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SEC Issues Final Rules on Dissemination of Earnings Releases
On January 22, 2003, the Securities and Exchange Commission adopted final rules requiring public companies to furnish to the SEC all releases or announcements disclosing material non-public financial information about completed annual or quarterly fiscal periods. The requirement to furnish earnings releases and similar materials will apply to earnings releases and similar announcements made after March 28, 2003. The SEC’s adopting release is available at www.sec.gov/rules/final/33-8176.htm. The SEC added new Item 12, “Disclosure of Results of Operations and Financial Condition” to Form 8-K. New Item 12 does not require that companies issue earnings releases or similar announcements, but if a company chooses to issue an earnings release, the filing requirements of Item 12 will be triggered. A company must make the Item 12 filing within five business days of any public announcement or release disclosing material non-public information regarding a company’s results of operations or financial condition for a completed annual or quarterly fiscal period. A company must briefly identify the announcement or release and include the announcement or release as an exhibit to Form 8-K.
Repetition of previously disclosed information (or the release of the same information in a different form, such as in an annual report to shareholders) does not trigger a new requirement to furnish that information under Item 12. In addition, Item 12 applies only to earnings releases concerning a fiscal period that has ended. It does not apply to earnings estimates for future or ongoing periods, unless those estimates accompany information about past fiscal periods as well.
Item 12 includes an exception from its requirements where non-public information is disclosed orally, telephonically, by webcast, by broadcast or by similar means in a presentation that is complementary to, and occurs within 48 hours after, a related, written release or announcement that triggers the requirements of Item 12. Under these circumstances Item 12 would not require a company to furnish an additional Form 8-K with regard to the information that is disclosed orally, telephonically, by webcast, by broadcast, or by similar means if:
- the related written release or announcement has been furnished to the SEC on Form 8-K pursuant to Item 12 prior to the presentation;
- the presentation is broadly accessible to the public by dial-in conference call, webcast or similar technology;
- the financial and statistical information contained in the presentation is provided on the company’s web site, together with any information that would be required under Regulation G; and
- the presentation was announced by a widely disseminated press release that included instructions unless those estimates are included in the public announcement or release of material non-public information regarding an annual or quarterly fiscal period that has ended.
For more information regarding new Item 12 of Form 8-K, please contact one of our securities attorneys.
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