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Corporate Counsel Section Website › Newsletters › The Business Lawyer, July 2011 › Global Businesses, Global Problems Disclosing Catastrophic Events

Global Businesses, Global Problems Disclosing Catastrophic Events

Article Date: Monday, July 11, 2011

Written By: Rick Jordan

The impact of the March 2011 earthquake and resulting tsunami in Japan and the region has caused many U.S. issuers to scramble, for example, to replace their manufacturing and supply capacities and otherwise respond to the crisis. Retail companies especially have suffered, as Japanese consumers struggle to repair their shattered homes and care for loved ones rather than buying the latest products or technology on the market.

Back in the United States, executives and their consultants have responded by analyzing current and potential business disruptions, leaving company counsel to help determine what disclosure obligations, if any, the issuer may have with the SEC.

As issuers continue to respond to the crisis in Japan and the region, and other catastrophic events, such as the recent tornados in the southern United States, the following may help navigate applicable U.S. securities laws:

Risk Factors – Risk factors generally describe the most significant factors that may affect the issuer’s business or future performance. The SEC requires disclosure of risk factors in companies’ Annual Reports on Form 10-K, and any material changes to those factors must be disclosed in subsequent reports, such as Quarterly Reports on Form 10-Q. When catastrophic events occur, companies should review their risk factors and consider what, if any, changes are appropriate. It may be worthwhile to review the filings of other companies in similar industries to gauge how others have responded and disclosed these events.

Current Reports on Form 8-K – A catastrophic event generally will not result in a Form 8-K disclosure obligation. Depending on the potential impact of the catastrophic event, however, issuers should consider permissive disclosure-either directly on Form 8-K or by press release that is then filed as a Form 8-K exhibit. In addition, as the implications of these events evolve, and companies are forced to engage new suppliers, manufactures, sourcers and other market participants, or modify arrangements with these participants, corresponding disclosure may be required on Form 8-K.

Financial Statements – Some of the large auditing firms have issued reports on how the Japan crisis and resulting disruptions may affect a company’s financial reports. In Deloitte’s recent report (PDF), for example, it urged companies to address issues ranging from accounting for impairments to assets to adjusting the income statement presentation of any losses from the disaster.

MD&A – In addition to accounting for catastrophic events in the financial statements and notes, issuers should pay particular attention to the Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A) portion of their Annual and Quarterly Reports on Form 10-K and 10-Q. Management should discuss and analyze the impact of any catastrophic events on any trends, demands and commitments, including any emerging uncertainties.

Regulation FD – As they respond to catastrophic events, issuers should beware of making any inadvertent disclosures of non-public information. Under Regulation FD, when an issuer discloses material nonpublic information to certain persons, the issuer must disclose that information publicly to provide full and fair disclosure to all market participants.

Antifraud Liability – Issuers should ensure that they do not make any material misstatements or omissions in discussing the impact of any catastrophic events in periodic reports or press releases, on their website or in any oral communications, such as earnings calls. Liability under Section 10(b) of the Exchange Act and corresponding Rule 10b-5 can be civil or criminal, and generally turns on the materiality of any misstatement or omission. Any concerns over materiality should be discussed with counsel in detail.

Stock Exchange Requirements – Issuers analyzing disclosure obligations upon a catastrophic event should take into account any stock exchange requirements. For example, Nasdaq Marketplace Rule 5250(b)(1) requires that issuers notify Nasdaq at least ten minutes before releasing certain material information to the public during business hours. In the unusual event that an issuer is permitted to maintain confidentiality of a material event, such as the case where immediate public disclosure would prejudice the issuer’s ability to pursue its legitimate objectives, Nasdaq-listed issuers still must disclose the information to Nasdaq upon request.

SEC Reporting Relief – The SEC has authority under Section 36 of the Securities Exchange Act of 1934, as amended, to provide exemptions from periodic reporting and other relief. In 2005, for example, the SEC used this authority (PDF) to provide relief to issuers in the aftermath of Hurricane Katrina. While the SEC has not afforded issuers similar relief with respect to the Japan crisis, it may do so upon any future catastrophic events.

Our Take?
Catastrophic events not only affect a company’s bottom line, but also may raise SEC and stock exchange disclosure obligations and other issues. After getting a handle on the business effects of any catastrophic event, issuers should be considering, among other things, the issues raised above and consulting with counsel and outside auditors to ensure complete information, and avoid misleading information, in the market.

Rick Jordan is a corporate and securities associate in the Dallas, Texas office of Gardere Wynne Sewell LLP. This article originally appeared at “From The Sox Up,” a blog hosted by Gardere’s Public Securities and Corporate Governance Team (available at www.fromthesoxup.com). It is reposted here with permission. Rick may be reached at 214.999.4839 or rjordan@gardere.com.
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.