confidence. Shareholder confidence builds shareholder value.”  

…is their investor’s/buyer’s journey. Marketing certainly has better tracking mechanisms for their buyers, but the end product is the same. (Substitute the word “customer” in staed of “shareholder” and you’ll understand what I mean.)

Forget about compliance. For investor relations, XBRL is about communications.

XBRL data is shaping the future of the capital markets – just no one knew it.

Since 2009, the capital markets / investor relations industry has been waiting for the broad, universal and simultaneous adoption of XBRL, the “machine-readable” code that underlies SEC forms 10-Q and 10-K. That’s not going to happen – at least not as a Big Bang.

What is happening, in a more Darwinian manner, is that is XBRL has quietly worked its way into the daily dataflow of thousands of investors – in the quantitative trading platforms built by extremely smart people: engineer predictive-modeling-data smart, not Wall Street speculative-gut-reaction smart. Websites like and are two of the data hubs for quantitative trading developers.

The best allegory I’ve read is to compare investing with the weather. Legacy Wall Street is still largely based on experience: they can look up in the sky and make a trade decision – like a sheep herder who has worked the same hillside for years. A “Quant” (quantitative trader) is more like a meteorologist. They work computer-based statistical analysis strategies to execute trades when certain data-driven conditions are met.



Today, at many companies, IR and SEC reporting live separate, but equal lives.


XBRL is the delivery mechanism of your earnings announcement. It’s the earnings call for Quants.

Quants are not on your quarterly conference call, listening to your CEO’s earnings narrative. So, how are Quants receiving your earnings narrative? Directly from you via your XBRL filings. This is why we have our continual hissy-fit blog posts about XBRL quality. Forget about compliance. For investor relations, XBRL is about communications.


Quants need to have the same level of IR oversight as any buy-side analyst


With the explosion of Quants and the equally aggressive Fintech industry, investor relations teams now need to reach a growing investor base that will not ever respond to traditional, narrative-based investor relations. For Quants, XBRL is the narrative – and if the XBRL has errors that corrupts their models, the narrative is not communicated and they’ll bypass that stock.

We counsel clients that a better moniker for building relationships with Quants is financial communications rather than shareholder communications. There is no denying that, looking forward in our Big Data world, the vocabulary of financial communications is XBRL. IR needs to double-check that your company is speaking in that tongue correctly.

Forget about compliance. For investor relations, XBRL is about communications. Get involved. Ask your SEC reporting team for a recap of the most recent filing.

How to write your earnings release for the Associated Press’ automatic reporting engine

Last week, a very interesting question was posed by a client: “Do I need to write my earnings release in any special manner to facilitate better quality reporting by the Associated Press’ (AP) automated journalists?”

The short answer: “No.”


Here’s the long answer:

Working backwards from the AP, we contacted Automated Insights, the company that developed the Wordsmith application behind the AP robo-reporters. Wordsmith is an artificial intelligence (AI) platform that generates human-sounding narrative articles from raw data. The AI stories sound like a person crafted each one of them individually.

After a brief exchange with Automated Insights’ head of communications, James Kotecki, he sent us over to Bryant Sheehy, Director of Business Development at Zacks Investment Research. Zacks’ research is trusted by dozens of financial portals including Yahoo!, MarketWatch, NASDAQ, Forbes and Morningstar. Zacks is where the raw data originates

Now we are at the core of the question. How does Zacks’ extract data from your earnings release? They read it. With actual eyeballs. Owned by actual people. Those actual people then manually enter your numbers into a database.

Only the writing aspect of the AP process is automated, not the data parsing. At its simplest, the Wordsmith application is a “form letter,” however the sophistication of the AI creates very readable content on an immense scale. It has hundreds of applications including sports reporting and personalized customer letters.

Points to be aware of:

The data most coveted in your earning release is the GAAP reporting of Net Income, EPS and Total Revenue. The more buried these numbers are, the slower the reporting. Sheehy commented that with a clear and obvious presentation of your GAPP numbers, your earnings data can be at the APs robo-fingers between 2 – 5 minutes. If your release is still placing prominence on non-GAAP, research can take up to 30 minutes – especially if a web disclosure model is used and researchers need to navigate to the IR website. He did add that the research team does learn, quarter-to-quarter, how each issuer publishes their numbers which aids in increasing speed.

A final thought is that, thanks to the SEC’s newest guidelines (read here) regarding GAAP and non-GAAP reporting, the research team at Zacks will have an easier time getting your results into Wordsmith, into the AP newsfeed and quickly and transparently out to shareholders.

How to engage with investors in the age of the activist: Private Equity’s expectations



QUESTION > How have private equity firms and other alternative investors changed the expectations for shareholder communications?

