April 24, 2006

Your Upcoming Form 10-Q: What to Do With Risk Factors?

Listening to Meredith Cross of Wilmer Hale at a local seminar last week, I was reminded that, under the new ’33 Act reform, companies are now grappling with how to handle the risk factor discussion in their upcoming Form 10-Qs.

For those of you that just filed Form 10-Ks recently, you will recall that the reform amended Form 10-K to require companies to describe – under the caption “Risk Factors” and only “where appropriate” – the risk factors described in S-K Item 503(c) that are applicable to the company. As the adopting release clarified, “a risk factor discussion in a Form 10-K may not be necessary or appropriate in all cases, depending on the issuer.”

Now, companies must consider another new disclosure requirement – to “set forth any material changes from risk factors as previously disclosed in the registrant’s Form 10-K.” A challenge is presented because the SEC stated in the adopting release that “we discourage, unnecessary restatement or repetition of risk factors in quarterly reports.” Thus, the SEC doesn’t appear to want a “cut and paste” of the 10-K risk factor section in the 10-Q, but rather an update of any risk factors described in the 10-K.

It remains to be seen how closely the SEC Staff will enforce this “discouragement,” as some companies may wish to follow their established routine of including all risk factors in each Form 10-Q, either for forward-looking safe harbor purposes or for the benefit of investors who may not know that they otherwise would need to search back through earlier filings to determine what other risks exist for that particular company.

To help you sort through this predicament, in our “Form 10-Q” and “Securities Act Reform” Practice Areas, we have posted a list of companies that already have been faced with complying with the new 10-Q requirement.

Are These Hedge Fund Results Real?

Wondering where the next large scale fraud is going to come from? I think Floyd Norris might have hit the nail on the head in his column in Friday’s NY Times. Maybe I’m getting paranoid in my old age, but there always is a “next” big wave of fraud and it seems like it usually emanates from the latest “too good to be true” investment vehicle.

Handling Whistleblowers

In this podcast, Phil Johnston, Special Counsel of Nexsen Pruet, a former CEO of two public companies and a co-author of the Corporate Governance Leadership Blog, provides some insight into what works in implementing a whistleblower compliance program, including:

– In the overall scheme of compliance, how important is Section 301(4) of Sarbanes-Oxley?
– Not-for-profits are also implicated by Sarbanes-Oxley as Section 301(4) makes it a crime to retaliate against a whistleblower. How have not-for-profits reacted to this new law?
– Based on your own experiences from serving on a director on five different public company boards, what do you see as the biggest mistakes that companies typically make in implementing their whistleblower compliance programs?
– I understand you have done research in the whistleblower cottage industry, including visiting a number of service providers. What should boards consider in selecting a service provider?