Jason M. Halper > In some ways, you can look at PE firms as the original activists, going back to the 1980s with companies such as KKR. But they had a different model, which was leveraged buyouts, taking companies private, reforming them and then going public with them again. Many times, the rationale was similar to what’s happening with activists, however – the PE firm would argue that the company was underperforming and would do better under different management.

In the current era, I think PE firms and other alternative investors come into this in a few different ways. You could have a private equity fund either aligned with an activist or acting as a white knight or a white squire for a company. For instance, you could theoretically place a large block of stock with a PE firm to deter an activist. So I think PE firms and non-activist hedge funds are potential wild cards. Ultimately, if you know some significant PE firms are in your space, it pays to engage with them on a regular basis, because, firstly, they could be adverse to you in some way in the future, or secondly, they could be potential allies.

Kai Haakon E. Liekefett > PE investors are typically welcomed with open arms by companies, for a number of reasons. For starters, they have capital that companies may want. Also, most PE funds are prohibited legally in their formation documents from going hostile or activist against companies, so it’s safe to talk to them. This is changing on the margins, but the vast majority of PE funds still have a prohibition on waging proxy contests.

As for hedge funds and other alternative investors, what we tell our clients is that when you receive a request for a meeting from an investor you don’t know, we look hard at that investor’s history and try to determine whether it has a record of activism or of otherwise making life difficult for companies. That doesn’t mean we would advise clients not to meet with them – in most cases, we advise them to meet even if it is a known bomb-thrower, because it’s always better to know your enemy than to stiff-arm them. We are also seeing a lot of first-time activists in recent years, so looking at activism history doesn’t necessarily tell you whether a fund is going to be an activist going forward.

Lex Suvanto > The thing about PE is that you know PE firms are inherently long-term investors. They may bring a different kind of rigor in their investment analysis, or a different approach to making an investment in a company. But in reality, they don’t change how companies communicate, because they still need a strong investor base and a strong investor story, and they still need to maximize shareholder value.


Prominence is the key concept with the SEC’s new guidance for earnings releases

This earnings season will be the first since the SEC’s May 17th revised C&DIs (Compliance and Disclosure Interpretations) guidance regarding the presentation of GAAP and non-GAAP measures in earnings releases.

SEC Chair White recently spoke of having noteworthy concerns about issuers who present non-GAAP measures “too far and beyond what is intended and allowed by the SEC’s rules” and “troublesome practices which can make non-GAAP disclosures misleading.” Lets tag them as the bad non-GAAPles.

gaaplesThe SEC is aware that just a few bad non-GAAPles have ruined the whole batch

To address this, the SEC has issued new and updated CD&Is regarding non-GAAP measures. The new and revised C&DIs do not represent a formal rule change. However, they are a warning signal to issuers and absolutely demonstrate the SEC’s concerns regarding inappropriate adjustments presented by companies on their non-GAAP financial measures. The SEC is watching earnings releases closely.

Much of the new guidance is strategic if not “philosophical” around the actual measures that an issuer uses to calculation their earnings and guidance. That’s for the Audit Committee to work on. Tactically, the SEC called-out some non-GAAP disclosure presentation practices that are common in earnings releases. The bottomline is that issuers cannot disclosure their results in manner that places undue prominence on the non-GAAP numbers.

“Prominence” is the key concept here. Earnings release practices that the SEC has specified as non-acceptable include:

  • Presenting a non-GAAP measure before its most directly comparable GAAP measure – including within an earnings release headline or caption
  • Presenting a non-GAAP measure using a style of presentation (e.g., bold, larger font) that emphasizes the non-GAAP measure over the comparable GAAP measure
  • Omitting comparable GAAP measures from an earnings release headline or caption that includes non-GAAP measures
  • Presenting a full income statement of non-GAAP measures or presenting a full non-GAAP income statement when reconciling non-GAAP measures to the most directly comparable GAAP measures
  • Providing discussion and analysis of a non-GAAP measure without a similar discussion and analysis of the comparable GAAP measure in a location with equal or greater prominence.

To mitigate risk of non-compliance, issuers that plan to present non-GAAP financial measures in their earnings releases may need to modify their disclosure practices. Chair White strongly urged issuers to consider the updated guidance and “revisit their approach to non-GAAP disclosures.”

Although the SEC is uber-focused on earnings releases with this new guidance, the SEC also urges issuers to uphold these new guidelines in their non-earnings (EDGAR filed) shareholder communications such as in presentations to investors and analysts, annual reports and IR websites. Issuers should communicate with shareholders in a consistent manner – the stock narrative told outside of the SEC filings should be the same as the narrative found within in the issuer’s SEC filings.

By now, hopefully IROs have had in-depth conversations with their corporate securities lawyers. NIRI members should listen to the educational webinar.